Kerala High Court
Franscis K.S vs State Of Kerala on 13 June, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:41646
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947
WP(C) NO. 18205 OF 2025
PETITIONERS:
1 FRANSCIS K.S.
AGED 57 YEARS
KANAPPALLY HOUSE, NAYARAMBALAM,
ERNAKULAM, PIN - 682509
2 ANILKUMAR V
AGED 51 YEARS
VADAKKEDATHU HOUSE, NAYARAMBALAM,
ERNAKULAM,, PIN - 682509
3 UTHAMAN
AGED 70 YEARS
KARIKKAPPILLY THARA, NAYARAMBALAM,
ERNAKULAM, PIN - 682509
BY ADVS.
SRI.C.UNNIKRISHNAN (KOLLAM)
SRI.D.JAYAKRISHNAN
SHRI VIJAYKRISHNAN S. MENON
SHRI.VIVEK NAIR P.
SHRI.K.S.ARAVIND
SHRI.V.ASWIN
SHRI.ANANTHU R MURALI
SHRI.M.R.RADHAKRISHNAN
SHRI.RAHUL M.R.
SMT.SRUTHI SREEKUMAR
SMT.ADEEBA AMEEN
SHRI.G.GOWARDHAN DEV G. NAIR
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W.P.(C) No.18205/2025
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RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,
FISHERIES DEPARTMENT VIKAS BHAVAN,
4TH FLOOR, UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANATHAPURAM, PIN - 695033
2 ADDITIONAL DIRECTOR OF FISHERIES
OFFICE OF THE DIRECTOR OF FISHERIES,
VIKAS BHAWAN, THIRUVANATHAPURAM,
PIN - 695033
3 THE DEPUTY DIRECTOR OF FISHERIES
ZONAL OFFICE, SALIM ALI ROAD,1ST FLOOR ,
FISHERIES COMPLEX, ERNAKULAM, PIN - 682018
4 FISHERIES EXTENSION OFFICER NJARACKAL
MATSYA BHAVAN, NJARACKAL P.O,
ERNAKULAM, PIN - 682503
5 THE AGRICULTURE OFFICER
KRISHI BHAVAN, NAYARAMBALAM,
ERNAKULAM, PIN - 682509
6 PRINCIPAL AGRICULTURE OFFICER
PRINCIPAL AGRICULTURE OFFICE,
ERNAKULAM, PIN - 682030
BY SMT. AMMINIKUTTY, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.06.2025, THE COURT ON 13.06.2025 DELIVERED
THE FOLLOWING:
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W.P.(C) No.18205/2025
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N. NAGARESH, J.
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W.P.(C) No.18205 of 2025
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Dated this the 13th day of June, 2025
JUDGMENT
~~~~~~~~~
The petitioners are individual land owners
having properties along the sea coast in Nayarambalam in
Ernakulam District. They have been doing fish farming in their
individual holdings for the last several decades. Their land is
totally unfit for paddy cultivation due to rising sea water levels
and breaches in the protective bunds. The LLMC has
unanimously concluded as per Ext.P4 that plots belonging to
the petitioners are not suitable for paddy cultivation due to
their proximity to the sea which results in saline intrusion and
water logging.
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2. On 12.08.2024, the Principal Agricultural
Officer passed an order holding that the petitioner's land is fit
for Pokkali cultivation. The said order dated 12.08.2024 was
challenged in W.P.(C) No.1483/2025. This Court stayed any
interference with on the ongoing fish farming activities of the
petitioners as per interim order dated 20.01.2025. The interim
order has been extended from time to time.
3. The petitioners' application for licence to do
aquaculture now stands rejected on the ground that the
renewal of licence must be in accordance with the decision of
the Principal Agricultural Officer. The petitioners submitted
Ext.P12 representation to the Deputy Director of Fisheries
requesting to renew their aquaculture licences. Ext.P12
representation has not been positively responded to.
4. The counsel for the petitioners argued that
there is no statutory prohibition under Section 8(2)(e) of the
Kerala Inland Fisheries and Aquaculture Act, 2021 to issue
licence to the petitioners since no Gazette Notification has
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been issued under the provisions of the Act. The Principal
Agricultural Officer derives authority only when Gazette
Notification is issued.
5. The fields of the petitioners are lying on the
western side of Vypin - Munambam main road. It is lying 150
metres away from the sea. Paddy cultivation is practically
impossible. The Local Level Monitoring Committee has also
concluded so. The 3rd respondent is therefore compellable to
grant the petitioners full term annual licences for aquaculture.
6. The 5th respondent-Agricultural Officer filed
counter affidavit and resisted the writ petition. The 5th
respondent stated that the Kerala Inland Fisheries and
Aquaculture Amendment Act, 2021 was published on Gazette
dated 15.11.2021. Section 8(2)(e) prohibits aquaculture
activities in paddy fields. The Data Bank published as per
Ext.R5(b) describes the petitioners' property as Pokkali Nilam.
The Government has made a policy and the District Collector
has issued order directing to do fish farming and Pokkali
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cultivation alternatively. The intention is to protect the Pokkali
paddy fields from becoming more saline.
