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JUDGMENT Hansaria, C.J.
1. Chilka. A dream land for the poets and creative artists is now in throes of trouble, leading even to "Chilka Bachao" movement taken up by eminent persons of the State. This is because Chilka has become a "stormy island", as a news headlined in Hindustan Times of 13-9-1993 says, and because Chilka is "getting choked", as flashed in another news of Hindustan Times dated 26-9-1993. The net result is that Chilka, which is the largest inland brackish water-body of its kind in Asia and which used to span before eyes like a dream and offer plenty of opportunities to enjoy and rejuvenate our soul, has become an eye sore because of havocs being played by mafias who have become the real monarchs of Chilka. All this is due to "prawn-dollar" disaser developing around Chilka, as would be seen from what is being noted later.
2. How can in such a situation Chilka, dear Chilka, provide livelihood to about one and half lakhs of people (both fishermen and non-fishermen) living in and around Chilka in about 132 villages, not to speak of attracting 132 species of migrating birds from distant places like Siberia, which by itself has been an attraction of tourists from far and wide? The root cause for this lamentable situation is the failure of the Government to recognise the reality of the situation in Chilka and massive degradation of its eco system. Nothing can be more painful and nothing would be more rewarding if a solution can be found which would be fair and equitable in so far as the settlement of Chilka fishery sources is concerned and would even provide extra revenue to the Government, of course, not at social cost which intensive prawn culture has foisted, not only on the people in and around chilka but also the entire populace of the State. The social costs are environmental costs, displacement cpsts and user costs, to which our attention has been drawn by the Das Committee, to whose report we would advert later. Let, therefore be a re-orientation in thinking where the economic growth does not become an end in itself but is turned to the improvement of quality of human life which would be possible when the concept of sustainable development is adopted, which would be possible where humanity "takes no more from nature than nature can replenish", which was the call of the Rio Conference held in June, 1992.
3. This Court has been approached by 36 primary fishermen co-operative societies, who are the petitioners in the three petitions, because, according to them, the principles of settlement of fisheries in Chilka adopted by the Government in its Revenue and Excise Department as contained in the Memo December 31, 1991 (which is Annexure9 to O.J.C. No. 1653/92) are radically different from those followed earlier, so much so that the present policy would adversely affect the livelihood of about a lakh of fishermen who in the past were being given settlement of fisheries in Chilka because of their traditional right. The present policy, on the other hand, contains a tilt in favour of the non-fishermen and ends in encouraging a mafia raj in Chilka. According to the petitioners, the policy is also unintelligible, arbitrary and has conferred unguided powers on the Collector, Puri, and some other officers named in Annexure 9.
4. After the petitions were filed, applications were made on behalf of the non-fishermen to allow them to intervene which prayer was conceded. The cases were once heard on 16-12-1992 and 17-12-1992 and then on 9-2-1993 and 12-2-1993. A need came to be felt, for reasons given in the order passed on 12-2-1993, to appoint a fact-finding committee to study some aspects mentioned in the order of that date. Shri Ratho appearing for some of the petitioners subsequently suggested some elaboration of the questions framed on 12th February, 1992, and ultimately the following questions came to be referred :--
"(i) Have the Primary Fishermen Cooperative Societies sub-leased the fishery sources settled with them to non-fishermen from 1988 onwards (the last policy being of 1988 which has been changed by the present policy), and if so, to what extent?
(ii) What had been the traditional right of the non-fishermen regarding fishing in Chilka?
(iii) How many non-fishermen in the neighbouring villages have taken up fishing in Chilka and since when?
(iv) Have traditional sources like 'Bahani', 'Jano', 'Dian' and 'Uthapani' been converted into prawn sources, and if so, how many and since when?
(v) Have gheriband has been constructed by the Primary Fishermen Co-operative Societies inside Chilka? If so, extent of the same.
(vi) What is the actual area of the landmass?
(vii) Would culturing of prawn in the landmass affect the ecology of Chilka?
(viii) What price did prawn fetch at the source in December, 1990, 1991 and 1992 and what has been the market price in these months? What quantity of prawn is being exported every year and by whom?
(ix) What has been the role of mafia in fishing trade and who has engaged them?
(x) Whether the Primary Fishermen Cooperative Societies have converted the sources leased out to them from 1988 onwards into prawn culture units by erecting embankments and other barriers? If so, the number of such fishery sources like Jano, Dian and Uthepani which have been so converted and since when such conversion has taken place and the extent of such conversion.
(xi) Have the non-fishermen inhabiting the villages in the neighbourhood of fishery-sources being leased out to Primary Fishermen Co-operative Societies as per the 1988 scheme, taken up fishing as their profession, and if so, their probable number and since when?
(xii) How many non-fishermen of the villages in the neighbourhood of fishery sources leased out from 1988 onwards have taken up fishing as their profession and since when?
(xiii) What is the maximum area of land-mass convered by Chilka during high, floods in the rainy season and what is the area of Chiika during summer?
(xiv) Would culturing of prawn in the recognised sources like Jano, Dian and Uthapani which have been sub-leased to the Primary Fishermen Co-operative Societies from 1988 onwards affect the ecology of Chilka and affect its fish resources as well as the birds coming from outside in winter?
(xv) What would be the average expenditure incurred for prawn culturing in one acre of area including conversion expense and what would be the approximate average yield per year? What are the different steps/ measures/processes for prawn culturing?"
5. As to the constitution of the Committee, it was thought that apart from the Chairman, it should have one representative of Primary Fishermen Co-operative Societies, one representative of non-fishermen, one expert on ecology and the Director of Fisheries should be the Member-Secretary. Subsequently, after hearing the parties, it was decided that Shri G. S. Das, who had undertaken a study on the problems of fishermen co-operatives in Chilka in the second half of seventies should be the Chairman, Dr. K. V. Rama Rao was chosen as an expert on ecology because of some work relating to the eco system of Chilka having been done by him. Shri B. B. Misra, Advocate of Puri Bar, was named as the representative of Fishermen Co-operative Societies and Shri Bhimsen Sahu, Advocate, as the representative of non-fishermen. The Court allowed the Collector, Puri, and subsequently Authorised Officer of the Central Co-operative Marketing Society, to be special invitees.
6. The constitution of Committee and some ancillary matters like terms of working of some members came to be finalised on 26-4-1993 'and two months' time was given to the Committee to submit its report, which time was afterwards extended up to 15th August, The Committee first met on 29-4-1993 and finalised its report on 12th August and forwarded the same to this Court on 16th August.
7. The report of the Committee runs into 158 pages; 68 pages contain discussion and finding; in remaining 90 are 12 appendices. It is unanimous; Shd Misra, representative of Fishermen Co-operative Societies, has, however, raised some objection regarding reliance and incorporation of Appendices VII to XII, to which we shall advert later.
8. The Committee adopted the questionnaire method and elicited relevant information from various quarters. It invited some persons to depose and undertook field visits to take evidence of local persons and it inspected some disputed fishery sources. In Appendix I, 'Questionnaires' have been given and Appendix II contains list of 11 invitees which includes Ministers of Fisheries and Revenue of the State Government and Shri Banka Bihari Das, ex-Minister, Revenue (who is spearheading "Chilka Bachao" movement), and Shri A. K. Jena, M.L.A., Brahmagiri-cum-Government Chief Whip of Orissa Legislative Assembly.
9. For the benefit of all, the Committee has given the summary of its main findings, which finds place at pages (iii) and (iv) of the report. It would be appropriate and useful to quote the same in fulls :--
"1. The fishermen living in and around Chilka do enjoy a traditional right to the fishery sources of the lake.
2. The non-fishermen living in the neighbourhood villages of Chilka do also enjoy a traditional right to fishing to the lake, though on a limited scale.
3. With the onset of culture fishery and prawn culturing in Chilka in the eighties, there has taken place a large-scale subletting of the leased-out fishery sources by the Primary Fishermen Co-operative Societies, massive illegal encroachment of fishery sources by the non-fishermen and outsiders, as well as widespread conversion of traditional fishery sources like Jano, Dian, Uthapani, Bahani into prawn culture ponds or net-enclosure gheris.
4. The third party subletting and illegal encroachment in the lake are squarely responsible for the induction of mafias into Chilka. As such, both Primary Fishermen Co-operative Societies and the non-fishermen are responsible for the prevalent mafiaraj in Chilka today.
5. The adoption of extensive culture fishery in Chilka has marginalised the interest of the traditional fishermen. Their traditional rights to fishing in the lake have been usurped by the non-fishermen and outsiders.
6. The Chilka fishery lease policy of the Government in the past is observed to he faulty in the sense that it was not realistic, exhibiting lack of co-ordination between different concerned departments, as well as the conspicuous lack of a built-in mechanism to prevent subletting, illegal encroachment and mafiaraj in Chilka lake.
7. In the absence of a thorough survey and appropriate demarcation of fishery sources in the lake, the distinction between the 'Capture' fishery and 'Culture' fishery as has been made in the Government lease policy of December, 1991, remains arbitrary and ambiguous and as such, it is likely to perpetuate and aggravate the existing conflicts between the fishermen and non-fishermen over the fishery sources.
8. The massive adoption of extensive and intensive culture fishery for prawn culture is positively harmful to the lake environment and will lead to a massive degradation of the eco-system of Chilka, although the extent of environmental hazards and damage in case of the former is relatively less than in the latter case provided extensive culture fishery is confined only to the fringe areas "of Dian and Uthapani in the lake by pen culture."
10. After the report was received by the Court, Some objections were filed principally by the petitioners in C.J.Cs. 5643/92 and 8422/92. The cases were thereafter heard on 4-11-1993, on which date, though the hearing was closed, some further materials were required to be put on record by the learned Government Advocate, which was done on 12-11-1993, 4-11-1993 and 16-11-1993 before which, Shri Ratho had also filed further notes on 11-11-1993.
11. To ascertain these, we have to know the policy of 1991, as contained in Annexure 9 (supra). The relevant part of the same is as below :--
"1 am directed to say that instructions regarding principles of settlement of fisheries in Chilka lake were last issued in this Department letter No. 48494/R, dated 27-8-88 read with letter No. 65742/ R., dated 12-10-88 and letter No. 32997/R., dated 30-5-89. The question of rationalising the principles of settlement of fishery sources in Chilka lake was under active consideration of Government for some time. After careful consideration, Government have been pleaded to issue the following guidelines to regulate settlement of Chilka fisheries with effect from 1-1-92.
