DEBENDRANATH PATTNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) WHAT is sought to be challenged in this writ petition filed under Article 226 of the Constitution of India by a group of villagers of different villages situated on the bank of river 'Luna', in the shape of a public interest litigation, is the notification (Istahar) issued by the Tahsildar, Puri expressing the intention to lease out water source of Ac. 363.994 decimals as fishery shairat of river 'Luna' in the Mouzas extending from village Jamiligoda to village Dethiapada. It is asserted in the writ petition that in the years past, only 14.49 acres of water source of river 'Luna' was being leased out as fishery shairat by public auction, but then the persons in whose favour the lease was being settled, used to catch fish in the entire river, thereby polluting the water of the river and causing immense environmental problems. The lessees, in order to attract fish, used to throw dead animals and corpses into the river, thereby polluting the water source and causing health hazards. The lessees also used to put bamboo sticks inside the water at different places causing hindrance to the common populous. Relying upon a circular issued by the Government of Orissa, Revenue and Excise Department, dated 15.7.1998, the petitioners submit that inspite of the decision taken not to lease out/auction/settle drainage channels meant for discharge of flood and saline water into 'Chilika' the authorities in fragrantviolation of the said circular have decided to lease out 363.994 acres of water source as fishing shairat. The learned counsel for the petitioners also brought to our notice a circular issued by the Collector, Puri cautioning the Sub collectors and all the Tahsildars of Puri district not to put to auction or settle in favour of individuals or cooperative societies, any drainage channel for fish farming or prawn culture, thereby obstructing the smooth drainage of flood and saline water and affecting the productivity of the adjoining agricultural lands. The Tahsildars were called upon to furnish categorical certificates to the effect that no drainage channel has been leased out or settled within their jurisdiction. Learned counsel for the petitioners strenuously submitted that though losely called 'river Luna', the same is actually a drainage channel and is squarely covered by the circular of the Government referred to above. It is further submitted that after coming to know about the notice (Istahar), Annexure 2 to the writ petition, the petitioners submitted a detailed representation before the Collector, Puri, inter alia bringing to his notice the environmental dislocation caused by the lessees who were allowed to fish in Luna drainage and prayed not to grant shairat lease in respect of 363.994 acres of water source.

(2.) AFTER receiving the Rule issued by this Court, opposite party Nos. 1 to 4 appeared and the Additional Tahsildar, Puri has filed a counter affidavit on behalf of the said opposite parties. It is forcefully submitted that in fact river 'Luna' is a river and not a drainage channel, as projected by the petitioners. In support of such contention, the opposite parties have referred to a clarification report of the Executive Engineer, Puri Irrigation Division, vide Annexure A/1 to the counter affidavit, in which it is clearly stated that 'Luna' is not a drain, but a river which starts from Delang and ends at Chilika lake. The length of this river is about thirty four kilometres. The said report is also fortified by the jurisdiction map of Puri Irrigation Division. It is also contended in the counter affidavit that the petitioners have submitted an objection pursuant to issue of the notification Annexure 2, which is pending enquiry before the Collector and notices have been issued to all who may be affected to take part in the enquiry and as such the present writ petition is not maintainable.

(3.) THE traditional fishermen, in whose favour fishing right in respect of 14.49 acres of water source was leased out have also entered appearance by filing a petition for intervention. It is submitted that the interveners belong to the villages adjoining the river and they are traditional fishermen. Right from 1962 63 they have been taking fishing lease in respect of 14.49 acres. The allegation that they are throwing dead animals and corpses into the river and obstructing the free flow of water is stoutly denied. It is reiterated that the interveners catch fish only in their traditional manner and catching fish is their only livelihood. In support of their claim they have filed xerox copies of different orders passed in Shairat Lease Cases which clearly reveal that 14.49 acres of water source was being leased out in their favour year after year.