Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 197 OF 2005
ATMA LINGA REDDY & ORS. … PETITIONERS
VERSUS
UNION OF INDIA & ORS. … RESPONDENTS
J U D G M E N T
C.K. THAKKER, J.
1. The present writ petition is
instituted by the petitioners as pro-bono
publico and is in the nature of Public Interest
Litigation (PIL). The petitioners have
approached this Court by invoking Article 32 of
the Constitution praying for an appropriate
writ, direction or order, restraining
respondent No. 2 – State of Karnataka and
respondent No. 4 – Sree Swarna Energy Limited,
from constructing a Mini Hydro Power Project at
2
Rajolibanda Diversion Scheme (‘RDS’ for short),
Raichur District, Karnataka, by quashing and
canceling the Power Project. A prayer is also
made to direct the State of Karnataka to
regulate water at RDS anicut and to ensure
smooth flow of water in the RDS canal to the
extent of full allocated water of 15.9 TMC to
the State of Andhra Pradesh. By way of interim
relief, a prayer is made to grant stay against
construction of Power Project at RDS.
2. It is stated by the petitioners in the
petition that they are citizens of India and
are residents of District Mehboobnagar in the
State of Andhra Pradesh. They are having
agricultural lands in the ayacut under RDS
(Rajolibanda Diversion Scheme). According to
the petitioners, RDS is an inter-State
irrigational project covering lands in the
States of Karnataka and Andhra Pradesh. The
project comprises of an ayacut of RDS on the
river Tunghabadra (inter-State river),
tributary of river Krishna, near Village
3
Rajolibanda in Raichur District in the State of
Karnatka. The canal is of the length of about
89 miles (143 KM) having discharge capacity of
850 cusecs of water. It was constructed by the
then Nizam of Hyderabad before more than fifty
years.
3. According to the petitioners,
consequent upon the reorganization of States
under the States Reorganization Act, 1956, the
State of Andhra Pradesh was formed. 26/27
miles (41.6 KM) of the canal with an ayacut of
5,900 acres fell within the State of Mysore
(now the State of Karnataka) while the
remaining portion of about 63 miles (100.4 KM)
of canal with an ayacut of 87,000 acres came
within the State of Andhra Pradesh.
4. The petitioners stated that RDS caters
needs of drinking and irrigation water in
Mehboobnagar District, which is a drought-prone
area of the State of Andhra Pradesh. About
40,000 farmers, out of which 30,000 are small
and marginal farmers, are entirely dependent on
4
the water from the said canal for drinking,
irrigation, sanitation and other domestic
purposes.
5. The petitioners contended that
respondent No. 2 - State of Karnataka has acted
illegally and unlawfully in sanctioning and
approving the Power Project in favour of
respondent No. 4 – a private party. Due to the
said project, sufficient water for drinking
purpose and for irrigation facilities is not
available to the residents and farmers of
District Mehboobnagar of the State of Andhra
Pradesh. The petitioners in the larger interest
of the public are, therefore, constrained to
approach this Hon’ble Court under Article 32 of
the Constitution.
6. The petitioners stated that for
equitable distribution of water of river
Krishna and the river valley thereof, the
Central Government, by a notification dated
April 10, 1969 under the inter-State Water
Disputes Act, 1956 (ACT XXXIII of 1956)
5
(hereinafter referred to as ‘the Act’) created
and established Krishna Water Disputes
Tribunal, headed by Hon’ble Mr. Justice
Bachawat, the then sitting Judge of this
Hon’ble Court. The Tribunal was to resolve
claims and disputes between various States and
allocation of water of river Krishna and its
tributaries among the riparian States. The
States of Maharashtra, Karnataka and Andhra
Pradesh are the riparian States of the inter-
State Krishna river. Whereas the State of
Karnataka is at the top, the State of Andhra
Pradesh is the lowest riparian State. The
Tribunal considered the competing claims of all
the States and submitted interim report on
December 24, 1973. The final report was
submitted by the Tribunal on December 27, 1976
under Section 5 of the Act. The Central
Government notified the final report as
required by Section 6 of the Act. The decision
of the Tribunal has the force of a decree of
the Supreme Court (this Court).
