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Full Case Details
Shrimp (Prawn) Culture Industry is taking roots in India. Since long
the fishermen in India have been following the traditional rice/shrimp rotating aquaculture
system. Rice is grown during part of the year and shrimp and other fish species are cultured
during the rest of the year. However, during the last decade the traditional system which, apart
from producing rice, produced 140 kgs of shrimp per hectare of land began to give way to
more intensive methods of shrimp culture which could produce thousands of kilograms per
hectare. A large number of private companies and multinational corporations have started
investing in shrimp farms. In the last few years more than eighty thousand hectares of land
have been converted to shrimp farming. India’s marine export weighed in at 70,000 tonnes in
1993 and these exports are projected to reach 200 thousand tonnes by the year 2000. The
shrimp farming advocates regard aquaculture as potential saviour of developing countries
because it is a short-duration crop that provides a high investment return and enjoys an
expanding market. The said expectation is sought to be achieved by replacing the
environmentally benign traditional mode of culture by semi-intensive and intensive methods.
More and more areas are being brought under semi- intensive and intensive modes of shrimp
farming. The environmental impact of shrimp culture essentially depends on the mode of
culture adopted in the shrimp farming. Indeed, the new trend of more intensified shrimp
farming in certain parts of the country – without much control of feeds, seeds and other inputs
and water management practices – has brought to the fore a serious threat to the environment
and ecology which has been highlighted before us.
- This petition under Article 32 of the Constitution of India – in public interest – has been
filed by S. Jagannathan, Chairman, Gram Swaraj Movement, a voluntary organisation
working for the upliftment of the weaker sections of society. The petitioner has sought the
enforcement of Coastal Zone Regulation Notification dated 19-2-1991 issued by the
Government of India, stoppage of intensive and semi-intensive type of prawn farming in the
ecologically fragile coastal areas, prohibition from using the wastelands/wetlands for prawn
farming and the constitution of a National Coastal Management Authority to safeguard the
marine life and coastal areas. Various other prayers have been made in the writ petition. This
Court issued notice by the order dated 3-10-1994. On 12-12-1994, this Court passed the
following order:
Ministry of Environment and Forests, Government of India issued a Notification dated
19-2-1991, under clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules,
1986 wherein it was declared that the coastal stretches of seas, bays, estuaries, creeks, rivers
and backwater which are influenced by the tidal action (in the landward side) up to 500
metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and
the HTL are Coastal Regulation Zone. The Central Government has imposed various
restrictions in the said notification. Mr Mehta, learned advocate appearing for the petitioner,
states that despite the issue of the notification, unauthorised industries and other construction
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is being permitted by various States within the area which has been declared as Coastal
Regulation Zone. … Meanwhile we direct all the respondent-States not to permit the setting
up of any industry or the construction of any type on the area at least up to 500 metres from
the sea water at the maximum High Tide. The abovesaid area i.e. from the High Tide Level up
to 500 metres shall be kept free from all construction of any type. - The Union of India and States/Union Territories of Gujarat, Maharashtra, Orissa,
Kerala, Tamil Nadu, West Bengal, Goa, Pondicherry, Daman/Diu, Andaman/Nicobar and
Lakshadweep have filed replies to the writ petitions. This Court on 27-3-1995 passed the
following order:
This public interest petition is directed against the setting up of prawn farms on the
coastal areas of Andhra Pradesh, Tamil Nadu and other coastal States. It is alleged that the
coastal States are allowing big business houses to develop prawn farms on a large scale in the
ecologically fragile coastal areas of the States concerned in violation of the Environment
Protection Act, 1986 and the rules framed thereunder and various other provisions of law. It is
also alleged that establishment of prawn farms on rural cultivable lands is creating serious
environmental, social and economic problems for the rural people living along the coastal bed
specially in the east coast. … Meanwhile, we direct NEERI, Nagpur through its Director to
appoint an investigating team to visit the coastal areas of the States of Andhra Pradesh and
Tamil Nadu and give its report to this Court regarding the various farms which are being set
up in the said area.