(i) All Capture fisheries may be leased out for 3 years with 10% increase every year to the Central Co-operative Marketing Society or its successor in interest and primary societies may be allowed to get the sources on the basis of sub-lease from the Central Society. The Capture fisheries sources may be divided into convenient operational sizes in the interest of better management. In no case, the size of a particular source may exceed Acs. 1000. Wherever a traditional source such as Jano or Prawn source exceeds Acs. 1000, it may be suitably divided into smaller plots in the interest of effective administration of the source.
(ii) Each Primary Society may be given a viable culture fishery source on the upset price of Rs. 800/ - (Rupees eight hundred only) per acre per annum for a period of 3 years on the stipulation that each year the upset price will be enhanced by 10%.
(iii) Rest of the culture sources may be suitably divided into convenient sizes by the Collector. Such sources may include land-mass which is submerged during high water. Upset price of Rs. 800/- per acre per annum subject to enhancement by 10% every year may be fixed for 3 years and the sources may be leased out to a society/organisation formed by the inhabitants of the neighbouring village composed of people who are not members of the primary societies of fishermen. In case no such society/organisation turns up to have the source on lease Collector may lease such a source for 3 years to a nearby willing Primary Fishermen Society.
(iv) No source leased out to a primary fishermen society or society/organisation of villagers comprising persons not belonging to fishermen society may be permitted to be subleased.
(v) The settlement of fishery sources is indicated above will be subject to the following stipulations.
(a) Collectors, Puri and Ganjam may have the power to determine the extent of area of each capture and culture source within their respective jurisdiclion.
3. Collectors and the concerned Tahasil-dars shall have the power to seize boats/ nets/ bazza/dhaudi etc. involving clandestine catching of fish. On every such seizure minimum penalty of Rs. 1000/- (Rupees one thousand) only shall be imposed on boats including out-boards engine fitted boats having hull length of less than 25 ft. and Rs. 2,500/- (Rupees two thousand and five hundred) for boats having hull length of more than 25ft. and Rs.5,000/- (Rupees five thousand) for mechanised boats such as Traulers, steamers etc. XXXXX
9. Collectors and Tahsildars concerned may delegate powers of search, seizure and imposition and collection of penalises prescribed above to any authority subordinate to them.
12. The highlight of the policy and which is its most criticised part by the petitioners is granting of right to those who are "not members of the primary societies of fishermen", and who are "inhabitants of the neighbouring villages" having formed a society/organisation. To put in colloquial language, non-fishermen's right to acquire lease has been accepted. This would spell disaster for fishermen as it would very adversely affect their livelihood, is the main thrust of the argument of the learned counsel for the petitioners.
13. To decide the lis and to find a fair solution of the almost intractable problem with a view to achieve the end indicated in the opening part of the judgment, we think we would be required to address ourselves to the following issues :--
"(1) Nature of the right of the fishermen living in and around Chilka to fish in Chilka.
(2) Nature of the right of the non-fishermen living in the neighbourhood of Chilka to fish in Chilka.
(3) Whether the classification of fisheries by the policy at hand as capture and culture fisheries is unintelligible and arbitrary?
(4) Has the policy sacrificed the traditional right of fishermen in favour of the non-fishermen?
(5) The extent of culturing of prawn in Chilka and its effect on eco system.
(6) General effect of prawn culture on both fishermen and non-fishermen : advent of mafia raj.
(7) Is the upset price fixed by the policy unreasonable?
(8) Is the power of search given to the authorities named in Annexure 9 against the provisions of the Orissa Marine Fishing Regulations, 1981?
(9) Could the policy have authorised the named officers to impose penalty? Could the named officers delegate their power?
(10) Is the policy contained in Annexure 9 capable of achieving the desideratum mentioned in the opening part of the judgment by pruning, trimming and dressing it to the extent legally permissible?
14. Before delving deep and coming to grip with the aforesaid issues, we may have a bird's eye view as to how fishing had been carried on in Chilka from time immemorial and how many types of fisheries existed in Chilka before the present policy came to be adopted. Chilka had in the past belonged principally to the Rajas of Parikud and Khallikote. The fishery sources were, however, in the hands of Zamindars and Jagirdars and fishermen used to obtain the sources by paying royalty to the Rajas. After the abolition of estates, the Fishery sources vested in the Government in 1953, whereafter a reorganisation scheme was introduced in 1959, which is a land-mark in the history of mangement of sairats in the lake when various types of fishing operations came to be rationalised. In Professor Das's aforesaid book, the following has been stated at page 33 about the types of fisheries and their numbers :--
1. Bahani Fishing grounds 39
2. Jano Fishing grounds 112
3. Prawn Fishing grounds 69
4. Dian Fishing grounds 88
5. Uthapani Fishing grounds 8 Total 316
15. For the purpose at hand, it is not necessary to note as to what are the differences in the various types of fisheries, as the difference consisted in the mode of operations and the period of the same. What is of importance is to note that a co-operative structure was introduced in 1959 with a number of Primary Fishermen Co-operative Societies at the grassroot level (some of whom are the petitioners before this Court and would be referred as Primary Societies) and an apex body at the top known as the Central Fishermen Co-operative Marketing Society Ltd. (hereinafter "the Central Society"). The Central Society used to take the lease of the various fishery sources from the Government through the Collector and sub-lease them to the Primary Societies numbering about 48 (60?). The sources which were not taken on lease by the Central Society were being settled through open auction by the Tahsil-dars of Puri, Krushnaprasad, Banpur and Khallikote.
16. The aforesaid policy gave rise to a demand by the non-fishermen to lease out some fisheries in their favour either on the ground that the fisheries were adjacent to their villages or because of customary rights. The matter was considered by the State Government and the Chief Minister in his note dated 21-8-1965 addressed to the Secretary, Revenue and Fisheries, desired careful examination of the implication of the same and till then asked to maintain status quo, as stated in paragraph 12 of O.J.C. No. 1653 of 1992. This led to a study undertaken by the Central Inland Fisheries Research Institute; so also a study of the problems of the Fishermen Co-operative Societies in Chilka by Prof. G. S. Das of G.M. College, Sambalpur in 1974. One of the recommendations of Prof. Das was that the lease period should be extended to 3 years as against the prevailing one year so that the Primary Fishermen Co-operative Societies can take up long-range planning subsequently.
17. The aforesaid studies led the State Government to issue instruction in June, 1974 that all fishery sairats in the State should be settled with co-operative societies of genuine local fishermen, as per Annexure 6 of the aforesaid O.J.C.
18. The Government of India also in its turn constituted a committee to go into some aspects of development of the fisheries in Chilka and the committee in its report also recommended that lease of the fishery sources should be given to the Fishermen Cooperative Societies. This was followed by constitution of yet another committee under the chairmanship of the Revenue Divisional Commissioner, Central Division, Orissa. This committee came to be known as Conservation and Sanctuary Committee in Chilka, and this committee too suggested continuance of the existing system of giving lease of fisheries in favour of co-operative societies. The period of lease was, however, suggested to be extended to five years. The aforesaid O.J.C. deals with this aspect in paragraph 12.
19. The above shows that since the year 1959-60 till 1986-87, it is the Central Society which was being granted lease of all the fishery sources, which society in turn used to sub-lease the sources in favour of the Primary Societies. In case there used to he no Primary Society, Dian fisheries were being sub-leased to villages dominated by fishermen.
20. In December, 1986, a dispute arose between two groups of primary societies regarding fixation of barricades, popularly known as Khandas, while granting prawn sources. That was a dispute between fishermen inhabiting the lower and upper regions of the lake. The Collector, Puri, dealt with the dispute and gave some directions. The societies feeling aggrieved at the order of the Collector approached this Court in O.J. Cs. 1813, 1814 and 2155 of 1987. This Court desired a report from the Collector, Puri, which was objected by some. This Court disposed of the cases by order dated 28-1-1988, a copy of which is Annexure 11 to O.J.C. No. 5643 of 1992. A perusal of that order shows that as to the objections filed by the parties to the report of the Collector, this Court stated in paragraph 4 of its order that as the matter was pending before the Commissioner-cum-Secretary to Government, Revenue Department, it would be appropriate for the petitioners to appear before the said officer and put forth their objections before him, who, on hearing the objections, shall make such modification as thought fit and necessary. The Commissioner thereafter heard the objections and submitted his report to the Government regarding the principles of settlement of fisheries in his letter dated 27-7-1988, the main features of which, numbering five, have been noted in paragraph 15 of O.J.C. No. 1653 of 1992, the first of which is that all fishery sources should be leased out to the apex society to be ultimately sub-leased in favour of Primary Societies. Thereafter, the Central Society executed lease deeds from November, 1988 till Sunia of 1989 in favour of 281 sources. These leases were extended as an interim measure till 31st December, 1991 whereafter came the present policy dated 31st December, 1992, which has been noted above.
21. The case of the petitioners is that the policy which has held the field ever since 1959 was being worked out smoothly, subject to some objection regarding boundaries, till the present policy of 1991 came, which has tilted heavily in favour of non-fishermen and has very adversely affected the fishermen inasmuch as it has virtually taken away their means of livelihood and would help in increasing mafia raj already holding sway in the area.
22. Before we advert to the issues noted above keeping in view the aforesaid factual background of leasing out the fisheries, it would be proper to apprise ourselves about the limit of our power in a matter like the one at hand, which is a policy decision relating to leasing out of largess. The entire thinking in this regard look a new turn from the historic decision of Ramana Dayaram, popularly known as the International Airport Authority's case, AIR 1979 SC 1628. Further leaf to it was added by Kasturilal v. State of Jammu & Kashmir, AIR 1980 SC 1992. These two decisions contain till today the thinking of the apex Court on the scope of judicial review of a matter like the one at hand, the same being to test the policy on the touchstone of reasonableness and public interest.
23. Recently, a Bench of this Court in Jagdish Prasad v. State of prissa, (1993) 2 Orissa LR 476 had also to go into the scope of judicial review relating to a matter governed by policy, or the prerogative of the State. This aspect has been dealt in paragraphs 4 to 10 of the aforesaid judgment in which reference was made to certain English decisions and to State of Madhya Pradesh v. Nandalal Jaiswal, (1986) 4 SCC 566 : (AIR 1987 SC 251), and it was concluded that a policy decision relating to "grant of privilege", which would apply a fortiori to grant of largess, has to satisfy the test of reasonableness. It was further stated that for a decision to be reasonable, the same must work for public good and it must advance public interest. May it be noted that these arc the two main points which have been mentioned in the decisions of International Airport Authority and Kasturilal (supra).
