THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT PETITION No.5931 of 2015
ORDER: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The petitioner before this Court has filed this writ
petition stating that the water of Godavari river is being
pumped into Krishna river. Meaning thereby, there is
certainly water dispute in respect of river Krishna and
river Godavari and it is an interstate water dispute.
A Tribunal has already been constituted in the
matter in the year 2004 which is being presided over by
Hon'ble Mr. Justice Brijesh Kumar (Former Judge of the
Hon'ble Supreme Court) in respect of such interstate
water disputes.
The Hon'ble Supreme Court in the case of Atma
Linga Reddy and others v. Union of India1 has dealt
with the interstate water disputes. The relevant
paragraphs in the said judgment are reproduced as
under:-
"38. 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 33 of
1956. The Founding Fathers of the Constitution were aware and
conscious of sensitive nature of inter-State disputes relating to
1
(2008) 7 SCC 788
2
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, 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.
39. The provisions of Act 33 of 1956 are also relevant and
pertinent. Clause (c) of Section 2 defines:
"2. (c) '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 or the
implementation of such agreement; or
(iii) the levy of any water rate in contravention of the
prohibition contained in Section 7."
40. Section 3 of the Act provides for "Complaints by State
Governments as to water disputes". It runs as under:
"3. Complaints by State Governments as to water
disputes.--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 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
(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."
41. 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 is likely to be affected. To us,
therefore, it is abundantly clear that such a dispute is covered by
3
Article 262 of the Constitution and should be dealt with in
accordance with the provisions of Act 33 of 1956 and it cannot be
challenged in any court including this Court.
...
52. From the relevant provisions of the Constitution, Act 33 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.
...
55. Thus, the question of construction of mini hydel project, challenged in the present 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 IA No. 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 15-11-2006.
...
58. 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 27-4- 2007. The relevant portion relating to mini hydel power project reads thus:
"10. The question relating to Clarification III was dealt with in para 7 of the said order. It is pointed out by Mr Gupta that the Tungabhadra Board mentioned in para 2.1 of the said order was 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 midstream 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 para 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 utilise electronic sensors, which would not operate until the level of water is 15 cm above the 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 A.P. 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 the anicut, then there will be sufficient water to cater both to Rajolibanda Diversion Canal 4 and the hydel power canal. If it is up to 15 cm; no water will flow to the hydel power canal but if it is above 15 cm, then water would go 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 A.P. 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 utilised 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 proposed diversion would enable Karnataka to utilise 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 find 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 A.P. are well protected in the said order in para 9 as pointed out earlier."
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.
...
60. 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 3 is "State" and a public authority. This Court, 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.
561. 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."
In the light of the aforesaid judgment, as it is an interstate water dispute, this Court does not have jurisdiction to decide the issue. The petitioner shall certainly be free to approach the Tribunal.
At this stage, learned Government Advocate has informed this Court that the hearing before the Tribunal in respect of the issue is still going on and therefore, without commenting upon the merits of the case, as the Tribunal is already seized of the matter, the writ petition stands disposed of.
The miscellaneous applications pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
___________________________ SATISH CHANDRA SHARMA, CJ ___________________________ N. TUKARAMJI, J 10.12.2021 vs