Telangana High Court

Torrikonda Srinivas vs The State Of Telangana on 29 March, 2022

Bench: P Naveen Rao, Shameem Akther

           *THE HONOURABLE SRI JUSTICE P.NAVEEN RAO
                               &
          HONOURABLE Dr. JUSTICE SHAMEEM AKTHER

 + WRIT PETITION NOS.30587, 30655 OF 2021; WP (PIL) NO.126
          OF 2021; 5498, 5505, 5512, 5546 OF 2022;

%29.3.2022

WP No. 5498 of 2022
#Varala Sudhakar and 19 others S/o Narsaiah Aged 50 years
 R/o H No 2-77 Uppara Malyala Gangadhara Mandal
 Karimnagar District Telangana

                                                    .....petitioners
                    Vs.

$ The State of Telangana and others
  Rep by the Principal Secretary Department of Revenue Land
  Acquisition T S Secretariat Hyderabad
                                                    ..Respondents

!Counsel for the petitioners    : Sri G Vidyasagar, learned
                                  senior counsel for Sri Sai
                                  Prasen Gundavaram

Counsel for the Respondents     : Additional Advocate General

<Gist :

>Head Note:

? Cases referred:

(2008) 7 SCC 788
(2021) 3 SCC 572
2021 SCC OnLine SC 7
2002 (2) SCC 507
2006 (3) SCC 343
2004 (9) SCC 362
2005(1) ALD 325
AIR 1987 SC 2235
AIR 1089 SC 1972
(2007) 13 SCC 186
(1997) 1 SCC 134
(2017) 3 SCC 362
                                 2



     IN THE HIGH COURT FOR THE STATE OF TELANGANA

                            ********

WRIT PETITION NOS.30587, 30655 OF 2021; WP (PIL) NO.126 OF 2021; 5498, 5505, 5512, 5546 OF 2022;

WP No. 5498 of 2022 Between:

Varala Sudhakar and 19 others S/o Narsaiah Aged 50 years R/o H No 2-77 Uppara Malyala Gangadhara Mandal Karimnagar District Telangana

.....petitioners Vs.

The State of Telangana and others Rep by the Principal Secretary Department of Revenue Land Acquisition T S Secretariat Hyderabad

JUDGMENT PRONOUNCED ON : 29.3.2022

THE HON'BLE SRI JUSTICE P.NAVEEN RAO

1. Whether Reporters of Local Newspapers may : Yes be allowed to see the Judgments ? :


2.    Whether the copies of judgment may be marked :     Yes
      to Law Reporters/Journals                    :


3.    Whether Their Ladyship/Lordship wish to      :     No
      see fair Copy of the Judgment ?              :




            HONOURABLE SRI JUSTICE P.NAVEEN RAO
                                &
           HONOURABLE Dr. JUSTICE SHAMEEM AKTHER

WRIT PETITION NOS.30587, 30655 OF 2021; WP (PIL) NO.126 OF 2021; 5498, 5505, 5512, 5546 OF 2022;

Date: 29.03.2022

WP No. 5498 of 2022 Between:

Varala Sudhakar and 19 others S/o Narsaiah Aged 50 years R/o H No 2-77 Uppara Malyala Gangadhara Mandal Karimnagar District Telangana

.....petitioners Vs.

The State of Telangana and others Rep by the Principal Secretary Department of Revenue Land Acquisition T S Secretariat Hyderabad ... Respondents

This Court made the following:

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE Dr. JUSTICE SHAMEEM AKTHER

WRIT PETITION NOS.30587, 30655 OF 2021; WP (PIL) NO.126 OF 2021; 5498, 5505, 5512, 5546 OF 2022;

COMMON ORDER:

W.P.Nos.30587 and 30655 of 2021 are filed challenging the

notification dated 27.09.2021 issued by the Land Acquisition Officer

under Section 11(1) of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013 (Act 30 of 2013). W.P.Nos.5498, 5512 and 5546 of 2022 are

filed challenging the similar notification dated 07.11.2021. Petitioners

in all these writ petitions are owners of land of various extents in

Uppara Mallial Village, Gangadhara Mandal, Karimnagar District,

Vilasagar village, Boinapalli mandal, Rajanna Sirsilla District and

Kurikyala Village Gangadhara Mandal Karimnagar District

respectively.

2. W.P.(PIL).No.126 of 2021 is filed praying to issue Writ of

Mandamus by declaring the action of the Telangana State in securing

loans, awarding contracts, acquiring lands and allowing the works to

be taken up with public money for creation of additional one TMC per

day drawing of water capacity from river Godavari as part of the

Kaleshwaram Lift Irrigation Project System without necessary

statutory clearances including environmental clearances.

3. In W.P.No.30587 and 30655 of 2021, learned single Judge of

this Court, by order dated 26.11.2021 stayed the notification dated

27.09.2021. Praying to vacate the interim stay, on behalf of

respondent Nos.1, 3, 4 and 5, I.A.No.2 of 2021 is filed in

W.P.No.30587 of 2021. In the meantime, W.P.Nos.5498, 5512 and

5546 of 2022 are filed.

4. We have heard learned senior counsel Sri. G.VidyaSagar,

appearing for counsel for petitioners in W.P.Nos.30587 & 30655 of

2021, 5498, 5512 & 5546 of 2022 and learned counsel Sri

K.S.Murthy, counsel for petitioner in W.P.(PIL).No.126 of 2021,

learned Additional Advocate General for the State Government and

learned Assistant Solicitor General Sri Namavarapu Rajeshwar Rao,

for Central Government.