24. Shri Rath appearing for some of the petitioners has referred us in this connection to Nuanai Primary Fishermen Cooperative Society v. State of Orissa, (1992) 74 Cut 36, because there also a primary cooperative society was before this Court, and that too making a grievance of grant of fishery sairat to an outsider who in that case happened to be a multi-millionaire and the. motivating force to grant lease in favour of the outsider was earning of foreign exchange by attracting tourists Toshali Sands. This Court observed, inter alia, that promotion of economic interest of weaker sections of the people is a part of the Directive Principles contained in Article 46 of the Constitution, and it was stated by referring to Kasturilal that any action which is inconsistent with or runs counter to the Directive Principles would prima facie incur reproach of being unreasonable. Of course, it was noted that there is always a presumption that Government action is reasonable and it is for the party challenging its validity to show that it is wanting reasonableness. The aforesaid judgment has dealt with these aspects in paragraphs 5 to 8.
25. Only one more legal aspect of the Case needs to be highlighted, the same being Court's approach when damage to ecp system is brought to its notice. Shri Lal appearing for the Central Society has in his written note dealt with this aspect of the matter and has referred, inter alia, to Sachidananda Pandey v. State of West Bengal, AIR 1987 SC 1109, in which setting up of a 5-star hotel by the Taj Group near the Zoological Garden in Calcutta was objected, inter alia, on the ground that the natural ecology would be unbalanced. Chinnappa Reddy, J. referred in paragraph 2 to what had happened in 1854 in which year 'the wise Indian Chief of Seattle' had replied (the whole of which has been quoted in that paragraph which runs into about 1 1/2 pages of the report) to the offer of 'the great White Chief in Washington' to buy their land by, inter alia, stating that "How can you buy or sell the sky, the warmth of the land?". The reply has been regarded as profound, beautiful, timeless and containing the wisdom of ages. This was regarded as the first ever and the most understanding statement on environment. The learned Judge thereafter stated that society's interaction with nature is so extensive that the environmental question has assumed proportions affecting all humanity. Industrialisation, urbanisation, explosion of population, over-exploitation of resources, depletion of traditional source of energy and raw materials and search for new source of energy and raw materials, the disruption of natural ecological balance, the destruction of a multitude of animal and plant species for economic reasons were counted as factors which have contributed to environmental deterioration. It was then observed in paragraph 3 that "If man is able to transform deserts into oases, he is also leaving behind deserts in the place of oases". In so far as our country is concerned, it was stated in paragraph 4 that here, as elsewhere in the world, uncontrolled growth and the consequences of environmental deterioration are fact assuming menacing proportions and all Indian cities are afflicted with this problem. On facts, however, being satisfied that the Government had shown full awareness of the problems of environment in making allotment of land for the purpose of construction of 5-star hotel, the appeal was dismissed.
26. Shri Lal has also referred to T. Damodar Rao v. Special Officer, Municipal Corporation of Hyderabad, AIR 1987 Andh Pra 171, in this connection, in which judgment, this aspect has been dealt in paragraphs 20 to 24. The learned single Judge has brought to the fore in this part of his judgment what is our legal and constitutional obligation to preserve and protect ecology and environment. After having noted what has been stated in Justice Krishna Iyer's "Pollution and Law"; Declaration of United Nations on Human Environment; African Charter on Human and People's Right, Justice Douglas, and then after referring to what finds place in the Environment (Protection) Act, 1986, the learned Judge stated as below in paragraph 24 :---
"From the above it is clear that protection of the environment is not only the duty of the citizens but it is also the obligation of the State and all other State organs including courts. In that extent, environmental law has succeeded in unshackling man's right to life and personal liberty from the clutches of common law theory of individual ownership. Examining the matter from the above constitutional point of view, it would be reasonable to hold that the enjoyment of life and its attainments and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature's gifts, without which life cannot be enjoyed."
27. With the aforesaid in mind relating to the scope of judicial review of the policy as contained in Annexure 9 (supra), let the issues mentioned above be examined seriatim, as it would be possible to answer Issue No. 10 only after we have known the answer to the first seven issues mentioned in paragraph 13. As to Issues 8 and 9 it may be stated that the same have ceased to be of importance in view of the statement made in paragraph 4 of the Memo filed by the learned Government Advocate on 14-11-1993, in which it has been stated that "the Government may not insist upon continuance of Clauses (3) and (9) in the 1991 lease principles relating to search, seizure and penalty, etc."
28. ISSUE No. 1 :
Nature of the right of the fishermen living in and around Chilka to fish in Chilka.
This was one of the points gone into by the fact-finding committee (to be referred as "the Das Committee" hereinafter) and its conclusion on this aspect is as below:--
"The fishermen living in and around Chilka do enjoy a traditional right to the fishery sources of the lake."
The above conclusion finds places at page (iii) of the report under the heading "Summary of the Main Findings of the Fact-Finding Committee Om Chilka Fisheries". None of the learned counsel for the parties has disputed this finding, and rightly, because, as noted in detail by the Committee, the fishermen have been from time immemorial fishing in Chilka. This is also the view expressed by Professor Das in his aforesaid study, as would appear from Chapter V.
29. Shri Rath appearing for some of the petitioners has drawn our attention to the use of the word 'do' in the aforesaid finding and contends that the Da? Committee did not entertain any doubt on this score. We have no hesitation in accepting this submission of Shri Rath, because, as already stated, the aforesaid finding of the Das Committee has not been disputed by any of the contesting parties.
30. ISSUE No. 2:
Nature of the right of the non-fishermen living in the neighbourhood of Chilka to fish in Chilka.
This is the real bone of contention between the parties inasmuch as, according to the learned counsel for the petitioners, the non-fishermen had a very narrow right to fish in Chilka, as their right was confined to catch fish by 'Poluha' or angling in Chilka for domestic consumption. Not only this, the "Poluha' right was subject to operation between 1st March and 31st July and it could be operated in areas specified in each village, to be fixed after taking into consideration the 'Jana' areas and the prawn areas in particular. As to fishing by angling, the same was allowed in areas not covered by Janas, Dians, etc.
31. In support of the aforesaid stand taken by the petitioners, Shri Ratho in his written note filed on 3-11-1993 has, inter alia, referred to Government Order No. 38561, dated 15-7-1967, mention of which has been made at page 15 of the report reading as below :--
"People living in villages around Chilka lake who are non-fishermen by caste have represented to Government from time to time that they have age-old right by custom and practice to fish in the foreshore water of Chilka and that their traditional rights of fishing should be recognised. Government have carefully examined their claim and have decided that the non-fishermen in Chilka did not exercise any such rights any time before. However, the question of granting certain facilities to the non-fishermen to catch fish in the Chilka foreshore areas for their domestic consumption."
32. Shri Mohapalra appearing for the non-fishermen, as well as Shri Das, learned Government Advocate, on the other hand, has taken us through various parts of the report in which this aspect of the matter has been dealt with. It would be burdening the judgment much if we were to refer to all that has been stated by the Das Committee at various parts of its report. It would suffice to say that this aspect has been dealt with by the Committee at pages 12, 17, 18. 22, 23 and 34 to 36. The Committee has in this connection referred to the pre-vesting period when even non-fishermen in groups used to obtain the fishery sources by paying royalty and licence fee to the Raja of Parikud. The Committee has then referred to the fact that out of 114 Dian fisheries, 88 were settled in favour of individual non-fishermen and 30 in favour of non-fishermen villages by the apex co operative body. Shri Mohapatra submits that this is not what is being stated for the first time by the Das Committee, but reference to the aforesaid study of Prof. Das would show that he has mentioned about "traditional rights of non-fishermen" in paragraph 2 of page 35 of his study. These learned counsel, therefore, strongly support the finding arrived at by the Das Committee as noted at page (iii) reading :
"The non-fishermen living in the neighbour hood villages of Chilka do also enjoy a traditional right to fishing in the lake, though on a limited scale". (Emphasis ours)
33. The aforesaid learned counsel would lay stress on the use of the word 'do' in the aforesaid finding, whereas Shri G. Rath and Shri B. B. Ratho would like us to bear in mind that according to the Committee, the right was on a "limited scale". These two learned counsel are, however, sore at the departure of the Government's stand in this regard. This stand has been taken because the Government for the first time took a stand in the present case about the non-fishermen also having an "age-old" right of fishing in the additional counter-affidavit filed on its behalf on 15-1-1993, as stated in paragraphs. It may be stated here that the additional counteraffidavit came to be filed on being desired by the Court, because when the cases were heard on 17-12-1992, it was found that the background of the change of the policy of the Government had been laid bare in the affidavit filed on behalf of the Collector, Puri, opposite party No. 2, which had been sowrn by a Touzi Officer. We felt disinclined to accept the statement made in that affidavit for the reasons of the change in the policy of the Government, and so, on the prayer of Shri Das, allowed time to file a proper affidavit from the appropriate person, the result of which was the filing of the aforesaid additional affidavit. Not only that the aforesaid counter-affidavit stated about this right of non-fishermen for the first time, but it put this right almost at par with that of fishermen. The counter does not stop there, as it further says that "the non-fishermen earn their livelihood only by fishing and they have no other avocation of life except fishing".
34. There can be no denial that the aforesaid grievance of the learned counsel for the petitioners is justified, because in the first counter-affidavit, which had been filed on behalf of the Collector, Puri, on 3-4-1992, which was the main counter filed in the case inasmuch as the counter-affidavit filed on behalf of opposite party No. 1, State of Orissa, was rather sketchy, all that has been stated in this regard is to be found in paragraph 7, wherein the stand taken is that a large number of sources in which the Central Society was not interested "are being traditionally settled with the non-fishermen villages". This stand is different from the one taken in the counter-affidavit filed subsequently.
35. In the further note, which Shri Ratho submitted on 11-11-1993, the right which the non-fishermen had of fishing in Chilka lake has been succinctly dealt with from pages 5 to 9, which states that for the first time, certain facilities like 'Poluha' fishing and 'angling' was given in 1967 by Circular No. 39561/R., dated 15th July of that year confining "Poluha' operation from 1st March to 31st July and 'angling' was allowed in specified areas only. Government letter dated 11-2-1972 further restricted right to catch fish for domestic consumption only with no right to sell. In the note, however, it has been fairly stated that the aforesaid conditions could not be implemented as there was unauthorised explaitation of fishery sources by non-fishermen during night by using petromax lights. Another aspect emphsised in the note is that fishing was taken to be low job in the past, and so, it got confined among people of lower castes. It is because of this that non-fishermen comprising of the people of upper castes did not take fishing as their main profession in the past and whenever the non-fishermen were given fishery sources, they utilised the services of fishermen, may be by employing them even as bonded labour. The note further says that even Government letter No. 48494, dated 27-7-1988 did not recognise any right of fishing in favour of non-fishermen.