In case the investigating team finds that the ecologically fragile area is being
environmentally degraded then it shall suggest the remedial measures in that respect. The
NEERI team shall keep in view the Notification dated 19-2-1991 of the Ministry of
Environment and Forests, Government of India, issued under the Environment Protection Act,
1986 and also the provisions of the Tamil Nadu Agriculture (Regulation) Act, 1995. The
NEERI shall submit its report before 30-4-1995. - Pursuant to the above-quoted order, the National Environmental Engineering Research
Institute, Nagpur (NEERI) submitted its report dated 25-4-1995 before this Court. This Court
further directed NEERI to send an expert team to the coastal areas in other States and file its
report within two months. The report was filed in this Court within the specified time. This
Court on 9-5-1995 passed the following order:
This matter be listed for final hearing on 4-8-1995. Meanwhile we direct that no part of
agricultural lands and salt farms be converted into commercial aquaculture farms hereinafter.
We further direct that no groundwater withdrawal, be allowed for aquaculture purposes to any
of the industries whether already existing or in the process of being set up. No further shrimp
farms or any aquaculture farms be permitted to be set up in the areas in dispute hereinafter.
We direct the respective State Governments (the Collector concerned or any other officer
appointed by the Government) to provide free access through aquaculture units to the sea
coast to the fishermen/tourists after hearing the parties concerned.
Mr Mehta has contended that due to these farms occupying most of the coastal areas it
has become difficult for the villagers to search for fresh water. The State Government may
examine this aspect and provide water by way of tankers wherever it is necessary.
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So far as the farmers in the State of Tamil Nadu are concerned they are all represented
through Mr Kapil Sibal and his team, we direct the State of A.P. to send a copy of the order of
this Court to all the aquaculture farms in the State of A.P. informing them that the matter shall
be taken up by this Court for final hearing on 4-8-1995. This may be done by the State of A.P.
by the end of June 1995.
We direct the Pondicherry Administration to send a copy of the order of this Court to all
the aquaculture farms in Pondicherry informing them that the matter shall be taken up by this
Court for final hearing on 4-8-1995. This may be done by the Pondicherry Administration by
the end of June 1995.
We further direct the Superintendent of Police and the Collector of the areas concerned to
see that the order of this Court specially the directions given are meticulously complied with
by all the farms.
Before finally hearing this matter, this Court passed the following order on 24-8-1995:
We are of the view that it would be in the interest of justice to have full representation
before us so far as individual aquafarms in various States/Union Territories are concerned.
We, therefore, adjourn the hearing to 17-10-1995. Meanwhile, we direct the coastal
States/Union Territory Governments through their learned counsel who are present in the
Court, to issue individual notices to all the aquafarms which are located in their respective
territories. It may be stated in the notices that the same are being issued under the direction of
this Court. It should also be specifically mentioned that if they want to be heard in these
matters by this Court, they be present through their counsel/representatives in the Court, on
the next date of hearing, which is 17-10-1995. We also direct the Marine Products Export
Development Authority (MPEDA), through its counsel, Mr Harish N. Salve, to do the same
exercise at its level also. Apart from that, we further direct all the State Governments/Union
Territories to issue public notices in this respect in daily newspapers which have circulation in
the coastal areas, informing the aquafarms regarding the hearing of these matters in this Court
on 17-10-1995. This may be done on two consecutive days.
Notices and publication be completed within 3 weeks from today. Meanwhile, we direct
all the State Governments/Union Territories not to give fresh licences/permission for setting
up/establishment of any aquafarm in their respective territories till further orders. - Mr M.C. Mehta, learned counsel for the petitioner, has taken us through the NEERI
Reports and other voluminous material on the record. He has vehemently contended that the
modern – other than traditional – techniques of shrimp farming are highly polluting and are
detrimental to the coastal environment and marine ecology. According to him only the
traditional and improved traditional systems of shrimp farming which are environmentally
friendly should be permitted. Mr Mehta has taken us through the Notification dated 19-2-
1991 issued by the Government of India under Section 3 of the Environment (Protection) Act,
1986 (the Act) (CRZ Notification) and has vehemently contended that setting up of shrimp
farms on the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters up to 500
metres from the High Tide Line (HTL) and the line between the Low Tide Line (LTL) and the
HTL is totally prohibited under para 2 of the said notification. The relevant part of the
Notification No. S.O. 114(E) dated 19-2-1991 is as under:
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“2. Prohibited Activities.—The following activities are declared as prohibited
within the Coastal Regulations Zone, namely:
(i) setting up of new industries and expansion of existing industries, except those
directly related to waterfront or directly needing foreshore facilities;
(ii) manufacture or handling or storage or disposal of hazardous substances as
specified in the Notifications of the Government of India in the Ministry of
Environment and Forests No. S.O. 594(E) dated 28-7-1989, S.O. 966(E) dated 27-11-
1989 and G.S.R. 1037(E) dated 5-12-1989;
(iii) setting up and expansion of fish-processing units including warehousing
(excluding hatchery and natural fish drying in permitted areas);
(v) discharge of untreated wastes and effluent from industries, cities, or towns
and other human settlements. Schemes shall be implemented by the concerned
authorities for phasing out the existing practices, if any, within a reasonable time
period not exceeding three years from the date of this notification.