5. In the combined State of Andhra Pradesh, the then Government

envisaged Lift Irrigation Project to lift water from river Godavari, to

construct reservoirs, canals and pump houses at various locations to

cater to the irrigation and drinking water needs of Telangana. After

formation of the State of Telangana, the Government of Telangana re-

designed the scope of the project now called as Kaleshwaram Lift

Irrigation Project (KLIP). This project was conceived to create new

command area, stabilization of existing command area, supplying

drinking water and water for industrial purposes. According to the

State Government, the Technical Advisory Committee has approved to

draw 195 TMC of water from the river Godavari at Medigadda, 20 TMC

of water from Sripada Yellampally Project, 25 TMC of groundwater,

making a total drawing capacity of 240 TMC. All statutory clearances

were granted. Initially, the State Government proposed to draw only 2

TMC of water per day, to lift 180 TMC in 90 days of the year. In the

year 2019, the State Government has decided to increase the drawing

capacity of the water to 3 TMC per day. These writ petitions are filed

challenging various decisions, actions taken pursuant to the decision

to increase the drawing capacity of water from river Godavari to 3

TMC per day.

6. The challenge to the land acquisition notifications and various

decisions of the State Government is mounted on the ground that the

decision of the Government to draw additional 1 TMC was not

preceded by Detailed Project Report (DPR), Environment Impact

Assessment and the Godavari River Water Board approvals from the

Union of India. It is their pleaded case that on the complaint by

individuals and the Government of State of Andhra Pradesh, Union of

India imposed clear restriction on undertaking any work relating to

increase of 1 TMC including construction of Canals until approvals

are obtained from Godavari River Management Board (GRMB) and to

this extent, notification was issued by Union of India on 15.07.2021. It

is further asserted that the Principal Bench of the National Green

Tribunal, New Delhi, in its order dated 20.10.2020 in Appeal No.20 of

2018 restrained the State Government from undertaking any activity

with reference to expansion of the project to extract 3 TMC of water

per day from river Godavari. In view of these orders, the question of

extraction of additional 1 TMC, construction of additional pump

houses, reservoirs, building canals and laying pipelines for that

purpose does not arise.

7. According to the State Government, KLIP was approved and in

terms thereof, the State can draw 240 TMC of water per year. The

increase of water drawing capacity to 3 TMC per day is part of

approved KLIP. There is no increase in the ayacut. Therefore, there is

no need to a fresh DPR and separate and specific environmental

clearance. It is intended to fill the reservoirs already constructed

having a storage capacity of 147 TMC. Environmental clearance for

the entire project was granted by the Ministry of Environment and

Forests, Government of India on 22.12.2017. Further, Section 10A

inserted in Land Acquisition Act as a State amendment and

notification in terms thereof covers the KLIP. It is further asserted

that even assuming that environmental clearance is required,

environmental or forest clearance is always site specific and therefore,

until site is identified for construction, the issue of making application

for permission for environmental clearance would not arise and,

therefore, acquisition of land is prerequisite.

8. These aspects touch upon the merits of the decision of

Telangana Government to increase per day water drawing capacity

from river Godavari. However, before going into these aspects, it is

necessary to consider the preliminary objection raised by the learned

Additional Advocate General, on maintainability of writ petitions.

9.1. Learned Additional Advocate General raised two preliminary

objections on maintainability of the writ petitions:

9.2. Firstly, according to learned Additional Advocate General,

Section 2(c) of the Act 33 of 1956 defines what is meant to be 'water

dispute' and what is urged in these writ petitions is an inter-state

water dispute,in view of Article 262 of the Constitution of India,

Section 11 of the Interstate River Water Disputes Act, 1956 (Act 33 of

1956) and the judgment of the Hon'ble Supreme Court in Atma Linga

Reddy Vs Union of India1, the writ petitions under Article 226 of the

Constitution of India are non maintainable.

9.3. He would further submit that on an issue concerning drawing of

water from river Godavari, which is an inter-state river individual

inhabitants of a State have no role and no cause to litigate.

(2008) 7 SCC 788

9.4. He would further submit that Part IX of the A.P. Reorganization

Act, 2014 (Act 6 of 2014) deals with Management and Development of

Water Resources. Section 84 of the Act 6 of 2014 contemplated Apex

Council, Section 85 envisages establishment of river water boards and

it is for the Godavari River Management Board and the Apex Council

to deal with all aspects of drawing of water from inter-state river and

as envisaged by Section 84, in case of disputes, matter should be

referred to the Tribunal as per Act 33 of 1956. Therefore, writ petitions

on inter-state river water issues are not maintainable.

9.5. He would further contend that on 17.06.2021, Jal Shakti

Ministry issued orders to TSGENCO, not to release water through

Srisailam Lift Power House. However, on 28.06.2021, Government

issued G.O.R.T.No.34, directing TSGENCO to generate Hydel Power

upto 100% of installed capacity. Challenging G.O.Rt.No.34 dated

28.06.2021, W.P.No.15084 of 2021 is filed. The Division Bench of this

Court held that in view of Article 262 of the Constitution of India, the

writ petition is not maintainable. He has also relied on the decision of

the Division Bench in W.P.No.5931 of 2015.

9.6. Secondly, when acquisition of land is for public purpose, the

writ petition against Section 11(1) notification is not maintainable. The

acquisition of land is to build canal network to draw 1 additional TMC

of water per day, which is for public purpose. The drawing of water is

within the sanctioned limit of 240 TMC of water under the

Kaleshwaram Lift Irrigation Project (KLIP) which has all sanctions

already granted. Therefore, there is no need for a fresh DPR and

environmental clearance. The project is also exempted under Section

10-A of Act 30 of 2013 vide G.O.Ms No. 35 dated 30.6.2017.