6
7. It is the allegation of the
petitioners that in 2002-03, the State of
Karnataka granted unilateral sanction and
approval to respondent No. 4 to construct and
operate a Mini Hydel Power Project to generate
4.5 Mega Watts power using the water of RDS
without the consent of the State of Andhra
Pradesh. An agreement was entered into between
the State of Karnataka (respondent No. 2) and
Sree Swarna Energy Limited—a private Company
(respondent No. 4) on September 26, 2003. The
action was taken by respondent No. 2 – State of
Karnataka illegally and unlawfully with a view
to oblige respondent No.4. Apart from the State
of Andhra Pradesh, approval or consent of other
riparian State, i.e. the State of Maharashtra
was also not taken nor was the matter referred
to Central Electrical Authority (CEA) or to
Central Water Commission (CWC). As the lowest
riparian State, the State of Andhra Pradesh
will suffer the most. Moreover, the execution
of the Power Project was entrusted to a private
7
agency. It was alleged that one Mr. Y.V. Subba
Reddy, who is the Managing Director of the
Company is co-brother of Dr. Y.S. Rajasekhar
Reddy, Hon’ble the Chief Minister of the State
of Andhra Pradesh. Thus, the project has been
entrusted to respondent No. 4 with a view to
oblige the said respondent. The Power Project
would remain in operation for a period of
thirty years from the date of commissioning of
the power house and as per the term in the
agreement, thereafter it would be handed over
to the State of Karnataka. But in the agreement
itself, there is a stipulation for renewal at
the option of the company for a further period
of twenty years. Thus, virtually, the power
project has been assigned to an individual
operator and put in the hands of private-
management for a period of half a century.
8. Petitioners have further stated that
the power channel is so designed that it will
take away water from pondage of RDS which would
result in substantially curtailing the flow of
8
water diverting water to Power Project. It
would adversely affect 40,000 farmers, their
family members and the residents in the ayacut
area of RDS canal in the State of Andhra
Pradesh.
9. According to the petitioners, water is
the most essential natural resource upon which
the life of all living beings depends. The
human need of drinking water is paramount,
perennial and eternal. Of all human needs, need
for drinking and domestic use of water is
inevitable. Equally important is the role of
water in irrigation which is the only source
that enables production of food-grains, another
essential component for survival of human life.
Right to water, therefore, is held to be part
and parcel of right to life within the meaning
of Article 21 of the Constitution. In multiple
uses of water, drinking purpose must have the
top most priority. The second preference
should be given to irrigation. Power production
cannot have precedence over them. Use of water
9
for producing electricity can never be
preferred at the cost of drinking purpose or
irrigation facility. The petitioners have,
therefore, prayed that appropriate relief is
required to be granted by this Court by
allowing the petition and by issuing necessary
directions to the respondents.
10. On May 9, 2005, notice was issued by
this Court. Affidavits and further affidavits
were filed by the parties. The Registry was
then directed to place the matter for final
hearing on a non-miscellaneous day. That is
how the matter has been placed before us.
11. An affidavit in reply is filed by the
State of Karnataka. It is, inter alia ,
contended in the said affidavit that a writ
petition filed by the petitioners under Article
32 of the Constitution is not maintainable in
view of Article 262(2) of the Constitution read
with Section 11 of Act XXXIII of 1956 which
bars jurisdiction of all Courts, including this
Court. It is also stated that water disputes
10
regarding RDS is pending for consideration
before Krishna Water Disputes Tribunal and on
that ground also, the petition is not tenable.
One more preliminary objection is raised that
petitioners have no locus standi to agitate
water disputes or a matter connected therewith
or related to such dispute. It is urged that
even if the dispute involves enforcement of
adjudicated decision under the Act (since it
has the force of a decree of this Court), the
remedy is available to the aggrieved State to
get it executed/implemented. Again, it is only
a State which can file a suit in this Court
under Article 131 of the Constitution to get
any dispute adjudicated in certain cases.
Obviously, therefore, a petition filed by the
petitioners is not maintainable and cannot be
entertained.
12. On merits, it was contended that the
grievance raised by the petitioners that the
Mini Hydel Power Project would consume water is
totally unfounded and ill-conceived. The scheme
11
contemplates production of electricity on the
run-off-the-river technology which involves ‘no
consumptive utilization of water’ at all.