7. Focusing solely on fish cultivation in Pokkali
fields can lead to ecological degradation and economic
challenges. Mono-culture will lead to a decline in biodiversity.
Cultivating fish alone will consequently lead to poorer
conditions for fish farming, increase in soil acidity, soil salinity
and reduce oxygen availability. The writ petition is therefore
without any merit.
8. I have heard the learned counsel for the
petitioners and the learned Senior Government Pleader
representing the respondents.
9. The petitioners sought for renewal of
aquaculture licence under the Kerala Inland Fisheries and
Aquaculture Act, 2010. The application of the petitioners
stands rejected on the ground that the lands in question are
Pokkali fields and agriculture and aquaculture have to be
carried out there alternatively. Ext.P5 decision of the LLMC
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meeting held on 04.12.2021 would show that the Committee
has come to the conclusion that the plots belonging to the
petitioners are not suitable for paddy cultivation. The land is
close to the sea which results in saline intrusion and water
logging. It is an admitted position that the fields in question
were not used for agricultural activities for the last several
decades.
10. The contention of the respondents is that in
view of Section 8(2)(e) of the Kerala Inland Fisheries and
Aquaculture (Amendment) Act, 2021, there is a prohibition in
engaging in aquaculture activities in paddy field, which are
suitable for paddy cultivation of at least one crop, during the
period of paddy cultivation. Section 8 reads as follows:
8. Restriction on aquaculture activities.―
(1) No person who has not obtained a
certificate of registration and licence from an officer
authorized under the provisions of this Act, shall
engage in aquaculture activities in any inland water
body:
Provided that in order to get the registration
and licence to engage in aquaculture activities in a
public water body which falls within the boundaries of
only one Local Self Government Institution, the permit
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of the Local Self Government Institution concerned
shall also be obtained:
Provided further that no registration or
licence is required under this section for the
maintenance of fish, for entertainment, in small ponds
/ tanks of the size and type specified by the
Government through Gazette Notification.
(2) The Government may, by gazette
notification, limit, restrict or prohibit all or any of the
following matters in the aquaculture allied activitites,
whether permanently or temporarily, namely:-
(a) limit the maximum number of fish seeds
that can be used in each aquaculture method,
depending on the species of fish used;
(b) control completely the use of any drugs,
antibiotics, pesticides, fish pesticides, probiotics,
growth promoters and other chemicals, fix its
maximum quantity that can be used and fix the
educational qualifications of those who provide
technical advice to the fish farmer in order to ensure
their proper use;
(c) utilize the ecologically important areas
which are fish breeding centers or nurseries, for
acquaculture;
(d) limit the maximum weight of fish or
'biomass' depending on the species of fish, that can
be reared in each type of aquaculture, and
(e) prohibit engaging in aquaculture without
cultivating paddy in any paddy field, which are
suitable for paddy cultivation of at least one crop:
Provided that the above prohibition is not
applicable to the fields which are certified by the
Agriculture Officer concerned as unfit for paddy
cultivation.
(3) No non domestic fish and their seeds shall
be used for aquaculture without subjecting to
quarantine procedures and quality check.
(4) Water from the farm affected by fish
disease shall not be released into any public water
body without disinfecting, under the supervision of the
Authorized Officer.
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(5) The maximum carrying capacity for
engaging aquaculture activities in each public water
body may be determined by the Government through
Gazette Notification on the recommendation of the
District Aquaculture Development Agency constituted
as per sub-section (1) of section 8A of this Act and no
new registration and licence shall be issued to any
person in contravention to it.
(6) Registration and licence for engaging in
aquaculture in a public water body which experiences
high tide and low tide phenomenon, shall not be
issued without complying the prioritization of
fishermen's group, inland fisherman, Women's
Neighbourhood Group and Activity Group, nominal
farmer residing near that area. Others may e
considered, only in their absence.
(7) Under any circumstance, a person shall not
be allowed fish cages having volume of more than
one hundred cubic meters racks having areas of
more than twenty-five square meters and fish pens
having area of more than one hundred square
meters.
(8) Registration and licence for engaging in
aquaculture activities in a public water body which is
not experiencing high tide and low tide phenomenon,
shall not be issued without complying the prioritization
of fishermen's group, inland fisherman, Women's
Neighbourhood Group, Activity Group, those
belonging to Scheduled Castes and Scheduled
Tribes, ex-service man and nominal farmer, residing
near that area:
Provided that in the case of reservoirs,
others shall be considered only in the absence of the
Fishermen's Co-operative Society in the area
concerned:
Provided further that the right to arrange
aquaculture in public water bodies in forest areas is
limited only for Scheduled Tribes.
(9) Aquaculture activities in public water bodies
shall not be harmful to the environment for any
reason.
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(10) No person shall deposit or release live
domestic fish into a public water body from an
aquaculture area without the prior permission of the
Authorized Officer.
(11) No person shall use pesticides, antibiotics,
probiotics, chemicals or other drugs in public water
body or private water body, without written
instructions of the person having educational
qualification in this regard and fixed by the
Government through order.