36. There is nothing to doubt the aforesaid factual averments made in the aforesaid note of Shri Ratho. Indeed, the Das Committee does not say much about any right having been legally conferred on the non-fishermen relating to fishery sources in Chilka, but it does state that the reality was that the non-fishermen went on catching fish though unauthorisedly and on objection being taken there used to be law and order situation because the non-fishermen would not give up fishing, may be being "lured by the gold mine of prawn culture" as was stated by the Collector, Puri, in his evidence before the Chilka Intergrated Development Agency in 1990, noted at pages 27-28 of the Report. Indeed, the situation, according to the aforesaid evidence of the Collector, came to such a stage where Government became "a helpless spectator". In this context, the Committee has stated in passing at page 34 of the Report that even the apex body of the fishermen, namely, the Central Society, had settled 88 out of 114 Dian fisheries in favour of individual non-fishermen and 30 to non-fishermen villagers.
37. It is because of the above that the Committee in its report at page 17 has said that the earlier policies of the Government "failed to recognise the reality of the situation in Chilka". To apprise the Court about the reality, some figures have been given by the Committee at page 36 relating to the number of non-fishermen engaged in fishing operation in Chilka as below :--
Banpur 34 villages 13,320
2. Puri 45 villages 24,000
3. Krushnaprasad 75 villages 33,924 Total:
38. As to the aforesaid figures, learned counsel for the petitioner bring to our notice that the figures were given by the revenue authorities which were not verified; and secondly, they relate to 1992-93, whereas the policy is of December, 1991, and so, the Committee itself should not have based its finding on these figures. Shri Ratho takes the argument further and submits that the Committee seemed to be biased a little against the fishermen as while accepting the right of non-fishermen, it even mentioned at page 34 of its report in the last line about their traditional right "being confined, inter alia, to Chulimunda", which is really not asource like Dian and Uthapani, of which mention was made in this context, but is the name of tax/royalty paid at one time to Rajas of Parikud and Khallikote. This may not, however, be so, as would appear from what has been stated about 'Chulimunda' at pages 34 and 35 of Prof. Das's aforesaid study, wherein 'Chulimunda' has been taken as a type of lease at page 34 and as a right at page 35. We also rule out the allegation of bias, because even Shri Misra, representative of the fishermen in the Committee, is one pf the signatories to the report which is unanimous except for Shri Misra's aforenoted objection, which has nothing to do with the findings of the Committee.
39. As to the reliance on the figures given by the revenue authorities by the Committee, we would observe that no wrong as such was committed in doing so because the Revenue Department is the appropriate department to give the figures. If there was anything to doubt these figures, the representative of the primary societies in the Committee ought to have raised this point, which has not been done, which is apparent, inter alia, from the fact that the findings of the Committee are unanimous. The only reservation which the aforesaid representative has regarding the report as submitted to this Court is placing of reliance on Appendices VII to XII, to which aspect we shall advert later, as these appendices are not connected with the matter which we are presently examining but primarily related to question of sub-leases of the primary societies. Of course, the figures relate to 1992-93 whereas the figures which we regard as relevant are of 1990-91. We would also add that it may as well be that after 1990-91, more non-fishermen got engaged in fishing operation and it may also be that this has been done, inter alia, because of the pendency of these cases to bolster their stand.
40. We may now advert to the submissions advanced by Shri R. K Mohapatra in this connection. The learned Counsel submits that it is correct that at one point of time the non-fishermen did not desire to take up fishing as means of livelihood; but with the decline in the income from agriculture, necessity was first felt to supplement their family income and the non-fishermen in and around Chilka took to fishing for this purpose. In this connection, our attention is invited to what has been stated by Das Committee at pages 20-21 of the report wherein reference has been made to the study conducted by the Orissa Remote Sensing Application Centre (ORSAC) relating to socio-economic survey of villages in Chilka in 1988. That report classified the people involved in fishing profession in Chilka into three classes as belows :
"1. Fishermen by caste following fishing profession with negligible land holding for agriculture.
2. The second category comprises the people of other caste who are natives of Chilks periphery or are settled for ten years. They are engaged in fishing owing to low income from agriculture. Generally, they prefer to employ bonded labour for catching fish in the lake. '
3. The third group comprises the immigrant fishermen who come to Chilka for fishing during fishing season."
41. After noting the above, the Committee has observed as below at page 21 :--
"The said survey further reveals that the income of persons engaged in fishing has fairly increased, whereas persons following agriculture occupation without other sources of income are extremely poor. This happens due to multiplicity of causes, e.g., salinity of the soil, erratic nature of mansoon and lack of irrigation facilities. To quote the report in this regard : 'The income of people on Chilka periphery varies significantly from possession to profession. People following fishing profession top the list in this aspect, the people having occupation of cultivauon and other income stand in the 2nd place but the fraction of people who follow only agriculture come last in the list. P-72. Thus it is abundantly clear that persons, whether fishermen or non-fishermen, depending upon agriculture as the sole occupation remain poor, and as such they have to supplement their family income from fishing in the lake. It may be mentioned here that the average agriculture land holding for the fishermen population in Chilka is Ac. 0.50 as against Ac. 1.00 for the non-fishermen."
42. The aforesaid does bring home and tends to support the observation of the Committee that earlier policies of the Government had failed to recognise the reality of the situation in Chilka and its non-acceptance of any right in the non-fishermen was not a "prudent decision", as observed at page 23. Of course, the observation at page 17 that the non-fishermen have been catching fish in foreshore waters of Chilka "traditionally and customarily" may not he fully correct. But the main thrust of the finding that the non-fishermen were engaged in fishing, may be even illegally because of no licence having been given, has to be accepted. The mentioning at page 34 of the fact of settlement of 88 out of 114 Dian fisheries in favour of individual non-fishermen and 30 to non-fishermen villages by the Central Society deserves notice in this connection. Not only this, the growth of population among those non-fishermen who had very marginal land holding because of which they were facing problem of having sufficient earning to maintain livelihood must have led the non-fishermen to take more and more to fishing as the easily available means near at hand which must have resulted in "perpetual conflict with their fishermen counterparts", as stated in page 18 of the report.
43. The Committee, to substantiate its observation relating to "(p)erpetual clash of interests, conflicts and bad blood..... generated among the fishermen and non-fishermen population", has given some examples at page 18 of its report.
44. The aforesaid shows that the finding as given by the Committee at page (iii) by stating :
"The non-fishermen living in the neighbourhood villages of Chilka do also enjoy a traditional right to fishing to the lake, though on a limited scale."
may not be fully correct inasmuch as we do not read any traditional right of the non-fishermen in fishing. But right or no right, the non-fishermen did take up fishing in a big way and this reality cannot be ignored.
45. Issue No. 3 :
Whether the classification of fisheries by the policy at hand as capture and culture fisheries is unintelligible and arbitrary?
Shri Rath, who has led the argument on the side of the petitioners, submits that new words like "capture fishery" and "culture fishery" were coined in the policy which did not convey any specific meaning to the persons concerned, and so, the policy being unintelligible is unworkable. Not only this, concerned persons have been left guessing as to what would be the area of "viable culture fishery" of which paragraph (ii) of the policy speaks; so also what would be the extent of capture fishery. Thus, the policy has con-ferred unguided and arbitrary power by its para (v)(a) on the Collectors of Puri and Ganjam to determine the extent of acre of each source.
46. In support of his submission, the learned Counsel relies on the 7th point mentioned in the summary of the finding of the Das Committee itself as recorded at page (iv) of the report which reads as below :--
"7. In the absence of a thorough survey and appropriate demarcation of fishery sources in the lake, the distinction between the 'Capture' fishery and 'Culture' fishery as has been made in the Government lease policy of December, 1991, remains arbitrary and ambiguous and as such, it is likely to perpetuate and aggravate the existing conflicts between the fishermen and non-fishermen over the fishery sources."
47. The aforesaid finding has been arrived at by the Committee because of the six 'ifs' and 'buts' mentioned at pages 40-41 of the report to the statements which had been made before the Committee by the Minister, Revenue, and Minister, Fisheries, relating to relationship of capture and culture fisheries. We do not propose to quote these points.
48. As to the finding of the Committee that the distinction between capture fishery and culture fishery is unintelligible, arbitrary and ambiguous, Shri Das submits that it is really not so because old sources like Jano, Dian, Uthapani, Bahani and Prawn Khanda have been termed as capture fishery; and where prawn culture is being done by erecting embankments and other barriers have been described as culture sources in the policy. This is what finds place in para 12 of the additional affidavit filed by opposite party No. 1 on 15-1-1993. Our attention is also invited to the observation at page 36 of the report of the Das Committee about "advent of culture fishery in Chilka" which changed the situation dramatically. This 'advent' was in early 1980's, according to Shri Das, as mentioned in passing at page 63 of the report, whereas Shri Rath would say that it was in 1988. Even if it was in 1988, by December, 1991, when the present policy was made known, concerned people had come to know about "culture fishery" which expression was naturally used in contradiction to "capture fishery". We would not, therefore, agree that these expressions are unintelligible as such. But then, there is sufficient force in the submission that what has been stated in the policy is rather vague and arbitrary because what has been stated in para (i) that the size of capture fishery, would in no case exceed Ac. 1,000.00. This does not lead us anywhere inasmuch as if the size does not exceed Ac. 1,000.00. Question is what would be the real size ? Would it be 100 acres or even less or 500 acres ? To this also, Shri Das has sought to give some answer by stating that whatever be the size, the annual lease value for each source is constant for a particular year, to clarify which the following examples were noted in para 1 of the note submitted on 12-11-1993:--
Galia Jano (Krushna-prasad Tahasil) Ac. 462.04 Rs. 3260/-
Bali Gotha Jano -do-
Ac. 151.18 Rs. 3260/-
Bahar Janheipur Nali Jano Ac. 4.927 Rs. 3250/-
Siala Chatree Jano Ac. 513.17 Rs. 3260/-
Podakhia Jano Ac. 623.28 Rs. 3260/-
Chutia Nala Jano Ac. 21.245 Rs. 3260/-
49. The above takes the wind out of the sail to some extent. The crux and cream of the case, however, relates to culture fishery. Let us know, what the State has to say about this. As to this, we may refer to the Memorandum filed by the opposite parties on 16-2-1993 in which list of culture sources has been mentioned in so far as Puri district is concerned (which is the main district). This Memorandum shows that in Puri district there are 334 (324 ?) culture sources, the details of which giving the name of the village, Khatta No., plot No., area, etc. find place in An-nexures B to H of that Memorandum.