13. The scheme works thus;
“a. A separate canal would be cut at
a distance of about 120 metres
above the Rajolibanda Diversion.
b. It is the surplus water which
would be utilized under the Mini
Hydel Scheme.
c. The drawal level of the canal
would be one foot higher than
the drawal level of Rajolibanda
Diversion Canal, which will
ensure that the water meant to
be utilized under the
Rajolibanda Diversion Canal is
not affected. The gates of the
proposed canal will be
electronically operated through
sensors. The gates will open
automatically only when the
depth of water over the anicut
is more than 15 cm. When the
water level comes back to 15 cm.
above the anicut, the gates of
the canal get automatically
closed. By this process, the
designed discharge of 850 cusecs
(24 cumecs) in the Rajolibanda
Diversion Scheme Irrigation
Canal is always ensured when the
water level is up to the crest
level of the Rajolibanda
Diversion Scheme anicut.”
12
14. It is also stated that the decision of
the Krishna Water Disputes Tribunal permits
utilization of water for ‘ production of power’ .
Diversion of water for the purpose of ‘Power
Project’, hence, cannot be termed illegal,
unlawful or against the award of the Tribunal.
15. An affidavit is also filed by
respondent No. 4—Company supporting the stand
taken by the State of Karnataka in its
affidavit. The Managing Director of the Company
asserted that the project had been designed as
a “run-off-river-scheme” which does not involve
consumption of water at all and the power would
be generated only when there is a spill over of
water over the anicut after meeting the
irrigation demands. The petition has been filed
with a view to stall the project. The
litigation is not a Public Interest Litigation
(PIL) and is instituted only to make political
gains by the opposition parties and to malign
13
the present Chief Minister. It was further
stated that when the Project was cleared,
another political Party was in power and not
the present Chief Minister. Moreover, the
entire project is located in the State of
Karnataka. It was stated that the cost of
project is about Rs. 20.60 crores. Necessary
approval has been granted by the State
concerned, i.e. State of Karnataka and there is
no illegality in the grant of project. The work
had already commenced on November 25, 2004 and
major portion thereof is over. About 9.40 crore
rupees had been spent. It was also stated that
being a Mini Hydel Project, it was not required
to be referred to other States, Central
Electrical Authority (CEA) or Central Water
Commission (CWC). They have been joined as
party-respondents in the writ petition only
with a view to cause delay to the project. The
writ petition is thus an abuse of process of
court and the Court is being used as a
14
political platform to achieve political mileage
by the opposition parties.
16. An affidavit-in-reply is filed by the
State of Andhra Pradesh indirectly supporting
the case of the petitioners. It was alleged
that the State of Karnataka has been utilizing
more than its allocated share of water taking
advantage of its location at the top and having
control of flow of water as a riparian State.
It is further stated that Mini Hydel Scheme
would adversely affect the State of Andhra
Pradesh and it would be detrimental to the
interests of the farmers of the State. It was,
therefore, stated that the State of Karnataka
could not have entered into an agreement with
respondent No. 4 without the consent of the
State of Andhra Pradesh.
17. In a counter affidavit filed by the
Central Water Commission (CWC) respondent No.
1, it was stated that the Ministry of Water
Resources and Central Water Commission ‘has no
role in the issue’ involved in the petition. It
15
went on to state that the Mini Hydel Project is
likely to have an impact on the flow of RDS
Scheme. It was also stated that the project
was not referred to by the State of Karnataka
to the Central Electrical Authority (CEA) for
clearance.
18. In paragraph 10 of the Affidavit, the
Commission stated;
“That it is also relevant to point
out that second Krishna Water
Disputes Tribunal has already been
constituted and in the
construction of the proposed
project any issue involved is
inter-State between the States of
Andhra Pradesh and Karnataka then
the matter should be referred to
the Tribunal for examination.”
19. Rejoinder-affidavits to all the
counter-affidavits have been filed by the
petitioners reiterating what was averred and
contended in the writ petition. Additional
Affidavits have also been filed by the parties.
20. We have heard the learned counsel for
parties. The learned counsel for the contesting
respondents raised certain preliminary
16
objections to maintainability of the writ
petition. It was submitted that a petition in
this Court under Article 32 of the Constitution
is not maintainable in view of the provisions
of the Constitution as also the provisions of
the Act.
21. Let us consider legal position in the
light of preliminary objections against the
maintainability of the writ-petition.
22. Article 262 deals with “ Disputes
relating to Waters ” and is of great importance.
It may, therefore, be quoted in extenso;
262. Adjudication of disputes
relating to waters of inter-State
rivers or river valleys .—(1)
Parliament may by law provide for
the adjudication of any dispute or
complaint with respect to the use,
distribution or control of the
waters of, or in, any inter-State
river or river valley.