9.7. He would submit that even if environmental clearance is

required unless the land is identified, impact assessment cannot be

made. The Government should acquire land and keep it ready. He

relied on Project Implementation Unit Vs. P.V. Krishnamoorthy2.

9.8. He would further submit that even if there is an alleged

ecological damage, it can be remedied as held by the Hon'ble Supreme

Court in Rajeev Suri Vs Delhi Development Authority and others3,

while dealing with the challenge for construction of Central Vista

Project in New Delhi by the Union of India. Therefore, on that ground

building irrigation canals cannot be stopped. He would submit that

issues of environmental preservation and economic development have

to be balanced.

9.9. He would submit that the State is entitled to draw 240 TMC of

water in 90 days. Government intends to draw this water in 60 days

by increasing to 3 TMC per day. The Government has not violated

National Green Tribunal (NGT) Order. If some one has a grievance on

(2021) 3 SCC 572

2021 SCC OnLine SC 7

violating NGT Order, he should go before NGT but cannot file a writ

petition.

10.1. Learned senior counsel Sri G.Vidya Sagar made extensive

submissions on maintainability of writ petitions.

10.2. According to the learned senior counsel, Article 262 of the

Constitution of India enables the Indian Parliament to make law

dealing with irrigation projects on rivers, which cover more than one

State. This Article does not create a bar to avail remedy under Article

226 of the Constitution of India. From the reading of Sections 2 and

11 of the Act, 33 of 1956, it is apparent that the Act has limited

jurisdiction and only when the matter is referred to Tribunal on any

irrigation project, bar of jurisdiction of High Court and the Supreme

Court would apply, but not otherwise. Articles 3 and 4 of the

Constitution of India deal with formation of new States and vests

power in the Indian Parliament to deal with various aspects arising

out of formation of new States. The Act 6 of 2014 deals with all

aspects of issues arising out of the formation of State of Telangana. It

is a special enactment and shall prevail notwithstanding any provision

in any other enactment including act 33 of 1956. Part-IX of the Act

deals with irrigation projects. Section 84 of the Act, 2014, creates

Apex Council, which in turn required to monitor the functioning of the

River Water Management Boards that are required to be established in

accordance with Section 85 of the Act. Government of India has to

notify the River Water Boards for both Krishna and Godavari Rivers

and specify the functioning of the Boards.

10.3. From the scheme of the Act, it is apparent that no redressal

mechanism is provided to individual citizen on any grievance

concerning irrigation activities. Therefore, if individual has any

grievance on any decision of the Government regarding utilization of

water from River Godavari, which impacts the right of the individual,

the remedy available to him is only under Article 226 of the

Constitution of India. He would submit that on account of decision of

the Government to increase drawing capacity of water per day to 3

TMC from existing 2 TMC, the right to own and enjoy land of

petitioners is adversely affected and, therefore they are entitled to

challenge the Government decision.

10.4. According to the learned senior counsel, in the ordinary

course, acquisition of land is governed by the provisions of the Land

Acquisition Act and the mechanism created therein is to be availed by

any person affected by the acquisition. But in the instant cases, the

decision to acquire land itself is vitiating the statutory mandate and,

therefore, petitioners are entitled to challenge the notification issued

under Section 11 (1) of the Act by instituting the writ petitions under

Article 226 of the Constitution of India.

10.5. According to the learned senior counsel, firstly Government of

India restrained the State Government from undertaking any

construction activity including building new canals before submitting

the DPR and obtaining clearance. Admittedly, no DPR is submitted

and no clearance is obtained from GRMB. Without submitting DPR

and obtaining clearance, no construction activity can be taken up.

Further, increasing the water capacity would also have a greater

impact on environment and, therefore, environmental clearance is also

required before the State undertakes laying of new canals. In the writ

petition under Article 226 of the Constitution of India, this Court can

go into the aspect of whether the decision of the Government to

acquire land is vitiated on account of non-compliance of the statutory

requirements to draw additional water from River Godavari.

10.6. He would further submit that the dispute raised by the

petitioner is not inter-state water dispute. In the instant cases, the

issue does not concern whether the State of Telangana is entitled to

draw more than 2 TMC of water per day from River Godavari. The

question raised is can the State Government decide to draw one

additional TMC of water per day and undertake creation of additional

infrastructure without permissions and environmental clearances.

This aspect does not concern inter-state water dispute. He would

therefore submit that the writ petitions are maintainable. In support

of this contention, learned senior counsel placed reliance on the

decisions of Hon'ble Supreme Court reported in State of Haryana vs.

State of Punjab and another4, in Mullaperiyar Environmental

Protection Forum vs. Union of India and others5, in N.D.Jayal and

another vs. Union of India and others6 and the decision of this

Court reported in Vedire Venkata Reddy and others vs. Union of

India and others7.

10.7. He would submit that the stand of the learned Additional

Advocate General on DPR is contrary to correspondence entered into

between the State Government and Central Government. He would

submit that submission of learned Additional Advocate General goes

against intendment of the State Government. By referring to the order

of the National Green Tribunal in O.A.No.71 of 2020, he would submit

that on identical issue, the Telangana Government opposed the

decision of the A.P. Government to increase water drawing capacity in

Pothireddipadu Irrigation Project without a DPR and without statutory

clearances.

10.8. Referring to the decision relied upon by the Additional Advocate

General in the case reported in P.V.Krishnamoorthy (supra), he

would submit that building a National Highway is different from

irrigation project.