50. Despite the aforesaid being the factual position, Shri Rath refers us to the additional counter-affidavit filed as late as 15-1-1993 in which nothing has been mentioned about the area of culture fishery in the policy except saying that a 'viable' source shall be given, which itself shows that the determination of area has been left to the unguided discretion of the Collector, because in para (iii) of the policy it has been stated that the rest of culture sources would be suitably divided into" "convenient sizes" by the Collector. In the aforesaid affidavit, an explanation has been given in para 13 as to why the aforesaid came to be mentioned by stating, inter alia, that no limit has been fixed "because prawn culture can be done even in one or 1/2 acre plots". Of course, prior to that it has been stated in para 13 that detailed land, schedule of the sources, such as khata, plot, area and boundary had been fixed for each source by the Revenue Field Officers which had been approved by the Collector in pursuance of para V(a) of the aforesaid policy. That this is so would appear from the aforesaid annexures. But then, these detailed studies came to be made after the policy was announced which would be apparent from the statements made in para 13 that the said came to be done "in pursuance of para-V(a) of the Government order dated 31-12-1991". So, we may say that the horse was put after the cart, whereas it has to be before the cart.
51. ISSUE No. 4:
Has the policy sacrificed the traditional right of fishermen in favour of the non-fishermen ?
This is the real grievance of the petitioners and Shri Rath has gone to the extent of stating in his written submission as well as in the address to the Court that the policy has sounded the death-knell to the fishermen whose number is in the neighbourhood of one lakh and it is on this ground that the policy is being assailed as unreasonable inasmuch as it would very adversely affect the livelihood of about one lakh of persons and would trample social justice, which requires protection of the downtrodden, under the feet, Shri Rath would, therefore, submit that we should declare the policy as violative of constitutional obligation, and so, unreasonable.
52. Shri Mohapatra joins issue and submits that the petitioners' counsel have looked at the policy with coloured glasses. He would say that the vision is myopic. This stand has been taken because Shri Mohapatra states that livelihood of non-fishermen as well is equally involved and their number was also in the neighbourhood of one lakh (if not more) by the time the present policy came to be formulated. It is because of this that Shri Mohapatra in his written note has implored us not to be swayed away by caste considerations or by labels like fishermen and non-fishermen by taking fishermen alone as downtrodden. Learned Counsel urges that Chilka sources have to be divided in a way which would be "fair, equitable and amicable", apart from taking rare of illegal encroachment and prevention of mafia raj. This is said to be necessary to prevent ba'd blood and bitterness among the people in the neighbourhood so that all can live peacefully.
53. As a writ court, we owe an obligation to the society to do whatever is legally permissible in out part to see that asocial order is secured in which justice -- social, economic and political -- prevails. This is the wish of Article 38 of the Constitution, which principle is said to be fundamental in the governance of the country by Article 37, which casts a duty on the State to apply this principle. Judiciary is an organ of the State and it also, therefore, owes a duty to see that the principle embodied in Article 38 gets rooted and flowered in the society.
54. Because of what has been stated by us while discussing Issues Nos. 1 and 2, we entertain no doubt in our mind that non-fishermen also have to be given some right of fishing in Chilka, no matter even if they had no such right by tradition and custom. Shri Mohapatra is right that caste barriers got broken under the impact of hunger and the people of upper class (to which the non-fishermen belong), who abhorred fishing taking it to be an occupation of lower caste, took recourse to it to quench the fire of hunger, which knows no bounds, and under the impact of which a man of higher class would take up a profession traditionally taken to belong to tower class. It may be that the figure of 71,000 and odd given in the report to which we have referred earlier relating to non-fishermen engaged in fishing operation in Chilka is not fully credible; but then, from the materials on record we do accept that a very large number of non-fishermen in and around Chilka have taken to fishing, may be even illegally. A stage has, therefore, come when a legal covering has to be given to prevent bad blood, to take care of acute law and other situation and to ward off, if possible, mafia raj.
55. We may deal in passing with the submission of Shri Ratho that the figure of 71,244 given at page 36 of the report as non-fishermen "engaged in fishing operation" would not really mean that they are engaged in fishing as such, but may cover people engaged in trading as well, as non-fishermen used to do trade earlier. The language used in the report would not permit us to accept this submission because what has been stated in this regard is about the total number of non-fishermen "engaged in fishing". Indeed, that was the question framed by the Court inasmuch as by question No. 3, we had wanted to tell the Committee about the number of non-fishermen in the neighbouring villages who have taken up fishing as their profession.
56. We would, therefore, say that it would not be correct to contend that the policy has sacrificed the traditional right of the fishermen in favour of non-fishermen, more so, when it is noted that the policy contemplates that all the capture fisheries would be leased out to the Central Society which would sublease it to Primary Societies. Not only this, each primary society has been assured a "viable culture fishery". The non-fishermen get the rest of culture sources. The number of Primary Societies being 60 (as given in the note of the learned Government Advocate filed on 16-11-1993) and the number of culture fisheries being 334 (324 ?) there would be absolutely no difficulty in giving one viable culture fishery to each of the Primary Societies. This apart, from the list of culture sources proposed to be settled with Primary Societies (which form part of the Memo filed by the learned Government Advocate on 12-11-1993), we find that the proposed area varies between Ac. 110.74 to Ac. 435.00. So, the proposed area is big enough to feed many mouths and to spare some also.
57. ISSUE No. 5:
The extent of culturing of prawn in Chilka and its effect on eco system.
Chilka is getting choked. This is not disputed by any of the parties. Choking is said to be the result of culturing of prawn which has of late taken a big dimension. We have, therefore, first to know whether this increasing use of prawn culturing is a fact; and,if so, how has it affected eco system and if the same has caused adverse effect on eco, what should be done to take care of the future ?
58. Before we advert to the aforesaid life-saving questions, which are of moment not only for the people in the neighbourhood of Chilka but in a way for the entire populace of the State, we may only say that the right to live conferred by Article 21 of the Constitution includes the right of enjoyment of pollution free atmosphere and of late the apex Court has shown so much of concern with pollution that from 'pedestrian' case of Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622, to the latest decision in M. C. Mehta v. Union of India, (1992) 3 SCC 256, it has been passing orders even for closure of industries causing pollution and directing for taking over steps necessary to take care of pollution. We do not propose to burden this judgment with the various pronouncements of the apex Court on this aspect as the leading decisions on this aspect have been noted at pages 36-39 of the "Right to Life and Liberty under the Constitution" by B. L. Hansaria published by M/s. N. M. Tripathi of Bombay.
59. Das Committee was specifically asked to record its views on this aspect of the matter and the Committee, while dealing with this, has opined at page 46 by saying that this is "one of the most ticklish problems as there are both natural and human interventions on the eco-system of the lake". The Committee after having gone through the various aspects involved and by applying its mind to various facets relating to this question recorded its finding at page (iv) by stating as below :--
"The massive adoption of extensive and intensive culture fishery for prawn culture is positively harmful to the lake environment and will lead to a massive degradation of the eco-system of Chilka, although the extent of environmental hazards and damage in case of the former is relatively less than in the latter case provided extensive culture fishery is confined only to the fringe areas of Dian and Uthapani in the lake by pen culture."
60. In this context, it would be useful to note what it has stated on this important facet of the case at pages 58-59 also, which is as belows :--
"1. Large scale development of culture fishery on the fringe areas and inside Chilka lake will positively damage the eco-system.
2. Between the two, intensive culture fishery is more harmful and hazardous to environment than extensive culture fishery.
3. The large scale corporate prawn culture in the lake should be discouraged as it would cause more dammage to the eco-system than small-scale fishery sources.
4. In the management of lake fishery sources, the interest of the local fishermen and non-fishermen living in the neighbourhood villages should be safeguarded.
5. Environment Impact Assessment should be made by a tem of experts and scientists in order to examine and assess the impact of extensive culture fishery in Chilka lake on its eco-system, bio-diversity and environment.
6. Environment Monitoring Programme should be a regular feature of the lake eco-system.
7. A cost-benefit matrix in respect of culture fishery in the lake involving the elements of private cost and social cost and elements of private benefits and social benefits be prepared in order to arrive at the economic viability of such fishery sources.
8. Last but not least, it remains the fundamental duty of both Government and citizens to conserve and improve the ecosystem."
61. We now propose to note as to why is it that Chilka produces prawn and why prawn culturing causes detriment to environment and eco system. This we would do very broadly because the detailed discussion on this subject in the report from pages 46 to 59.
62. Let us first see as to why Chilka produces tasty fish which is in demand throughout the world. This is because of the unique feature of Chilka -- the same being that salt water of the sea to which Chilka adjoins predominates the lake during summer, whereas during rainy season, sweet water displaces the salt water and flows into the sea. The fishes of the lake swim to the sea to lay eggs and the juveniles return to lake to grow. Thus the fishes of Chilka, being the offsprings of salt and sweet water, possess a peculiar and distinct taste which is favoured not only in the State but in distant parts of the country and, what is more, in prosperous countries also like Japan and America.
63. Prawn is one such tasty fish and among the prawn also it is "Tiger prawn" which is in demand throughout the world and which brings dollar, which has given rise to "prawn-dollar" culture. It may not, however, be understood that prawn can be grown only by culturing, because it can be captured through 'Khandas' (p. 12 of the report) as well. Before the advent of culturing, among the traditional methods of fishing also, "prawn fishing" was in vogue and there were 69 such grounds, as mentioned at page 33 of Prof. Das's above study. By the traditional method, prawns were caught by bamboo traps which were of two types - - Dhaudi and Boja (p. 34 of the above study). But then, these prawns have soft skin and they decay early, and so, they are not in demand by the exporters, who prefer "thick and hard" prawns, as they resist natural process of decay (see p. 23 of note dated 3-11-1993 filed by Shri B. B. Ratho).