(2) Notwithstanding anything in
this Constitution, Parliament may
by law provide that neither the
Supreme Court nor any other court
shall exercise jurisdiction in
respect of any such dispute or
complaint as is referred to in
clause (1) .”
17
(emphasis supplied)
23. Article 131 of the Constitution is
another material provision. It confers
original jurisdiction on this Court in certain
cases and reads thus;
“131. Original jurisdiction of the
Supreme Court .— Subject to the
provisions of this Constitution,
the Supreme Court shall, to the
exclusion of any other court, have
original jurisdiction in any
dispute-
(a) between the Government of India
and one or more States; or
(b) between the Government of India
and any State or States on one
side and one or more other
States on the other; or
(c) between two or more States,
If and insofar as the dispute
involves any question (whether of
law or fact) on which the existence
or extent of a legal right depends:
Provided that the said
jurisdiction shall not extend to a
dispute arising out of any treaty,
agreement, covenant, engagement,
sanad or other similar instrument
which, having been entered into or
executed before the commencement of
this Constitution, continues in
operation after such commencement,
18
or which provides that the said
jurisdiction shall not extend to
such a dispute.
24. In exercise of power under Article 262
of the Constitution, Parliament enacted a law
known as the Inter-State River Water Disputes
Act, 1956 (ACT XXXIII of 1956) with a view “to
provide for the adjudication of disputes
relating to Waters of inter-State rivers and
river valleys”.
25. Section 3 deals with complaints by the
State Governments as to water disputes and
enacts that if it appears to the Government of
any State that a water dispute with the
Government of another State has arisen or is
likely to arise by reason of the fact that the
interests of the State, or of any of the
inhabitants thereof, in the waters of an inter-
State river or river valley have been, or are
likely to be, affected prejudicially, it may
request the Central Government to refer the
water dispute to a Tribunal for adjudication.
19
Whereas Section 4 provides for constitution of
Tribunal, Section 5 relates to adjudication of
water disputes.
26. Section 6 requires the Central
Government to publish decisions of the Tribunal
and the effect of such publication. It reads
thus;
6. Publication of decision of
Tribunal
(1) The Central Government shall
publish the decision of the Tribunal
in the Official Gazette and the
decision shall be given effect to by
them.
(2) the decision of the Tribunal,
after its publication in the
Official Gazette by the Central
Government under sub-section (1),
shall have the same force as an
order or decree of the Supreme
Court.
27. Section 11 is extremely important
provision and may be reproduced;
11. Bar of jurisdiction of Supreme
Court and other Courts.-
Notwithstanding anything contained
in any other law, neither the
Supreme Court nor any other Court
shall have or exercise jurisdiction
20
in respect of any water dispute
which may be referred to a Tribunal
under this Act.”
28. In the light of the scheme as
envisaged by the Makers of the Constitution as
also by Parliament under the Act XXXIII of 1956
in connection with water disputes between
inter-States, it is clear to us that such
disputes cannot be made subject matter of
petition either in a High Court under Article
226 or in this Court under Article 32 of the
Constitution. Probably , Article 262 is the
only provision which enables Parliament to oust
and exclude jurisdiction of all Courts
including the Supreme Court (this Court). It is
also pertinent to note that Clause (2) of
Article 262 contains non-obstante clause
(“Notwithstanding anything in this
Constitution”). It is no doubt true that
Article 262 of the Constitution is not self-
executory inasmuch as it does not, by itself,
take away the jurisdiction of this Court in
21
respect of disputes relating to waters of
inter-State rivers or river-valleys. It is an
enabling provision and empowers Parliament to
enact a law providing for adjudication of such
disputes or complaints, excluding the
jurisdiction of all Courts including this Court
(Supreme Court). Article 131 of the
Constitution which enables the Central
Government or a State Government to institute a
suit in this Court on its Original Side in
certain cases also cannot be invoked in inter-
State water disputes in view of Section 11 of
the Act [ vide Tamil Nadu Cauvery Sangam v.
Union of India, (1990) 3 SCC 440]. In other
words, the provisions of Article 131 of the
Constitution have to be construed harmoniously
subject to the provisions of Article 262 of the
Constitution. A petition under Article 32 of
the Constitution, hence, cannot be entertained
by this Court.