2002 (2) SCC 507

2006 (3) SCC 343

2004 (9) SCC 362

2005(1) ALD 325

10.9. Learned senior counsel would submit that as can be seen from

paragraphs-6 and 8 of the counter-affidavit filed by the Central

Government in W.P.No.27153 of 2021, it is apparent that DPR is

required, but no such report is submitted to Government of India.

Therefore, it is not permissible to undertake construction activity

increasing the irrigation infrastructure facilities without submitting

DPR, obtaining permissions including environmental clearance.

11.1. According to the learned counsel Sri K.S.Murthy, letter of

Government of India dated 22.12.2017 granting environmental

clearance only mentions 180 TMC. Paragraph-6 of the third

respondent counter-affidavit mentions drawing of water capacity to

240 TMC. He would therefore submit that as against the sanction

accorded earlier, Government is now planning to increase the water

drawing capacity to 240 TMC and, therefore, it amounts to

enhancement of drawing of water and, therefore, the order of NGT has

to be complied. According to the learned counsel, whenever there is

enhancement, environmental clearance is mandatory. In the order of

National Green Tribunal in M.A.No.31 of 2020, it emphasizes previous

order passed by the Tribunal, which order mandated obtaining

environmental clearance.

11.2. Learned counsel placed reliance on clause-(f) of Government of

India notification dated 15.07.2021 to emphasize that the Government

of India prohibited construction activity concerning drawing of water

from River Godavari and, therefore, the State Government cannot

undertake construction of canals. He would submit that in no

circumstance State Government can violate the orders of the Central

Government.

11.3. He placed reliance on the decision of Hon'ble Supreme Court

reported in Jagtar Singh and others vs. State of Punjab and others:

[AIR 1972 SC 586 (Paragraph-5)]. He also referred to G.O.Rt.No.346

Irrigation and CAD (Projects-IV) Department, dated 29.08.2019, filed

at page No.59, which talks about previous commitments.

11.4. Learned counsel also fairly submits that petitioners are not

objecting to undertake the process of land acquisition and it

may go on, but no award should be passed and no construction

activity should be taken up and land should not be put to use for

construction of canals until environmental clearance is obtained.

12. Learned Assistant Solicitor General read out the contents of

paragraph-5 of the counter-affidavit in W.P.No.27153 of 2021 and

submitted that unless appropriate clearances are obtained by the

State Government, no construction activity can be taken up for

drawing additional one TMC of water from River Godavari.

13.1. In reply, learned Additional Advocate General clarified that

order of the National Green Tribunal in O.A.No.71 of 2020 does not

apply to the facts of the instant cases. According to the learned

Additional Advocate General, State of Andhra Pradesh wanted to cover

additional Ayacut and whenever additional Ayacutis sought to be

covered in an irrigation project, approvals are needed and, therefore,

the Government raised objection before the Green Tribunal. On the

issue on hand, the Government is not creating any additional ayacut.

It only wants to draw one additional TMC of water per day which is

within the overall drawing capacity and is part of KLIP, that has

secured all necessary permissions. The decision to draw additional

one TMC of water per day is in the larger public interest as in a year if

there is less rain fall, the overall period to draw water gets reduced

and by drawing only 2 TMC per day, the Government may not be able

to utilize water allocated to the State causing water shortage and may

have cascading affect to end users. The State has constructed

reservoirs which have a storing capacity of 147 TMC of water. He

would therefore submit that new DPR and environmental clearance

are not required. The expansion exercise undertaken is only to draw

additional water within the permissible water allocated to the State.

13.2. Learned Additional Advocate General clarified that in all, State

is authorized to draw 225 TMC of water from various sources in river

Godavari belt. The Government is not crossing this limit. What is

envisaged now is to create infrastructure to draw one additional TMC

per day so that in a given year within a short period more water can

be drawn.

14. In a nutshell, while petitioners assert that without a fresh DPR

and environmental clearance Telangana Government cannot draw one

additional TMC of water per day from River Godavari and, therefore,

process to acquire land to build canals, take administrative decisions

to build canals and other infrastructure is ex facie illegal, the

Telangana Government asserts that the State is authorized to draw

225 TMC of water per year from River Godavari, the State has

requisite approvals and environmental clearances for KLIP and

drawing one additional TMC of water per day is part of the project and

does not require fresh approvals/clearances.

15. In the facts of these cases and based on the pleadings and

submissions made by learned counsel, following issues arise for

consideration :

(1) Whether the Writ Petitions are maintainable ?

(2) Is it permissible for the Government to initiate land acquisition process without securing statutory permissions/clearances to draw one additional TMC of water per day from River Godavari ?

16. Article 226 of the Constitution of India is couched in wider

terms. It not only vests power in the High Court to issue prerogative

writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-

warranto and Certiorari or any of them, but also vests power to issue

directions, orders to enforce right vested in a person, be it by Part-III

of the Constitution of India or in any other manner. It plays the role

of a sentry to guard the rights of people and prevent from being

abrogated/impinged/ hindered in any manner by persons in power or

authority.

17. "The Founding Fathers placed no limitation or fetters on the power

of the High Court under Article 226 of the Constitution except self-

imposed limitations. The arm of the Court is long enough to reach

injustice wherever it is found. The Court as sentinel on the qui vive is to

mete out justice in given facts." [Paragraph 59, Air India Statutory Corpn. V.

United LabourUnion : (1997) 9 SCC 377 ].In Rohtas Industries Ltd. v. Staff

Union : (1976) 2 SCC 82], Justice Krishna Iyer said, "The mentor of law is

justice and a potent drug should be judiciously administered. Speaking in

critical retrospect and portentous prospect, the writ power has, by and large,

been the people's sentinel on the qui vive and to cut back on or liquidate that

power may cast a peril to human rights." [Paragraph-9].