64. The cause of prawn culturing causing damage to the eco system is that it involves changing of water periodically in the pond and the polluted water is to be drained out into the lake or in the vicinity. This adversely affects the ecological balance. A reference to page 55 of the report shows that this damage is caused more by what has been termed as intensive method of culturing, as distinguished from extensive. As to why intensive method is more harmful has been dealt at pages 48-49. To put shortly, this method requires "10 percent of water to be drained out every day, which contains excess of prawn feed, unutilised growth-inducing additives, dead prawns, their sloughings and faecal matters and dead plantoms" (p. 48). But then, recourse is being taken more and more to this method, because by this method prawn output is almost double or even more than that of traditional method of culture inasmuch as the latter method yields about 400 kgs, per acre and the former 1000-1100 kgs. (p. 49).
65. Apart from intensive method of culturing, there are three other such methods :--(1) traditional extensive, (2) semi-intensive, and (3) supra-intensive or ultra-intensive. In the report, the features and requirements of all these methods have also been noted at pages 48 and 49. It is not necessary to narrate the same. For our purpose, it is enough to state that of all the four methods, traditional extensive method is the least harmful to the eco system.
66. The aforesaid does bring out a grim picture; indeed, too grim as opined by the Committee; and so, while expressing our own views on the policy contained in Annexure 9, we would take due note of the "environmental cost" and we propose to give some directions to sec how this cost, which is a part of social cost, can be minimised. This would be necessary to see that the large revenue being yielded by large scale prawn culturing in Chilka, which is one of the motivating force of the policy, does not take away the right of the persons in and around Chilka to live in an unpolluted atmosphere, as prawn-dollars cannot be allowed to play havoc with human lives, as petro-dollars too cannot.
67. This is not all. The Das Committee in its report at page 68 has mentioned that "displacement cost" and "user cost" also. As to the first, it has been stated that it refers to the cost imposed on the traditional fishermen on account of conversion of their erstwhile traditional fishery sources to culture sources. This is borne out by the fact that though earlier traditional sources (now termed mainly as "capture fisheries") occupied 75 per cent of the total fishery area, the ratio between capture fisheries and culture fisheries presently is 60 : 40, as noted at page 41 of the report, because of conversion of traditional fisheries to culture sources, a note relating to which finds place at Appendix IV. According to the Committee, this means that "the Government now proposes to take away a large chunk of capture sources and get it converted to culture sources". Though the report also contains a statement that there is a justification for the reduction of the capture sources, whose number earlier was 203 to 119 now -- the same being drying up of 40 per cent of Janas, that, however, is a poor con-solation to the fishermen. The second cost is the value of future resource benefits forgone, because they have been reduced by current use. The Committee had, therefore, concluded at page 48 by saying that "Chilka today provides a grim picture of all the evils and vices of prawn-dollar, comparable to those of the petro-dollar in the international sphere".
68. ISSUE No. 6:
General effect of prawn culture on both fishermen and non-fishermen advent of mafia raj.
This State of ours was not known to be a playground of mafias earlier. It has, therefore, come as a surprise, indeed a shock, to us, and should be to many, that the "hot money" earned through prawn trade has brought the mafias to this State also; so much so that according to the report of the Committee, they control production and marketing of prawn. As to what extent their activities have percolated can best be described in the language used by the Committee at pages 63-64 of its report, which is as below :--
"The mafias are playing havoc today in the lake as they have become the real monarch and determine the fate of the poor fishermen. It is learnt that they are armed with deadly weapons like guns, revolvers, A.K. 47 and bombs. They symbolise encroachments and all acts of illegalities in the lake area, terrorise the local people and want to have a grip over the fishery sources."
69. It is because of the above that the Committee has observed that it is no exaggeration to say that mafias in Chilka constitute a 'Positive Evil' today. For this reason, almost all the representatives of the fishermen and non-fishermen communities living in the neighbourhood of Chilka appealed to the Committee for freeing them from the clutches of mafias; otherwise life remains percevious (sic) to them.
70. The mafias being there, who ought not to have been, the policy makers have to see that they do not rule the roost. It would help to cut the wings of the mafias if we were to know how did they at all start dominating the scene. The Committee was asked by Court's question No. 9 to enlighten as to who had engaged the mafias. This aspect has been dealt at pages 63 and 64 of the report and the Committee states that induction of the mafias to the lake dates back to early eighties when culture fishery started and that they have been inducted by third party-sub-lessees or by encroachers. As to the sub-lessees, it has been stated that they had taken these leases illegally either verbally or in writing from the regular lease-holders of certain fishery sources for prawn culture by paying exorbitant lease amount and they are, by and large, absentee landlords who operates from Puri, Bhuba-neswar and Cuttack. What is revealing is that many of these absentee landlords are "important politicians or their relations, bureaucrats of standing and moneyed people, who apparently have a lobby with the Government". (p. 63). What can be more revealing (if it was required), painful and distressing?
71. Does Orissa also, therefore, not prove the correctness, of the saying that in the country today there is criminalisation of politics and politicisation of crimes? Does the State owe no obligation to do away with these most dastardly and injurious activities on the part of "important politicians or their relations" and "bureaucrats of standing"? We express our gratefulness to the Committee for bringing to light the heinous activities of these persons. May we say that the Committee consisted, inter alia, of the Director of Fisheries, and the two Special Invitees were the Joint Director of Fisheries-cum-Auth-orised Officer of the Central Society and the Collector of Puri. We have, therefore, no reason not to accept the aforesaid unanimous finding of the Committee as correct. We do not think, given the will, it would not be possible for the State to check this menace before the mafias, through the concerned politicians (or their relations) and bureaucrats, spread their net far and wide and make a mockery of the rule of law."
72. In so far as the causes of induction of the mafias are concerned, one is sub-letting by sub-lessees. In Appendices VII and VIII of the report, the details of sub-letting in favour of third parties by the sub-lease-hofders, namely, Primary Societies, have been given. Shri Ratho in particular has been very critical of this finding of the Committee, based as the same is principally on Appendices VII and VIII. The learned counsel has gone to the extent of saying that the Committee went out of its way in placing reliance on the same, as these appendices along with Appendices IX to XII had not been placed before the Committee in time, because of which an objection was taken by Shri B. Misra, who was a representative of the fishermen in the Committee, as would appear from his letter dated 12-8-1993 addressed to the Chairman of the Committee, a copy of which is Annexure A to the written note filed by Shri Ratho on 3-11-1993, in which it has been stated that the aforesaid appendices were made available to the Chairman sometime after 8th August, and so, in all fairness, these documents should have been placed before the Committee before those were made a part of the report. This letter was replied the next day by the Chairman, vide Annexure B to the aforesaid note, by stating that though it is correct that these appendices were not ready by 8th August, they were made available to Shri Misra on 11th August, because of which he had opportunity to go through them before the Committee met on 12th August, when the report was finally accepted.
73. Shri Ratho has further criticised the Committee for placing reliance on these appendices without taking any steps to verify the correctness of the same. Shri Rath has advanced another argument to disbelieve what finds place in these appendices by saying that there is nothing on record to show if any case has been filed against any Primary Society for letting the sources sub-leased out to them, the same being not permissible in law. By referring to Appendix VII, which contains the details of the sources sublet to third parties by the fishermen, Shri Rath states that a perusal of the ten instances given therein would show that some of them were by some members of the Primary Societies, which was not permissible. In some cases, reference has been made to the leases given to the Primary Societies even for 1991-92, for which period no settlement had even been made, according to Shri Rath, in favour of the Primary Societies. As to some instances, it has been submitted that the same lack particulars inasmuch as they do not mention to whom the subletting was.
74. As to the aforesaid contentions, we would observe that though there is some force in the same, we would not disagree with the finding, because even the name of the society, the name of the fishery, the extent of the area, the name of the person to whom it was sublet find place in the two appendices. As to no legal action having been taken against any Primary Society for subletting, let it be said that this itself cannot belie the fact of subletting inasmuch as it is known that at times illegal actions are committed relating to which no action is taken, because of which it cannot be said that the illegal action had not taken place. May we also say in this regard that even Shri Misra (the representative of fishermen in the Committed had agreed, inter alia, with the summary of the main findings given by the Committee, as incorporated at pages (iii) and (iv), one of which, namely, No. (iv), relates to subletting to third parties, which led to the induction of mafias, for which the Primary Societies also have been regarded as responsible.
75. We may not pursue this aspect of the matter further because what is of real importance for us is not as to why the mafias came, but the glaring fact that they are there; and all concerned have to see that they do not remain and operate there and take the cream of culture sources, which would be detrimental to the interest of both the fishermen and non-fishermen.
76. ISSUE No. 7:
Is the upset price fixed by the policy unreasonable?
The petitioners have serious grievance about the fixing of upset price of Rs. 800/- per acre per annum" in so far as the culture fishery source is concerned. The grievance owes its origin to the fact that in the immediately preceding policy, which is of 1988, lease value for the first three years was required to be fixed by adding 10% to the lease value of the last year, i.e., 1986-87, as stated in paragraph 16 of O.J.C. No. 1613/92's Annexure 7 dated 27-7-1988. In 1986-87, the lease value fixed was Rs. 9,000/- for three years and for 100 acres, as stated by Shri Rath. The upset price fixed in the present policy would require payment of a sum of about Rs. 2.4 lakhs for the entire period of three years, if the area of the viable culture fishery source be 100 acres. So, in place of about Rs. 10,000/- for the immediately preceding period, the fishermen would be required to pay Rs. 2.1 lakhs now.
77. It is because of the aforesaid that the Das Committee was specifically asked by Court's question (viii) to acquaint us as to what price did prawn fetch at the source in December, 1990, 1991 and 1992 and what was the market price in these months.
78. This aspect has been dealt by the Committee at pages 59-62. In Table I at page 60, the prices of prawn has both at source and in the market during 1988-92 have been shown as below :--
Year Price at the source Price in the market 1988 180 250 1990 230 300 1991 250 320 1992 280 350
79. Along with what has been stated by the Committee under point No. (viii) of the reference, we should also note its finding under point No. (xv), which relates to the question of average expenditure incurred for prawn culturing in one acre of area and the average yield per year. This has been dealt with at pages 67 and 68, which shows that the total expenditure per acre of "extensive tide-fed pond"is Rs. 28,960.00. The yield of prawn per acre of pond culture has been estimated at 400 Kgs. per annum, whose market value would be Rs. 80,000/- (calculated at the rate of Rs. 200/- per Kg., which is very reasonable as the market price varied from Rs. 250/~ to Rs. 350/-, as would appear from the figures given in the Table above). The net income from one acre of prawn, therefore, comes to Rs. 51,000/-(Rs. 80,000.00 -- Rs. 29,000.00).