29. The learned counsel for the
petitioners, however, strenuously urged that on
22
more than one ground, the present petition is
not barred. Firstly , the petition is not filed
by a State and hence bar contemplated by
Article 262(2) read with Article 131 of the
Constitution and Section 11 of the Act has no
application. Secondly, it has been held by
this Court in several cases that right to get
water is a part of right to life under Article
21 of the Constitution. If it is so, Article
32 can certainly be invoked by the petitioners,
particularly when the petition is in the nature
of PIL. Thirdly, the petitioners cannot
approach the Tribunal constituted under the Act
for the enforcement of their rights to get
water. In fact, an Interim Application NO. 34
of 2006 was filed by the petitioners before the
Tribunal but was dismissed observing that the
petitioners have no locus standi. If this Court
holds that a petition is not maintainable in
this Court, they have no remedy for the
enforcement of their right recognized by the
Constitution and guaranteed by Article 32
23
enshrined in Part III of the Constitution. It
would violate basic philosophy of Rule of Law
reflected in the well-known maxim ubi jus ibi
remedium (wherever there is right, there is
remedy). It was, therefore, submitted that the
present petition is maintainable and should be
decided on merits.
30. In our considered opinion, however,
preliminary objections raised on behalf of the
contesting respondents are well founded and are
required to be upheld. We have already
extracted the relevant provisions of the
Constitution as also of Act XXXIII of 1956. The
Founding Fathers of the Constitution were aware
and conscious of sensitive nature of inter-
State disputes relating to waters. They,
therefore, provided machinery for adjudication
of such disputes relating to waters of inter-
State rivers or river valleys. By enacting
Article 262, they empowered Parliament to enact
a law providing for adjudication of any dispute
or complaint with respect to the use,
24
distribution or control of waters of any inter-
State river or river valley. They, however, did
not stop there. They went ahead and empowered
Parliament to exclude the jurisdiction of all
Courts including the final Court of the country
in such disputes. The intention of Framers of
the Constitution, in our opinion, was clear,
obvious and apparent. It was thought proper
and appropriate to deal with and decide such
sensitive issues once and for all by a law made
by Parliament.
31. The provisions of Act XXXIII of 1956
are also relevant and pertinent. Clause (c) of
Section 2 defines ‘water dispute’ to mean “any
dispute or difference between two or more State
Governments with respect to —
(i) the use, distribution or control of the
waters of, or in, any inter-State river
or river valley; or
(ii) the interpretation of the terms of any
agreement relating to the use,
distribution or control of such waters
25
or the implementation of such agreement;
or
(iii) the levy of any water rate in
contravention of the prohibition
contained in section 7”.
32. Section 3 of the Act provides for
“Complaints by State Governments as to water
disputes ” . It runs as under;
Section 3 - Complaints by State
Governments as to water disputes —If it
appears to the Government of any State
that a water disputes with the
Government of another State has arisen
or is likely to arise by reason of the
fact that the interests of the State,
or of any of the inhabitants thereof,
in the waters of an inter-State river
or river valley have been, or are
likely to be, affected prejudicially
by—
(a) any executive action or
legislation taken or passed, or
proposed to be taken or passed, by
the other State; or
(b) the failure of the other State or
any authority therein to exercise
any of their powers with respect
to the use, distribution or
control of such waters; or
26
(c) the failure of the other State to
implement the terms of any
agreement relating to the use,
distribution or control of such
waters the State Government may,
in such form and manner as may be
prescribed, request the Central
Government to refer the water
dispute to a Tribunal for
adjudication.
33. Bare reading of the above provisions
leaves no room for doubt that they are very
wide. Section 3 deals with situations not only
where a water dispute has actually arisen
between one State and another State, but also
where such dispute is “likely to arise”.
Moreover, it applies not only to those cases in
which interest of the State has been
prejudicially affected, but also embraces
within its sweep interest of any of the
inhabitants thereof which has been affected or
likely to be affected. To us, therefore, it is
abundantly clear that such a dispute is covered
by Article 262 of the Constitution and should
be dealt with in accordance with the provisions
27
of Act XXXIII of 1956 and it cannot be
challenged in any Court including this Court.
34. In Tamil Nadu Cauvery Sangam, this
Court observed;
“It is thus clear that Section 11 of
the Act bars the jurisdiction of all
courts including this Court to
entertain adjudication of disputes
which are referable to a tribunal
under Section 3 of the Act. Therefore,
this Court has no jurisdiction to
enter upon the factual aspects raised
in the writ petition”.