18. Though the Constitution makers have not specified the contours

of its scope and extent, over a period of time law has evolved to

broadly guide the writ Court to deal with a particular situation. By

now, the parameters are settled and well laid down. Proverbial,

'Lakshmanarekha' is drawn and warned not to cross as consequences

can be disastrous to the polity at large, if Court assumes unguided

power.

19. From this touchstone on scope of Article 226 of the Constitution

of India, the objection on maintainability of the writ petitions requires

consideration.

20. The Constitution makers have given to India federal form of

governance. Each State is independent to deal with its internal affairs

within the broad contours of the Constitution of India. The States are

formed broadly based on language spoken by people in a region,

geographical location, historical background of a region, conversion of

princely States, etc. For millions of Indians major source of

sustenance has been agriculture. By very nature agricultural activity

requires abundance of water and water is becoming scarce. Several

parts of the country reel under drought conditions and people have to

walk miles to secure drinking water. Constitution makers visualized

scope for inter-state rivalry on use of water, more so from rivers

flowing through more than one State. Inter-state water disputes

cannot be seen as routine disputes, which can be adjudicated like any

other litigation. It will have wider ramifications. Furthermore, Courts

in India from grass root level to High Court have territorial

jurisdictional limitations to adjudicate disputes placed before them.

On an inter-state water dispute there can be litigation in more than

one Court. A dispute concerning drawing of water from river Godavari,

which passes through States of Maharashtra, Telangana and Andhra

Pradesh, litigation can be instituted in any one or more of the Courts

in these three States. This can lead to more complications not

conducive to federal concept.

21. With the foresight and vision in abundance, the Constitution

makers have made a unique provision in Article 262 of the

Constitution of India. It speaks about adjudication of disputes on

water concerning inter-state rivers. In the process of creating a

unique mechanism, it employees non-obstante clause and empowers

the Parliament to make law to provide for adjudication of a dispute or

complaint with respect to use, distribution, control of the waters in

any inter-state river and to exclude the jurisdiction of Supreme Court

and any other Court in India to deal with such dispute or complaint.

Thus, if there is a dispute or complaint on use, distribution or control

of water concerning inter-state-river, it needs to be adjudicated by a

special mechanism and not by regular Courts including the Supreme

Court and the High Court.

22. In exercise of power vested in the Indian Parliament, Act 33 of

1956 is made creating mechanism to resolve disputes/to deal with

complaints on water concerning inter-state rivers and excluding the

jurisdiction of all Courts in India.

23. From a cumulative reading of Article 2628 of the Constitution of

India; Section 2(c)9 and Sections 510 and 1111 of the Act 33 of 1956, it

Article 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).

Sec.2. Definitions:

(a) and (b) xxx

is apparent that if there is a water dispute or complaint on use,

distribution or control of water of inter-state river or interpretation of

terms of any agreement, the jurisdiction of the Hon'ble Supreme Court

and all other Courts stand excluded. Therefore, on such dispute/

complaint, a writ petition under Article 226 of the Constitution of

India is not maintainable before this Court.

24. This invariably requires consideration whether what is urged by

petitioners would amount to water dispute or complaint. If what is

urged in these writ petitions is a water dispute or complaint, the writ

petitions are liable to be dismissed.

(c) "water dispute" means 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.

Sec.5. Adjudication of water disputes. (1) When a Tribunal has been constituted under section 4, the Central Government shall, subject to the prohibition contained in section 8, refer the water disputes and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication.(2) The Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the mattes referred to it within a period of three years:

Provided that if the decision cannot be given for unavoidable reasons, within a period of three years, the Central Government may extend the period for a further period not exceeding two years.

(3) If,upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly:

Provided that the period of one year within which the Tribunal may forward its report to the Central Government may be extended by the Central Government, for such further period as it considers necessary.] (4) If the members of the Tribunal differ in opinion on any point, the point shall be decided according to the opinion of the majority.

Section 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 in respect of any water dispute which may be referred to a Tribunal under this Act.

25. Before looking into statutory scheme and law on the subject, it

is necessary to consider the pleadings.

26. To recapitulate in brief, the Telangana State asserts that it is

authorized to draw 225 TMC of water from River Godavari. The State

Government launched gigantic lift irrigation project, known as KLIP, to

lift water from river Godavari and store it in reservoirs constructed at

various places. It claims that the project has the requisite

permissions/approvals. As part of this project initially plans were

made to lift 2 TMC of water per day and accordingly, canals were built

and other infrastructure was created. According to State Government,

normally, water can be lifted in a maximum period of 90 days in a

year during rainy season. Therefore, the present arrangement enables

State to lift 180 TMC of water. However, on review of rainfall in

catchment areas of River Godavari over a period of time and

availability of water, the State Government assessed that if there is

less rain fall in a year, the period available to lift water gets reduced

depriving the State to utilize its full permissible capacity. According to

the State Government, if water drawing capacity is increased, in a

shorter period it can draw more water, within the permissible drawing

capacity. It assesses that 60 days in a year to lift water is ideal to

meet any contingency. It, therefore, planned to increase daily lifting of

water capacity to 3 TMC. It asserts that the reservoirs already

constructed have the capacity to store water. The State Government

asserts that to lift one additional TMC of water no fresh DPRs and/or

environmental clearances are required.

27. This stand of Telangana Government is disputed by several

persons in their individual capacity and the Andhra Pradesh

Government. According to the petitioners, the State of Telangana can

not draw one additional TMC of water per day without a DPR,

approval by GRMB and also environmental clearance. As a corollary,

the Telangana Government cannot build canal network intended for

the purpose of drawing additional TMC. Thus, the impugned land

acquisition notification is ex facie vitiated.