(viii) land reclamation, bunding or disturbing the natural course of sea water with
similar obstructions, except those required for control of coastal erosion and
maintenance or clearing of waterways, channels and ports and for prevention of
sandbars and also except for tidal regulators, storm water drains and structures for
prevention of salinity ingress and for sweet water recharge.
(x) harvesting or drawal of groundwater and construction of mechanisms therefor
with 200 m of HTL; in the 200 m to 500 m zone it shall be permitted only when done
manually through ordinary wells for drinking, horticulture, agriculture and
fisheries…. - According to Mr Mehta the shrimp culture industry is neither “directly related to
waterfront” nor “directly needing foreshore facility” and as such is a prohibited activity under
para 2(i) of the CRZ Notification. Mr Kapil Sibal on the other hand has argued that a shrimp
farm is an industry which is directly related to waterfront and cannot exist without foreshore
facilities. Relying upon Oxford English Dictionary Mr Sibal contended that “waterfront”
means land abetting on the sea, that part of a town which fronts on a body of water.
According to him “foreshore” in terms of the said dictionary means the part of the shore that
lies between the High Tide and the Low Tide. According to Webster’s Comprehensive
Dictionary, International Edn., the expression “foreshore” means “that part of a shore
uncovered at low tide”. - It is, thus, clear that the part of the shore which remains covered with water at the
High Tide and gets uncovered and becomes visible at the Low Tide is called “foreshore”. It is
not possible to set up a shrimp culture farm in the said area because it would completely
submerge in water at the High Tide. It is, therefore, obvious that foreshore facilities are
neither directly nor indirectly needed in the setting up of a shrimp farm. So far as “waterfront”
is concerned it is no doubt correct that a shrimp farm may have some relation to the
waterfront in the sense that the farm is dependent on brackish water which can be drawn from
the sea. But on a close scrutiny, we are of the view that shrimp culture farming has no relation
or connection with the “waterfront” though it has relation with brackish water which is
available from various water bodies including sea. What is required is the “brackish water”
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and not the “waterfront”. The material on record shows that the shrimp ponds constructed by
the farms draw water from the sea by pipes, jetties etc. It is not the “waterfront” which is
needed by the industry. What is required is brackish water which can be drawn from any
source including sea and carried to any distance by pipes etc. The purpose of CRZ
Notification is to protect the ecologically fragile coastal areas and to safeguard the aesthetic
qualities and uses of the sea coast. The setting up of modern shrimp aquaculture farms right
on the sea coast and construction of ponds and other infrastructure thereon is per se hazardous
and is bound to degrade the marine ecology, coastal environment and the aesthetic uses of the
sea coast. We have, therefore, no hesitation in holding that the shrimp culture industry is
neither “directly related to waterfront” not “directly needing foreshore facilities”. The setting
up of shrimp culture farms within the prohibited areas under the CRZ Notification cannot be
permitted. - Para 2(viii) of the CRZ Notification quoted above, prohibits the bunding or disturbing
the natural course of sea water with similar obstructions. A bund is an embankment or dyke.