35. In Cauvery Water Disputes Tribunal,
Re, 1993 Supp (1) SCC 96 (II), a Reference was
made to this Court by the Hon’ble the President
of India under Article 143 of the Constitution
and opinion of the Court was sought on certain
questions. This Court considered the provisions
of Articles 262 and 131 of the Constitution as
also Section 11 of the Act.
36. The Court inter alia opined;
“ The effect of the provisions of
Section 11 of the present Act, viz.,
the Inter-State Water Disputes Act
read with Article 262 of the
Constitution is that the entire
judicial power of the State and,
28
therefore, of the courts including
that of the Supreme Court to
adjudicate upon original dispute or
complaint with respect to the use,
distribution or control of the water
of, or in any inter-State river or
river valleys has been vested in the
Tribunal appointed under Section 4 of
the said Act . It is, therefore, not
possible to accept the submission that
the question of grant of interim
relief falls outside the purview of
the said provisions and can be
agitated under Article 131 of the
Constitution. Hence any executive
order or a legislative enactment of a
State which interferes with the
adjudicatory process and adjudication
by such Tribunal is an interference
with the judicial power of the State.
In view of the fact that the Ordinance
in question seeks directly to nullify
the order of the Tribunal passed on
25th June, 1991, it impinges upon the
judicial power of the State and is,
therefore, ultra vires the
Constitution”.
(emphasis supplied)
37. In view of the above legal position,
the submission of the petitioners that the bar
envisaged by Section 11 of the Act would not
cover cases of private individuals or
petitioners approaching this Court as pro bono
publico, and its application is limited to
29
States has no force and we express our
inability to agree with the learned counsel.
38. Ultimately, what is contemplated by
the Act is to look into, to protect and to
safeguard interests of the State as also of its
subjects and citizens. Precisely for that
reason, Section 3 has been worded widely. It
provides for constitution of Tribunal for
adjudication by the Central Government on a
dispute raised or complaint made by any State
that interest of the State or any of the
inhabitants thereof has been prejudicially
affected or likely to be affected. In our
considered opinion, therefore, the present
petition under Article 32 is not maintainable.
39. The learned counsel for the
petitioner, however, referred to a decision of
this Court in Narmada Bachao Andholan v. Union
of India & Ors., (2000) 10 SCC 664. In para 248
of the reported decision, the majority, after
referring to Resolution of United Nations
Organization (UNO), observed;
30
“248. Water is the basic need for the
survival of human beings and is part
of right of life and human rights as
enshrined in Article 21 of the
Constitution of India and can be
served only by providing source of
water where there is none. The
Resolution of the U.N.O. in 1977 to
which India is a signatory, during the
United Nations Water Conference
resolved unanimously inter alia as
under:
All people, whatever their
stage of development and
their social and economic
conditions, have the right to
have access to drinking water
in quantum and of a quality
equal to their basic needs”.
40. Reference was also made to A.P.
Pollution Control Board II v. Prof. M.V.
Nayudu (Retd.) & Ors., (2001) 2 SCC 62. In that
case also, the Court referred to Resolution of
UNO, observations of this Court in Narmada
Bachao Andolan and emphasized the right to
access to drinking water as basic and
fundamental to life and a duty of the State
under Article 21 to provide clean drinking
water to its citizens. The Court also insisted
on the need of healthy environment and
31
sustainable development as a part of
fundamental right to life embodied in Article
21 of the Constitution.
41. Yet in another case i.e. State of
Haryana v. State of Punjab, (2002) 2 SCC 507,
this Court had an occasion to consider a
similar issue. There, a suit was filed by the
State of Haryana against State of Punjab. The
contention of the defendant was that such suit
was barred by Section 11 of 1956 Act read with
Article 262 (2) of the Constitution.
42. Considering the relevant provisions of
Articles 131 and 262(2) of the Constitution as
also Sections 2(c)(i) and (ii) read with
Section 11 of the Act and keeping in view the
averments in the plaint as a whole, the Court
held that the dispute could not be said to be a
2
‘water dispute’ within the meaning of Section
(c) of the Act, was not referable to a Tribunal
and as such, bar of Article 262(2) and Section 11
of the Act was not attracted. The suit was held
maintainable under Section 131 of the
32
Constitution. The decision, in our opinion, has no
application to the case on hand.