28. In paragraph-7 of the affidavit filed in support of the Writ

Petition No.5498 of 2022, petitioners also assert that several

interested persons, land owners and the State of Andhra Pradesh

lodged complaints against the decision of Government of Telangana to

draw one additional TMC of water per day. The petitioners placed

heavy reliance on two letters written by the Minister for Jal Shakti,

Union of India to contend that land acquisition is illegal unless

permissions are accorded to draw one additional TMC of water per

day. The two letters written by the Minister for Jal Shakti, Union of

India, also points out to the dispute raised by the Government of

Andhra Pradesh in their letter dated 14.05.2020.

29. In the two letters written by Hon'ble Minister for Jal Shakti,

Union of India, dated 07.08.2020 and dated 11.12.2020 he informs

the Government of Telangana that in the letter dated 14.05.2020 the

Government of Andhra Pradesh raised objection on seven new projects

taken up by the Government of Telangana in Godavari basin which

includes Kaleshwaram Lift Irrigation Scheme (KLIS) and raising the

drawing of water per day to 3 TMC. In his letter, dated 07.08.2020,

the Hon'ble Minister stated, "You are aware that the DPR of

Kaleshwaram LIS was accepted by the Advisory Committee of Ministry

in June 2018. However, GOTs has subsequently changed the scope

and gone for enhancement of the lining of Godavari waters from 2 TMC

per day to 3 TMC per day without submitting the DPR to GRMB/CWC

for appraisal. Any change in scope or cost of the project need to be

appraised again."

30. Paragraph-5 of the letter of Hon'ble Minister for Jal Shakti,

Union of India, dated 11.12.2020 reads as under:

"You have mentioned about the objections raised by AP about ongoing projects of Telangana on Godavari River. Your view is that the seven projects taken up by the Telangana on River godavari are not new projects and were started in the erstwhile AP State. The location of few of these projects was changed to avoid large scale submergence and also few of these projects got redesigned for better performance. You also mentioned that even Ministry of Jal Shakti, GoI has given hydrology clearance to Kaleswaram (2 TMC component) project and the 3rd TMC component of Kaleswaram project was added by you keeping in view the availability of water at that site.

In this regard, I would like to remind you that in the letter dated 07.08.2020 written by me and addressed to you, it was stated that the 2 TMC component of Kaleswaram project was accepted by the Advisory Committee of DoWR, RD&GR, Ministry of Jal Shakti, goI in June 2018, but subsequently the scope of this project has been changed by your state by adding the 3rd TMC component unit. I have also stated in that letter that any such change in the project scope requires that statutory clearance are to be taken from central government like hydrology, inter-state, investment and environment etc. After such change in scope, this project has to be appraised by

GRMB/CWC which is mandatory as per APRA 2014. it was also stated in that letter that you should not proceed with these seven projects objected to by AP until the DPRs of these projects are appraised by GRMB/CWC and sanctioned by the Apex Council. This was again discussed by us in the 2nd Apex Council meeting held on06.10.2020 and you have agreed to submit the DPRs of these projects to GRMB for their appraisal. So once again it is being asked that you should not proceed with these seven projects (3rd TMC component of Kaleswaram LIS, Sitarama LIS, GLIS Phase-III, Tupakulagudem project, Telangana Drinking Water Supply Project Barrages on Lower Penganga River and Ramappa lake to Pakhal lake diversion) until the mandatory appraisal is done by GRMB."

31. Heavy reliance is placed by the learned senior counsel for the

petitioners on the decision of Division Bench of this Court in Vedire

Venkata Reddy (supra) to contend what is urged in the writ petitions is

not a water dispute concerning inter-state river and that the Writ

Petitions are maintainable. In Vedire Venkata Reddy, petitioners

belong to various sections of society, including retired Engineer-in-

Chief of A.P.TRANSCO and the petitioners 3 to 6 and others stated to

have formed an association called 'Pulichintala Project Porata

Sambhavana Committee'. It appears, the said association included

affected farmers of Guntur and Nalgonda districts whose lands were

likely to be submerged if the project was allowed to commence. It was

contended that the project ought not to commence without obtaining

environmental clearance. Objection was raised on the maintainability

of the writ petition. It was urged that what was contended would

amount to raising water dispute and in view of the provisions in

Article 262 of the Constitution of India read with Act 33 of 1956, writ

petition was not maintainable. This objection to maintainability of

writ petition was rejected holding that the issue raised was not an

inter-state water dispute and that what was objected by the petitioner

was construction of project at the proposed site without environmental

clearance.

32. The scope and contours of water disputes was considered by

Hon'ble Supreme Court in several decisions. It is suffice to note two

land mark decisions in Atma Linga Reddy (supra) and State of

Karnataka v. State of T.N.12.

33. In Atma Linga Reddy (supra), petitioners therein were residents

of Mahaboobnagar District. In a writ petition filed under Article 32 of

the Constitution of India, they were complaining that constructing

mini hydro power project at Rajolibanda Diversion Scheme (RDS)

would impact smooth flow of water in RDS canal to the extent of full

allocated water to State of Andhra Pradesh and prayed to restrain the

State of Karnataka and the Contractor from going ahead with the said

project. It was contended that said decision of the Karnataka

Government was without approvals. The writ petition was opposed by

the Karnataka Government on two grounds. Firstly, Article 262 and

Section 11 of the Act 33 of 1956 bars jurisdiction of the Hon'ble

Supreme Court and secondly, petitioners have no locus standi to

agitate water disputes or matters connected therewith or related to

such dispute. It was contended that only the concerned state can file

a suit.