Alagarswami Report in para 4.3.2 (quoted above) has specifically mentioned that huge
cyclone protection dykes and peripheral dykes are constructed by the shrimp farmers. The
report further states that due to physical obstruction caused by the dykes the natural drain is
blocked and flood water accumulated in the hinterland villages. The report notices that the
shrimp ponds are constructed right on the bank of the creeks without leaving any area for
draining of flood waters. A shrimp farm on the coastal area by itself operates as a dyke or a
bund as it leaves no area for draining of the flood waters. The construction of the shrimp
farms, therefore, violates clause (viii) of para 2 of the CRZ Notification. In view of the
findings by the Alagarswami Report it may be useful to hold an inquiry/investigation to find
out the extent of loss occurred, if any, to the villages during the recent cyclone in the State of
Andhra Pradesh because of the dykes constructed by the shrimp farmers. - Annexure 1 to the CRZ Notification contains regulations regarding Coastal Area
Classification and Development. The coastal stretches within 500 m of HTL of the landward
side are classified into four categories, namely, CRZ-I, CRZ-II, CRZ-III and CRZ-IV. Para
6(2) of the CRZ Notification lays down the norms for the development or construction
activities in different categories of CRZ areas. In CRZ-III Zone agriculture, horticulture,
gardens, pastures, parks, playfields, forestry, and salt manufacture from sea level may be
permitted up to 200 m from the high tide line. The aquaculture or shrimp farming has not
been included as a permissible use and as such is prohibited even in this zone. A relevant
point arises at this stage. Salt manufacturing process like the shrimp culture industry depends
on sea water. Salt manufacturers can also raise the argument that since they are wholly
dependent on sea water theirs is an industry “directly related to waterfront” or “directly
needing foreshore facilities”. The argument stands negatived by inclusion of the salt
manufacturing industry in CRZ-III Zone under para 6(2) of the CRZ Notification otherwise it
was not necessary to include the industry therein because it could be set up anywhere in the
coastal regulation zone in terms of para 2(1) of the CRZ Notification. It is thus obvious that
an industry dependent on sea water cannot by itself be an industry “directly related to
waterfront” or “directly needing foreshore facilities”. The shrimp culture industry, therefore,
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cannot be permitted to be set up anywhere in the coastal regulation zone under the CRZ
Notification. - We are of the view that before any shrimp industry or shrimp pond is permitted to be
installed in the ecology fragile coastal area it must pass through a strict environmental test.
There has to be a high-powered “Authority” under the Act to scrutinise each and every case
from the environmental point of view. There must be an environmental impact assessment
before permission is granted to install commercial shrimp farms. The conceptual framework
of the assessment must be broad based primarily concerning environmental degradation
linked with shrimp farming. The assessment must also include the social impact on different
population strata in the area. The quality of the assessment must be analytically based on
superior technology. It must take into consideration the inter-generational equity and the
compensation for those who are affected and prejudiced. - We, therefore, order and direct as under:
- The Central Government shall constitute an authority under Section 8(3) of the
Environment (Protection) Act, 1986 and shall confer on the said authority all the
powers necessary to protect the ecologically fragile coastal areas, seashore, waterfront
and other coastal areas and specially to deal with the situation created by the shrimp
culture industry in the coastal States/Union Territories. The authority shall be headed
by a retired Judge of a High Court. Other members preferably with expertise in the
field of aquaculture, pollution control and environment protection shall be appointed
by the Central Government. The Central Government shall confer on the said
authority the powers to issue directions under Section 5 of the Act and for taking
measures with respect to the matters referred to in clauses (v), (vi), (vii), (viii), (ix), (x)
and (xii) of sub-section (2) of Section 3. The Central Government shall constitute the
authority before 15-1-1997. - The authority so constituted by the Central Government shall implement “the
Precautionary Principle” and “the Polluter Pays Principle”. - The shrimp culture industry/the shrimp ponds are covered by the prohibition
contained in para 2(i) of the CRZ Notification. No shrimp culture pond can be
constructed or set up within the coastal regulation zone as defined in the CRZ
notification. This shall be applicable to all seas, bays, estuaries, creeks, rivers and
backwaters. This direction shall not apply to traditional and improved traditional
types of technologies (as defined in Alagarswami Report) which are practised in the
coastal low-lying areas. - All aquaculture industries/shrimp culture industries/shrimp culture ponds
operating/set up in the coastal regulation zone as defined under the CRZ Notification
shall be demolished and removed from the said area before 31-3-1997. We direct the
Superintendent of Police/ Deputy Commissioner of Police and the District
Magistrate/Collector of the area to enforce this direction and close/demolish all
aquaculture industries/shrimp culture industries, shrimp culture ponds on or before
31-3-1997. A compliance report in this respect shall be filed in this Court by these
authorities before 15-4-1997.