43. Our attention has also been invited to a
decision of the Constitution Bench of this Court
in State of Karnataka v. State of Andhra Pradesh &
Ors., (2000) 9 SCC 572. In that case, this Court
was called upon to consider the meaning of the
term ‘decision’ of the Tribunal constituted under
Section 4 of the Act. The decision has no
relevance so far as the present controversy is
concerned.
44. From the relevant provisions of the
Constitution, Act XXXIII of 1956 and the decisions
referred to hereinabove, there is no doubt in our
mind that the present writ petition under Article
32 of the Constitution is not maintainable.
45. But this is not the only ground on
which the petition is liable to be dismissed.
There is yet another equally sustainable and
well-founded reason for not entertaining the
so-called grievance of the petitioners raised
in this petition.
33
46. The learned counsel for the contesting
respondents have stated that a dispute between
the State of Andhra Pradesh and State of
Karnataka has already been referred to a
Tribunal constituted under the Act under the
Chairmanship of Hon’ble Mr. Justice Brijesh
Kumar, a retired Judge of this Court and the
proceedings are pending. The State of Andhra
Pradesh has acted as parens patria and has made
a complaint and raised a dispute as to
availability of water to the State of Andhra
Pradesh and its citizens. The counsel invited
our attention to the fact that a specific
issue, being issue No.22A, has been framed by
the Tribunal at the instance of the State of
Andhra Pradesh, which reads as under:
“Whether the State of Karnataka is
entitled to construct Mini Hydel Power
Project from the common bondage of
Rajolibanda Diversion Scheme without
the consent of State of Andhra
Pradesh?”
47. Thus, the question of construction of
Mini Hydel Project, challenged in the present
34
proceedings, is very much before the Tribunal
constituted under the Act and the matter is
sub judice . It also appears that the State of
Andhra Pradesh prayed for interim relief in
respect of above issue by filing Interim
Application No. 8 of 2006 before the Tribunal.
One of the prayers in I.A. 8 of 2006 related to
‘Rajolibanda Anicut Mini Hydel Scheme’ and
injunction was sought restraining the State of
Karnataka from constructing or proceeding with
the said project. The Tribunal, however, did
not grant interim relief by an order dated
November 15, 2006.
48. In para 9.4 of the order, the Tribunal
stated;
“However, we make it clear that the
construction of these projects will
not entitle the State of Karnataka
either to raise any demand on the
basis of prior or committed
utilization of the water in these
projects even though community
interest might have grown or may grow
or that substantial amount or fund
might have been spent for the
construction of these projects, as of
right, in the surplus water and such
prior use or committed use or
35
protected use, whatever may be the
case, will be subject to further order
or final decision of this Tribunal.
49. The State of Andhra Pradesh filed
another application being Interim Application
No. 28 of 2006 under sub-section (3) of Section
5 of the Act before the Tribunal for
clarification of the earlier order but even
that application was dismissed on April 27,
2007 observing that no clarification was
required.
50. The counsel referred to the said
applications and orders passed thereon and
submitted that the Tribunal had considered this
aspect. So far as Interim Application No. 28 of
2006 is concerned, the same was dismissed by
the Tribunal on April 27, 2007. The relevant
portion relating to Mini Hydel Power Project
reads thus;
“10. The question related to
Clarification III was dealt with in
paragraph 7 of the said order. It is
pointed out by Mr. Gupta that the
Tungabhadra Board mentioned in
paragraph 2.1 of the said order was
36
not in control of the Rajolibanda
Diversion Canal. It seems that this
may be through oversight or due to
absence of specific information being
made available to this Tribunal. It
may be a case that this part of the
river being in the mid stream may not
be within the control of the
Tungabhadra Board, though, however,
the release of water for the Diversion
Canal is regulated by the said Board,
but then it would make no difference
because of the reasoning given in
paragraph 7.1 of the said order. The
Hydel Power Scheme, as it appears at
the moment, for diversion of water to
the Hydel Power Canal at Rajolibanda,
proposes to utilize electronic
sensors, which would not operate until
the level of water is 15 cm above he
anicut. The depth of the sill level of
Rajolibanda Diversion Canal being
1082 ft. compared to the crest level
of the anicut at 1090 ft. is
sufficient at the moment to divert
sufficient water in Rajolibanda
Diversion Canal for the purpose and
object it was conceived and
constructed to enable AP to receive
major part of the water through
Rajolibanda Diversion Canal. Even if
the sill level of the Hydel Power
Canal is at 1083 ft., it will not
operate until the water level is 15 cm
above 1090 ft. If it is so from the
argument made by Mr. Holla, it does
not seem that there will be any effect
on the diversion of water in
Rajolibanda Diversion Canal. If the
water level is 15 cm above he anicut,
then there will be sufficient water to
cater both to Rajolibanda Diversion
Canal and the Hydel Power Canal. If it
37
is up to 15 cm; no water will flow to
the Hydel Power Canal but if it is
above 15 cm, then water would have
gone directly to the mainstream and it
would be so going both over the anicut
and through the Hydel Power Canal
since this diversion joins Krishna
ultimately downstream the anicut.