(12) No person shall engage in aquaculture
activities of permitted fish species from any foreign
country without adopting biosafety measures.
(13) Water from the public water bodies shall not
be pumped into or taken back from the water bodies
where the scientific shrimp farming is carried out,
without the prior permission of the Authorized Officer.
(14) No aquaculture activity shall be carried out
in a manner obstructing water transport.
(15) No aquaculture activity in a public water
body shall obstruct the other public needs of that
water body.
(16) No person shall engage in any activity
which may cause damage to any infrastructure or
produce of aquaculture activity.
(17) The relocation of fish cage, fish pen or rack
from a permitted place to another place for
acquaculture activitites in a public water body shall
only be in the prescribed manner.
(18) Any person who obtained registration
certificate and licence to engage in aquaculture
activities shall have the duties as prescribed, to
sustain the aquaculture sector.
(19) Whoever contravenes the provisions of this
section shall be subjected to penal actions under
section 36.
Sub-section (2) begins with the words "The Government may,
by Gazette Notification, limit, restrict or prohibit" certain
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matters. Therefore, for imposing any such prohibition, there
must be a Gazette Notification duly published by the
Government. In the case of the fields of the petitioners, no
Gazette Notification has been brought to my notice.
11. Though the 5th respondent would rely on
Ext.R5(b) Notification, a perusal of Ext.R5(b) would indicate
that it is only a Gazette Notification of paddy land / wetland
prepared under Section 5 of the Kerala Conservation of Paddy
Land and Wetland Act, 2008. To impose restrictions under the
Kerala Inland Fisheries and Aquaculture Act, 2010, a Gazette
Notification under Section 8 is required, which is absent.
12. When the LLMC attended by both the
Agricultural Officer and the Village Officer has concluded that
paddy cultivation is impossible in the fields of the petitioners, I
find that the decision not to issue aquaculture licence to the
petitioners is unjustified. Furthermore, the order of the
Principal Agricultural Officer holding that the petitioners' land
are fit for Pokkali cultivation, is the subject matter of W.P.(C)
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No.1483/2025 which is pending and in which interim orders
are passed in favour of the petitioners.
13. In the afore circumstances, the petitioners
are entitled to relief. Ext.P11 is set aside. The 3rd respondent
is directed to grant the petitioners full term annual licence for
aquaculture for the ensuing year under the Kerala Inland
Fisheries and Aquaculture Act, 2010. Licences shall be
granted within a period of 15 days. The orders passed
pursuant to this judgment will be subject to the outcome of
W.P.(C) No.1483/2025.
The writ petition is disposed of as above.
Sd/-
N. NAGARESH, JUDGE
aks/11.06.2025
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APPENDIX OF WP(C) 18205/2025
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE LICENSE DATED
20.07.2024 ISSUED TO THE 1 ST
PETITIONER
Exhibit P2 TRUE COPY OF THE LICENSE DATED
19.03.2024 ISSUED TO THE 2" PETITIONER
Exhibit P3 TRUE COPY OF THE LICENSE DATED
09.04.2024 ISSUED TO THE 3 PETITIONER
Exhibit P4 TRUE COPY OF NOC/CERTIFICATE NO. NBLM
13/2021-22 DATED 06.12.2021 ISSUED TO
THE PETITIONERS
Exhibit P5 TRUE COPY OF THE AGENDA AND DECISIONS
OF THE LLMC MEETING DATED 04.12.2021
OBTAINED THROUGH RTI DATED 26.03.2025
Exhibit P6 A TRUE COPY OF THE COMMUNICATION DATED
06.08.2022
Exhibit P7 A TRUE COPY OF COMMUNICATION NO.
DFTVM/3080/2022—C3 DATED
26.10.2022 ISSUED BY THE FISHERIES
DIRECTOR TO THE FISHERIES DEPUTY
DIRECTORS
Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED
26.10.2023, ISSUED BY THE FISHERIES
DIRECTOR TO THE PRINCIPAL SECRETARY TO
GOVERNMENT, FISHERIES DEPARTMENT
Exhibit P9 TRUE COPY OF THE INTERIM ORDER DATED
20.01.2025 IN WP(C) NO. 1483 OF 2025
Exhibit P10 TRUE COPY OF THE EXTENSION ORDER DATED
03.04.2025
Exhibit P11 TRUE COPY OF THE COMMUNICATION OF 3RD
RESPONDENT DATED 13.03.2025 ALONG WITH
LETTER DATED 02.09.2024 ISSUED BY THE
PRINCIPAL AGRICULTURAL OFFICER
Exhibit P12 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONERS
RESPONDENT'S EXHIBITS
EXHIBIT R5(a) True copy of the page No. 1 of the
notification dated 14.11.2021.
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EXHIBIT R5(b) True copy of the relevant pages of the
gazette notification dated 23.02.2012
which includes petitioner property.
EXHIBIT R5(c) True copy of the proceedings of the
District Collector dated 17.02.2025
along with the translation.