204 - The farmers who are operating traditional and improved traditional systems of
aquaculture may adopt improved technology for increased production, productivity
and return with prior approval of the “authority” constituted by this order. - The agricultural lands, salt pan lands, mangroves, wetlands, forest lands, land
for village common purpose and the land meant for public purposes shall not be
used/converted for construction of shrimp culture ponds. - No aquaculture industry/shrimp culture industry/shrimp culture ponds shall be
constructed/set up within 1000 mts of Chilka Lake and Pulicat Lake (including Bird
Sanctuaries namely Yadurapattu and Nelapattu). - Aquaculture industry/shrimp culture industry/shrimp culture ponds already
operating and functioning in the said area of 1000 mts shall be closed and demolished
before 31-3-1997. We direct the Superintendent of Police/Deputy Commissioner of
Police and the District Magistrate/Collector of the area to enforce this direction and
close/demolish all aquaculture industries/shrimp culture industries, shrimp culture
ponds on or before 31-3-1997. A compliance report in this respect shall be filed in
this Court by these authorities before 15-4-1997. - Aquaculture industry/shrimp culture industry/shrimp culture ponds other than
traditional and improved traditional may be set up/ constructed outside the coastal
regulation zone as defined by the CRZ Notification and outside 1000 mts of Chilka
and Pulicat Lakes with the prior approval of the “Authority” as constituted by this
Court. Such industries which are already operating in the said areas shall obtain
authorisation from the “Authority” before 30-4-1997 failing which the industry
concerned shall stop functioning with effect from the said date. We further direct that
any aquaculture activity including intensive and semi-intensive which has the effect
of causing salinity of soil, or the drinking water or wells and/or by the use of
chemical feeds increases shrimp or prawn production with consequent increase in
sedimentation which, on putrefaction is a potential health hazard, apart from causing
siltation, turbidity of water courses and estuaries with detrimental implication on local
fauna and flora shall not be allowed by the aforesaid Authority. - Aquaculture industry/shrimp culture industry/shrimp culture ponds which
have been functioning/operating within the coastal regulation zone as defined by the
CRZ Notification and within 1000 mts from Chilka and Pulicat Lakes shall be liable
to compensate the affected persons on the basis of the “Polluter Pays” principle. - The Authority shall, with the help of expert opinion and after giving
opportunity to the polluters concerned assess the loss to the ecology/environment in
the affected areas and shall also identify the individuals/families who have suffered
because of the pollution and shall assess the compensation to be paid to the said
individuals/families. The Authority shall further determine the compensation to be
recovered from the polluters as cost of reversing the damaged environment. The
authority shall lay down just and fair procedure for completing the exercise. - The Authority shall compute the compensation under two heads namely, for
reversing the ecology and for payment to individuals. A statement showing the total
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amount to be recovered, the names of the polluters from whom the amount is to be
recovered, the amount to be recovered from each polluter, the persons to whom the
compensation is to be paid and the amount payable to each of them shall be
forwarded to the Collector/District Magistrate of the area concerned. The
Collector/District Magistrate shall recover the amount from the polluters, if
necessary, as arrears of land revenue. He shall disburse the compensation awarded by
the authority to the affected persons/families. - We further direct that any violation or non-compliance of the directions of
this Court shall attract the provisions of the Contempt of Courts Act in addition. - The compensation amount recovered from the polluters shall be deposited
under a separate head called “Environment Protection Fund” and shall be utilised for
compensating the affected persons as identified by the Authority and also for
restoring the damaged environment. - The authority, in consultation with expert bodies like NEERI, Central
Pollution Control Board, respective State Pollution Control Boards shall frame
scheme/schemes for reversing the damage caused to the ecology and environment by
pollution in the coastal States/Union Territories. The scheme/schemes so framed shall
be executed by the respective State Governments/Union Territory Governments under
the supervision of the Central Government. The expenditure shall be met from the
“Environment Protection Fund” and from other sources provided by the respective
State Governments/Union Territory Governments and the Central Government. - The workmen employed in the shrimp culture industries which are to be
closed in terms of this order, shall be deemed to have been retrenched with effect
from 30-4-1997 provided they have been in continuous service (as defined in Section
25-B of the Industrial Disputes Act, 1947) for not less than one year in the industry
concerned before the said date. They shall be paid compensation in terms of Section
25-F(b) of the Industrial Disputes Act, 1947. These workmen shall also be paid, in
addition, six years’ wages as additional compensation. The compensation shall be
paid to the workmen before 31-5-1997. The gratuity amount payable to the workmen
shall be paid in addition. - The writ petition is allowed with costs. We quantify the costs as Rs 1,40,000 (Rupees
one lakh forty thousand) to be paid by the States of Gujarat, Maharashtra, Orissa, Kerala,
Tamil Nadu, Andhra Pradesh and West Bengal in equal shares of Rs 20,000 each. The amount
of Rs 1,40,000 realised from the seven coastal States shall be paid to Mr M.C. Mehta,
Advocate who has assisted us in this case throughout. We place on record our appreciation for
the assistance rendered by Mr Mehta.