10.1. It is apprehended by Andhra
Pradesh that the electronic sensors
may not operate properly. Mr. Holla
stated that it would take another two
years to make the Hydel Power Canal
functional. Therefore, at the moment
there could be no such apprehension.
It is in the womb of the future. Mr.
Gupta contended that in such a case
either this Tribunal should appoint an
‘Authority’ to inspect the
installation of the electronic
sensors, and its functioning and
functionality after it is installed or
there may be an option given to AP to
depute its officers to inspect either
alone or jointly with the officers of
Karnataka, both at installation and at
the functioning and functionality
after installation of the sensors. We
think that, this could be considered
after the sensors are installed and
become functional, provided any
difficulty is actually felt in its
operation.
10.2. The scheme as proposed does not
seem to be contrary to the Bachawat
Award; inasmuch as no water is
utilized for operating a hydel project
and it was rightly found by this
Tribunal that at this prima facie
stage there seems to be nothing before
this Tribunal to conclude that the
38
proposed diversion would enable
Karnataka to utilize the Tungabhadra
waters inconsistent with the Bachawat
Award. However, we have also observed
that in case power could be generated
without affecting the existing
irrigation system, then we found no
reason to interfere at this stage, on
the basis of the information and the
materials placed before this Tribunal
by the respective parties. As such, we
do not think that there is any
necessity of Clarification-III as
contended by Mr. Gupta. That apart,
the right of Karnataka and that of AP
are well protected in the said order
in paragraph 9 as pointed out
earlier”.
51. From the above observations also, it
is clear that the Tribunal is mindful of the
controversy and the issues raised relating to
Power Project. The matter is very much before
the Tribunal. It has also considered various
applications and passed orders from time to
time. And for that reason also, the present
petition is liable to be dismissed.
52. Before parting with the matter,
however, we are constrained to make one
observation at this stage. The State of Andhra
Pradesh has filed its counter affidavit in this
39
matter on January 31, 2006. Before that date,
the Tribunal had already been constituted under
the Chairmanship of Hon’ble Mr. Justice Brijesh
Kumar, retired Judge of this Court. The said
fact has been duly mentioned in the affidavit-
in-reply. Interim Application No. 8 of 2006
(for interim relief) and Interim Application
No. 28 of 2006 (for clarification) were of
course subsequent development to the filing of
the affidavit. But both the applications had
been disposed of on November 15, 2006 and on
April 27, 2007 respectively. The present writ-
petition was heard by us in April, 2008 i.e.
after substantial period of disposal of both
the applications. We have heard learned counsel
for the State of Andhra Pradesh. No reference
whatsoever was made on behalf of the State
either to the Interim Applications or to the
orders passed thereon. The contesting
respondents referred to those applications and
the orders of the Tribunal. Respondent No. 3
is ‘State’ and a public authority. This Court,
40
therefore, obviously expects from such
authority to place all the facts before this
Court so as to enable the Court to consider
them and to take an appropriate decision in
accordance with law. In our considered
opinion, the third respondent – State of Andhra
Pradesh, in fairness, ought to have placed all
facts subsequent to filing of the counter
affidavit when the matter was heard by this
Court. The State, however, failed to do so.
But since on other grounds also, we are of the
view that the present petition under Article 32
of the Constitution is not maintainable and is
liable to be dismissed, no further action is
called for.
53. For the foregoing reasons, the writ
petition is dismissed as not maintainable. On
the facts and in the circumstances of the case,
however, there shall be no order as to costs.
………………………………………………J.
(C.K. THAKKER)
41
NEW DELHI, ……………………………………………… J.
JULY 10, 2008. (D.K. JAIN)