80. Relying on these figures given by the Committee, the learned Government Advocate submits that if the policy requires payment of Rs. 800/- per acre per annum as upset price, the same is absolutely reasonable. As the monetary value of the total yield per annum has been assessed at Rs. 80,000/- we do not think if the upset price as fixed can be characterised as unreasonable. Of course, compared to what was being paid earlier, the rise is phenomenal and percentwise too high, but reality of the situation has to be acknowledged. If the materials available to us do not show that there is any unreasonableness in fixation of the upset price, we cannot interfere with the same on our own. Even so, we think it is a matter which the Government may reconsider and fix the upset price at such figure as it would think to be in connonance with the present market value keeping in view what was the immediate past. After all, an action has not only to be reasoanble, it must also appear to be reasonable; like it being not enough that justice is done, it must seem to have been done.
81. ISSUE No. 8:
Is the power of search given to the authorities named in Annexure 9 against the provisions of the Orissa Marine Fishing Regulation, 1981?
ISSUE No. 9 :
Could the policy have authorised the named officers to impose penalty; Could the named officers delegate their powers?
The aforesaid questions arose because of what has been stated in paras 3 and 9 of the policy. In the Memo which the learned Government Advocate filed on 12-11-1993, it was, however, stated at page 3 under para 4 that the "Government may not insist upon continuance of Clauses 3 to 9 in the 1991 lease principles relating to search, seizure, penalty, etc.". This wisdom has been shown because of the arguments advanced and because of the apparent impermissibility of power of search, penalty, etc. being conferred on the named functionaries in the teeth of the provisions contained in the Orissa Marine Fishing Regulation, 1981, and that too by administrative order. We appreciate the retracing.
82. ISSUE No. 10:
Is the policy contained in Annexure 9 capable of achieving the desideratum mentioned in the opening part of the judgment by prunning, trimming and dressing it to the extent legally permissible?
The aforesaid journey through the labyrinth of history, which is as old as Chilka itself, has sufficiently informed us to answer this vital question. Learned counsel for the petitioners have prayed that as the 1991 policy has been almost foisted on the parties without having undertaken any sort of exercise which used to be undertaken earlier by forming various committees before making up the mind, to which we have adverted, the requirement of law is to quash the policy.
83. The factual part of the submission is indisputable as the present policy is the result of some exercise in the Secretariat only with the aid of the Collector, Puri. In our order dated 18-2-1993, by which we had appointed the fact-finding committee, we had noted this aspect of the matter and had stated in paragraph 5 that the policy is "the brain-child of Collector, Puri", which came to be adopted after various notings in the file of the Secretariat without any public participation. In that paragraph we had also observed that the springboard of the changed policy was the view expressed by the Collector to Minister, Finance as Chairman of the Cabinet Sub-Committee set up for Additional Resources Mobilisation, who had discussed with various persons as how to augment revenue from prawn culture, that there was great scope for such augmentation if prawn culture could be rationalised, the result of which would be that Chika would contribute to the State exchequer, instead of a paltry sum of Rupees 20 lakhs, a sum of about Rs. 4 crores. This "enamoured everybody in the Secretariat and the exercise started, which resulted in the present policy", as observed earlier.
84. We are constrained to say that the Government was ill-advised to come out with the present policy only with the aim of increase in the revenue forgetting so many other relevant aspects. Had we not set up a fact-finding committee and the report submitted by it would not have brought to our notice the various issues, aspects and facets of the matter at hand, we would have had no hesitation in striking down the policy on the ground of it being the result of non-application of mind to some very pertinent facets of the life sustaining activities. But, having had a report, and a good report at that, which has thrown light on the relevant aspects, it would be a narrow approach to a very vital question to strike down the policy on the aforesaid short ground urged by the learned counsel. We are, therefore, refraining from doing so, as it would have kept the pot melting and would have perpetuated the internecine struggle to the benefit of nobody; indeed, to the disadvantage of all concerned.
85. This takes us to the second contention advanced that the policy as framed is unreasonable and adversely affects public interest. May we say that these two grounds alone are available to us to strike down a policy like the one at hand, while exercising our power of judicial review as a writ Court.
86. According to Shri Rath, the policy is arbitrary because of its classification of fisheries as 'captive' and 'culture'; and any action which is arbitrary is unreasonable because of what has been stated in para 56 of Maneka Gandhi, AIR 1978 SC 597. Another ground urged qua unreasonableness is that it is contrary to Directive Principles inasmuch as it has destroyed the livelihood of fishermen and has, therefore, played absolute foul with Article 38 of the Constitution; and in view of what has been stated in Kasturilal (AIR 1980 SC 1992) (supra), which was followed by this Court in Nuanai Co-operative case (1992 (74) Cut LT 36) (supra), the policy has to be regarded as unreasonable. Still another arbitrariness alleged is the quantum of upset price fixed for viable culture fishery source. We are reminded by Shri Rath that the earning of revenue cannot advance public interest, if the same were to be at great "social cost", which it would be, according to the learned counsel, in view of what has been mentioned by the Committee at page 68 regarding "environmental cost", "displacement cost" and "user cost".
87. Let us examine these submissions. In so far as the first submission relating to classification of the two fisheries as 'capture' and 'culture' is concerned, Shri Rath relies on the finding of the Das Committee itself which in its point No. 7 of the summary of the findings has stated at page (iv) that the aforesaid distinction remains "arbitary and ambiguous". We would, however, differ form this' finding of the Committee having noted under Issue No. 3 that the fishing community in and around Chilka had become aware of the conception of capture fishery by eighties, may be late eighties. Then, the document made available to us by the learned Government Advocate does show that 'capture' and 'culture' fisheries have since been specified by giving khata no., plot no., area and boundary, to which also we have already adverted. As such, we do not really find at present any ambiguity or arbitrariness in the division of fishery sources as 'capture' and 'culture'. Of course, the specification by khata no., etc. ought to have preceded the formulation arid publication of the policy, as already observed, instead of following it. As to this manner of doing things, we have stated that the horse had been put behind the cart whereas it should have been before the cart.
88. The most important and persistent attack on the touchstone of unreasonableness is the serious adverse effect on the livelihood of fishermen who are about one lakh in number, according to the petitioners. This submission has been advanced because under the policy, of the 324 culture sources, fisher men would get only 49 as that is the number of primary societies given at page 65 of the report, which number is 60, as per the State's Memo dated 16-11-1993. So, 275 (or 264) sources would be left for non-fishermen. Not only this, the fisheries in the landmass (which is measured by the difference between the highest water mark and the lowest water mark in a year) are to be given to the non-fishermen in the first instance. The petitioners have a grievance that the area of the landmass has been purposely inflated and it is because of this that one of the points we wanted the Committee to go into about the actual area of landmass. This aspect has been dealt at pages 44-46 of the report and it states that the area on landmass may be taken to be Ac. 15,100.00. Though in the written note submitted by Shri Ratho, the learned counsel is critical about this finding of the Committee, we do not propose to pursue the same because the area of the landmass is not very material for our purpose.
89. Shri Mohapatra as well as the learned Government Advocate counters the aforesaid submission by stating that the policy duty takes care of the interest of fishermen inasmuch as all capt. fisheries have been left to b'e leased out to the Central Society with the power to sub-lease the same to the Primary Societies. From page 41 of the report, we find that the number of capture fisheries is about 119. So, if there be 49 (or for that matter 60) Primary Societies, each would get 3 or 2 of such sources. These sources are spread over an area of Ac. 27,019.35. No doubt, the percentage of capture fisheries to the total sources has declined from 75 to 60 (see page 41 of the report); yet, if about 27,000 acres be available for this purpose, the same should earn sufficient revenue to take care of the livelihood of the members of the Primary Societies.
90. The above is not all. The policy visualises giving of one viable culture source to each of the Primary Societies. Of course, the extent of the area of such source has been left to be determined by the Collectors of Puri and Ganjam, which raised apprehension in the mind of the Primary Societies about the extent which would be leased to them, which apprehension, according to us, could have been well taken care of before the policy was made known to the people by doing the exercise which was done after the policy saw the light of the day. The learned Government Advocate in his note of 12-11-1993 has enclosed a statement showing what was the area of culture source proposed to be settled with the Primary Societies as per the present policy. This statement contains the names of 11 Primary Societies and the area proposed to be settled varies from Ac. 110.74 to Ac. 435.00. If the production of prawn per acre culture source is taken note of (which is about 400 Kgs. per annum as stated at page 68 of the report), it would appear that a culture source of the aforesaid size should yield sufficient income to enable the fishermen to earn their livelihood.
91. We do not, therefore, think that the policy really has sounded a death-knell to the fishermen as is the contention of Shri Ratho. We would rather think that the policy would permit the fishermen to earn at least as much they were earning before, if not more.
92. The third ground of unreasonableness is the very high upset price fixed for culture sources by the policy. This aspect has been dealt by us under Issue No. 7 and what has been stated therein would show that this criticism cannot be accepted; even so, we propose to say something about it later to see if it could be reduced to some extent.
93. The final facet of unreasonableness relates to the "social cost" of which "environmental cost" is the main component. We do agree with the learned counsel on this aspect of the matter almost whole-hog. We have no reservation to say that the revenue yielding aspect of the policy almost blinded the vision of the policy-makers in not taking note of the great harm to the ecology to be caused by massive adoption of extensive and intensive prawn culture. "Prawn-dollar" like "petro-dollar" became so much dear that everything else was forgotten. This should not have happened. Revenue cannot be earned by sacrificing larger interest of the society. A balance has to be struck between gain to exchequer and loss to society. The Committee has, therefore, rightly observed at page 68 that "(p)rivate cost and benefit are to be weighed against social cost and social benefit in order to arrive at a correct economic estimation of prawn culture projects". The fact that the present policy has started earning to the State exchequer about Rs. 90 crores of foreign exchange (vide calculation at page 61 of the report) is no ground to forget two lakhs of inhabitants of the State to protect whom is also an obligation of the State.