(2017) 3 SCC 362

34.1. The Hon'ble Supreme Court analyzed in depth various

provisions of the Constitution and the Act 33 of 1956. Having regard

to submissions made herein, it is but necessary to note the opinion

expressed by the Hon'ble Supreme Court. Relevant paragraphs read

as under:

"33. In the light of the scheme as envisaged by the makers of the Constitution as also by Parliament under Act 33 of 1956 in connection with water disputes between 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).

34. It is also pertinent to note that clause (2) of Article 262 contains a 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 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).

35. 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 T.N. Cauvery Etc. 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.

37. If this Court holds that a petition is not maintainable in this Court, they have no remedy for the enforcement of their right recognised by the Constitution and guaranteed by Article 32 enshrined in Part III of the Constitution. It would violate basic philosophy of the rule of law reflected in the well-known maxim ubi jus ibiremedium (wherever there is right, there is remedy). It was, therefore, submitted that the present petition is maintainable and should be decided on merits.

xxx

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 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.

xxxx

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 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.

xxxx

45. 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 States has no force and we express our inability to agree with the learned counsel.

46. 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 a 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 is likely to be affected. In our considered opinion, therefore, the present petition under Article 32 is not maintainable.

xxxx

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."

(Emphasis supplied)

35. In State of Karnataka (supra), Hon'ble Supreme Court held as

under :

"27. We have referred to the aforesaid authority to show how the Constitution has conferred the power on this Court under Article 32 to protect the fundamental rights of the citizens. It would not be out of place to mention here that various articles occurring in Part III of the Constitution have been bestowed the extended meaning through interpretative process to fructify the constitutional obligations because the provisions in the Constitution have to be understood and interpreted keeping in view the social progress, economic growth of environment of law and the global development of law. Protection of fundamental rights as a concept cannot remain static. They grow by encompassing a rainbow of views that advocate new rights that the globe perceives. But the authority conferred under Article 32 has its limitations when the lis under Article 262

emerges.It is interesting to note that the Constitution has not provided machinery for resolution of the disputes in the Constitution but has empowered Parliament to make laws to provide to exclude the power of the Supreme Court or any other court with regard to jurisdiction in respect of complaints or disputes that find mention in Article 262(1). The 1956 Act bars the exercise of jurisdiction under Article 32 of the Constitution. In spite of the same, there is certain scope for exercise of jurisdiction. In this context, we may refer to certain authorities.

xxx

53. The crux of the matter is whether the interpretation placed by this Court on the aforesaid decisions lays down the ratio that Article 262 read with Section 11 of the 1956 Act ousts the jurisdiction of Article 136 of the Constitution. On an anxious perusal and studied scrutiny of the aforesaid authorities, we find that what has been ousted is the jurisdiction of this Court to take cognizance 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. The Constitution Bench in Cauvery Water Disputes Tribunal, In re [Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2)] has opined that this Court cannot take cognizance of the original complaint or dispute relating to what has been mentioned in Article 262. Article 262(2) empowers Parliament, by law, to 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). Thus, the legislation is relatable to the disputes which have been referred to in Article 262(1).In this regard, we may refer to Section 2(c) of the 1956 Act that defines "water dispute". It reads as follows:

"2. (c) "water dispute" means 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."

xxxx

55. Section 5 provides for adjudication of water disputes. Section 11 stipulates that neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a tribunal under the 1956 Act. The Tribunal is constituted when a request is made under Section 3 from any State Government in respect of any water dispute. Section 4 of the 1956 Act provides that the Central Government shall constitute a Water Disputes Tribunal if it is of the opinion that the water dispute cannot be settled by negotiations. The 1956 Act, as we perceive, is in consonance with Article 262 which empowers Parliament to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint but the same has to pertain to Article 262(1).

56. Thus, the bar on the jurisdiction of this Court has to be in accord with the language employed in Article 262(1). Section 11 bars the jurisdiction of this Court pertaining to original dispute or complaint. The submission of MrRohatgi is that dispute or complaint as mentioned in Article 262 and Section 11 of the 1956 Act not only covers the dispute before the Tribunal but also encompasses any appeal by special leave because it still has the characteristics of a dispute. On a first blush, the aforesaid submission may look attractive but on a keener scrutiny, we are disposed to think, it does not deserve acceptance. The language used in Article 262(1) and Section 11 relate to a water dispute or complaint. It pertains to a dispute or a complaint at the pre-adjudicatory stage. A complaint by the State Government is in a different realm altogether. It is meant to invite the attention of the Central Government pertaining to the fact that a water dispute had arisen or is likely to arise and it needs to be addressed by constituting a tribunal.Once a water dispute is adjudicated, it is extremely difficult to put it in the compartment of "any water dispute". After the adjudication, one of the States or both the States may have a grievance but a contention cannot be advanced by them or by the Union of India that the controversy is still at the stage of dispute that has been intended to be covered either under Article 262(1) of the Constitution or under the scheme of the 1956 Act and, therefore, the jurisdiction of this Court stands excluded. Needless to emphasise, it has to pertain to the original dispute or original complaint and that is why, the Constitution Bench in Cauvery Water Disputes Tribunal, In re [Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2)] had held that this Court cannot take cognizance of an original dispute or complaint. The Constitution Bench analysing the scheme of the 1956 Act has opined that the Tribunal had the jurisdiction to grant interim relief. It has also been categorically ruled that this Court cannot take cognizance of original dispute. The majority in State of T.N. v. State of Karnataka [State of T.N. v. State of Karnataka, 1991 Supp (1) SCC 240] has opined that this Court has jurisdiction to decide the parameters, scope, authority and jurisdiction of the Tribunal. It has been further held that it is the judiciary i.e. the courts alone that have the function of determining authoritatively the meaning of a statutory enactment and to lay down the frontiers of jurisdiction of any body or tribunal constituted under the statute.