94. Having dealt with the objection to the policy raised by the learned counsel for the petitioners, we have to express our views relating to the justifiability of allowing lease of the fisheries to the non-fishermen. This has been objected to both by Shri Rath and Shri Ratho on the ground that the non-fishermen having had no right, traditional or customary, to get such lease, conferment of the right to get lease for the first time by the present policy was an unwarranted act on the part of the Government; more so, as it would very adversely affect the fishermen. In so far as the last submission is concerned, we have already expressed our views regarding the same. As to the first part of the contention, we would first say that though we have held, while expressing our views on Issue No. 2 that non-fishermen did not have a traditional right of fishing in the lake, we cannot also shut our eyes to the reality of the situation, which aspect has been highlighted by the Committee in its report, to which we have already referred. When a thing becomes real, its existence should be accepted, shutting of eyes to the reality does not enable finding out of solutions which would be lasting and acceptable. One can fight with shadows but not with realities.
95. From what has been noted above by us, we are satisfied that non-fishermen had to engage and did engage themselves in fishing in and around Chilka. Whether this was a legal act has not much of importance, because if a thing gets rooted and cannot be got uprooted without causing damage to the structure of the society, it would be good for all concerned to accept it and then to tailor the solutions and remedies accordingly. We are, therefore, of the view that granting of right to the non-fishermen as contained in the policy was a desirable stand, as it takes care of the livelihood of the non-fishermen, which is also important as in the taking care of the livelihood of the fisherment, Prevention of Law and order situation and maintenance of peace and tranquillity in and around Chilka too demanded conferment of some legal right on the non-fishermen to fish in the lake. The mere fact that the non-fishermen do not belong to a caste which has not accepted fishing as aprofession cannot be a ground in the changed circumstances to treat them as outsiders for the purpose of conferring some right to fish in Chilka. We would think that the fishermen should also accept the reality and adopt the principle of "Live and let live". It would be good for all concerned including the fishermen themselves, as peace would then prevail, which would enable the fishermen themselves to engage in fishing with a free mind and would lead not only to peace in life but to better fishing and higher income for them.
96. Prunning, trimming and dressing of the Policy :
Despite what has been stated above about the reasonableness of conferment of the right on non-fishermen to obtain lease, the policy as embodied in Annexure 9 does need prunning, trimming and dressing to make it reasonable and subserve public interest, and we propose to do so to the extent legally permissible to us.
97. Prunning :
The prunning by way of some choping off which we would direct is to prohibit intensive and some of the co-related methods of prawn culture in Chilka, because of the great damage it has caused and is likely to cause to the eco-system. We are aware that intensive method of culturing leads to higher yield, almost double the yield by the other method of culture; but then, earning of revenue alone cannot be the aim of the Government as it has to protect and improve the environment as enjoined by Article 48A of the Constitution, not to speak of enforcing the other environmental laws. The short-fall in revenue, which would be of a few crores going by the figures given in the report of the Committee, would be more than made up by the benefits derived from free and unpolluted Chilka. The more important result would be that the mafia raj would get controlled, because mafias have appeared along with 'prawn-dollars', to use the terminology given by the Committee. If 'prawn-rupees' would be there, mafias may not be there; and even if they will be there despite this, the Government owes an obligation to see that they are dealt firmly and are not allowed to take away the cream. We do hope that the Government would not be found wanting in taking stern measures against the mafias. We have made this observation, because the report of the Committee says that "important politicians or their relations" and "bureaucrets of standing" are involved in sheltering the mafias.
98. The direction to the, State Government to prohibit intensive method of brawn culture has set in train the thinking whether we should not ask for prohibition of prawn culturing altogether, which, as per the report of the Committee, is being carried out by the four methods noted above. This thinking has become necessary because of the adverse effect of culturing on ecology, damage to which is caused even by traditional extensive culture, as already noted.
99. We have duly considered the aforesaid important aspect and have felt reticent to direct prohibition of prawn culturing altogether. This is for the reason that prawn culture had come to Chilka in the early eighties, and it is more than a decade that this has been going on. Historical facts and realities of the situation have to be borne in mind while dealing with live problems. Nobody, not even the Courts, can set the clock back; all that is permissible and would be acceptable is adjustment of the clock. It is because of this that we felt that we should allow "traditional extensive culture", and this alone of the four methods noted above, to continue. This approach of ours would amount to accepting a lesser evil, having felt that evil cannot be done away with altogether. The Committee at page 55 of its report has quoted the view of an internationally renowned acquaculturist of the Acquaculture Department of South East Asian Fisheries Development Centre based in Phillipines, which she had communicated to the President of Orissa Krushak Mahasangha on 22nd December, 1992, reading as below :--
"The lesser evil would be to utilise technology that does not stress the environment in terms or organic and nutrient loading chemical use, and water-power requirements. In contrast Chilka lake in Orissa still has to be developed. Therefore you stand a better chance of keeping pond development to the minimum, invoking the Ramsar Convention, and citing the social displacement and environmental degradation that are possible consequences."
"Lesser evil", of which the aforesaid letter speaks, is the extensive culture method, as would appear from what has been stated in the aforesaid page of the report immediately preceding the portion quoted above.
100. Having conceded that the traditional extensive culture method has to be permitted, we would, however, add a rider. The same is that it has to be confined only to the "fringe areas of Dian and Uthapani by pen culture", as is the view expressed by the Committee in summary No. 8 at page (iv) of the report. Not only this, appropriate steps shall have to be taken by the State Government to see that "Environment Impact Assessment" is made by a team of experts and scientists in order to examine and assess the impact of extensive culture fishery on the eco system, bio-diversity and environment, as is the recommendation of the Committee under point No. 5 at page 59. This apart, "Environment Monitoring Programme" shall have to be a regular feature of the lake's eco system. All these would be for the purpose of monitoring and for taking such steps as may be deemed necessary in the light of the assessment made, to preserve and protect the eco system.
101. May we state that the aforesaid directions have been given by us keeping in view Article 21 which would require maintenance of pollution-free environment, enforcement of which is our constitutional duty. Advance of public interest is another reason for our aforesaid directions which in the present case consists of seeing to the withering away of the mafia raj.
102. We would also make one observation here. The same is, to see that the sources which are allotted are operated by those only who are legally entitled to do so, any illegal transfer by way of sub-letting or any other mode would have to be appropriately dealt with, and firmly; otherwise outsiders would make their appearance and with them the mafias, who have to be kept away at all costs, which alone will permit implementation of the policy in its true perspective.
The Government having already reduced the number of capture fisheries by diverting a good number of them to culture fisheries, the result of which has been that the ratio has declined from 75 : 25 to 60 : 40, a strong case exists that their present shape after trimming is maintained, because capture fisheries have been kept reserved for the Central Society to be sub-leased to the Primary Societies. Any further conversion would be injuries to the interest of the fishermen, which has to receive primery over that of non-fishermen, as after all, the fishermen have been earning their livelihood solely by fishing from time immemorial, whereas the non-fishermen have taken to fishing of late. So, we direct to maintain the present ratio.
104. The second direction is to see that the area of the culture fishery to be given to each of the Primary Societies is not less than Ac. 100.00 or so. We are giving this direction because from the list of culture sources proposed to be leased to such societies, which documents form part of the memo filed by the learned Government Advocate on 4-11-1993, we find that the minimum area proposed is Ac. 110.74. The number of such Societies being 60, as stated in State's Memo of 16-11-1993, sufficient area of culture sources would be left for the non-fishermen (even if about Ac. 100.00 such source is given to each Primary Society), as the total area of fishery sairats in Chilka is Ac. 47,317,91 (para 3 of State's Memo dated 12-11-1993); and area of all 119 capture sources (to be leased to the Central Society as per the policy) is Ac. 27,019.35 (para 1 of State's Memo dated 16-11-1993). So, even if about Ac. 6000.00 (Ac. 100.00 X 60) of culture sources are leased to the Primary Societies, the total area to be leased/sub-leased to them would come to about Ac. 33,000.00, leaving about Ac. 14,000.00, i.e., 47,317.91 -- (27,019.35 + 6,000.00), of culture sources for non-fishermen, which would be enough to enable them to earn their livelihood from fishing in this largec, area. In so far as the landmass is concerned, it should be jointly shared, almost in equal proportion, by the two contending parties -- Primary Societies and non-fishermen.
105. May we add that this trimming exercise has been ordered to be done by us to see that the policy gets attuned to Article 21, which takes care of livelihood also. And to see to its command being fulfilled, law permits us to pass such orders and give such directions as are deemed appropriate, keeping in view the facts and circumstances of the case.
Coming to dressing, let the deeply felt wound by the fishermen because of the hike in the lease value be taken care of to which effect we have made an observation above. Though the up price fixed has not been regarded as unreasonable by us, the increase being pheno-mental, a case does exist, according to us, to nurse this wounded feeling of the fishermen by reducing the effect to such extent as deemed just and proper by the State. So, dressing is necessary to make the policy appear reasonable and thereby receive the full blessing of Article 14.
107. We are nearing the end of our journey, a journey which we think would take all, if travelled through the path we have indicated to the desideratum mentioned in the opening part of the judgment. It should see a bond of friendship and unity growing between the fishermen and non-fishermen living in and around Chilka, which has to be so, because they are neighbours and have to leave in peace and amity to help each other in earning livelihood. The prunning, trimming and dressing suggested by us should also take care of outside interference and withering away of the mafia raj gradually, given the will to do so. Chilka would then be restored to its pristine glory inviting different species of birds and tourists, apart from allowing about two lakhs of people inhabiting in the neighbourhood to earn their livelihood peacefully. We part with this hope and do think that this hope of ours would not be belied.
108. Before we conclude, we have to put on record our deep appreciation for the commendable work done by the Committee. Its report has been objective and it has thrown enough light on all the questions which we had desired it to study. The language used has been appropriate and quite expressive. We have liked the coining of a new word "prawn-dollar", taking the cue from "petro-dollar". The Committee has also taken care to see that the report reaches the hands of this Court in a very presentable form by getting it neatly typed by using the latest mechanical apparatus available in this regard on good stout paper and by getting it bound pleasantly.
109. In the result, the petitions stand disposed of by upholding the impugned policy subject to its being prunned, trimmed and dressed as directed, suggested and observed by us.
110. May peace and serenity prevail in Chilka, dear Chilka, dream-land Chilka. May it meet the need, hopes and aspirations of all -- the inhabitants in and around it; so also of those who stay with it during difficult days flying so far as from Siberia, not to speak of them who have been flocking from nearer places to bask in its placid and pollution-free water.
B.N. Dash, J.
111. I agree.