xxxxx

69. Having stated about the extent of jurisdiction of this Court under Article 136 of the Constitution and upon taking note of the precedents pertaining to sphere of Article 262 read with Section 11 of the 1956 Act, we may state that what is excluded under the Constitution is the dispute or complaint. The term "dispute", as has been held in Gujarat State Coop. Land Development Bank Ltd. v. P.R. Mankad [Gujarat State Coop. Land Development Bank Ltd. v. P.R. Mankad, (1979) 3 SCC 123 : 1979 SCC (L&S) 225] , means a controversy having both positive and negative aspects. In Canara Bank v. NTPC [Canara Bank v. NTPC, (2001) 1 SCC 43] , the term "dispute" has been interpreted to mean that there is a postulation of an assertion of a claim by one party and denial by the other. The term "dispute" may be given a broad meaning or a narrow meaning and the 1956 Act gives it a broad meaning, as has been held by this Court."

(Emphasis supplied)

36. At this stage, it is necessary to consider two recent decisions of

this Court, which have a bearing on these cases.

36.1. W.P.No.5931 of 2015 is filed praying to issue writ of

mandamus declaring the proposed action of the State of Andhra

Pradesh, the Chief Engineer, Interstate Water Resources Department,

Government of Andhra Pradesh and the Engineer-in-Chief, Indira

Sagar Polavaram Multipurpose Project, as per the administrative

approval of the State of Andhra Pradesh vide G.O.Ms.No.1 Irrigation

and CAD (Proj.I.A2) Department, dated 01.01.2015 for diversion of

water from River Godavari to River Krishna through Polavaram

Project Right Main Canal for domestic and industrial use as a part of

water grid, amounts to arbitrary, illegal exercise of power and violate

the provisions of the Andhra Pradesh Re-organization Act, 2014 (Act 6

of 2014). It is contended that said decision is in violation of the

provisions of the Act 6 of 2014, it was without environmental

clearance and clearance from the Forest Department and it would

adversely affect the lower riparian rights of the Godavari Delta farmers

including the petitioner.

36.2. Holding that what is urged in the writ petition and prayed is

inter se water dispute in respect of River Krishna and River Godavari

and the Tribunal has been constituted in the year 2014 and following

the decision of the Hon'ble Supreme Court in Atma Linga Reddy

(supra), the Division Bench of this Court by order dated 10.12.2021

held that High Court has no jurisdiction to decide the issue.

36.3. W.P.No.15084 of 2021 is filed to issue writ of mandamus by

declaring G.O.Rt.No.34 Energy Power-II Department dated 28.06.2021

as illegal, arbitrary, unjust and contrary to the provisions of A.P.

Reorganization Act, 2014 and without jurisdiction. It is further prayed

to direct the respondents 3 and 4 in the writ petition to adhere to

KWDTI award and mutual agreement for the purpose of drawing water

for power needs or irrigation needs. Holding that as what is urged is

inter se water dispute, writ petition is not maintainable, it was

disposed of by order dated 09.02.2022.

37. In view of the decision in Atma Linga Reddy (supra), and State

of Karnataka (supra) and other decisions of Hon'ble Supreme Court

and two recent decisions of this court, referred to above, the view

expressed by the Division Bench of this Court in Vedire Venkata

Reddy (supra) is no more valid. The decision of Hon'ble Supreme

Court in Atma Linga Reddy is complete answer to the submissions

made by learned senior counsel for petitioners.

38. On a careful reading of definition of water dispute in Section 2(c)

read with Section 3 of the Act, adjudication of water disputes as

envisaged under Section 5 and bar of jurisdiction created by

Section 11, it is apparent that term 'water dispute' is given wide

connotation and encompasses everything and anything concerning

inter-state river whenever a dispute/complaint is raised concerning

inter-state river water. Any issue arising out of use, distribution or

control of water concerning inter-state river is water dispute and any

matter appearing to be connected with or relevant to the water dispute

is also a water dispute and requires adjudication by a special tribunal

established under the Act. Any matter even if it appears to be

connected to and/or relevant to water dispute, it has to be placed

before a Tribunal duly constituted under the Act 33 of 1956. From

the pleadings and submissions made, it is apparent that a dispute is

raised on the decision of the Telangana Government to draw

additional 1 TMC of water from River Godavari.

39. Next it is required to consider whether Act 6 of 2014 brings out

any change on the scope of application of the law on inter-state water

disputes.

40. We have carefully considered provisions of Act 6 of 2014 to

appreciate the contention of learned senior counsel on continuous

application of Act 33 of 1956 to disputes concerning drawing of water

from Godavari River. Part-IX of the Act 6 of 2014 deals with

management and development of water resources. Section 84 provides

for constitution of Apex Council for Godavari and Krishna river water

resources and to establish river Boards to the two rivers. Section 84

vests power in the Apex Council, (1) to supervise functions of the two

river boards; (2) to plan and approve construction of new projects;

(3) for amicable resolution of any dispute arising out of sharing of river

water; and (4) on failure to resolve a dispute by negotiations, for

reference of dispute to Tribunal constituted under Act 33 of 1956. It

is, thus, apparent that Apex Council should first try to conciliate/ iron

out differences on any issue concerning Inter-State River-Water and if

the dispute could not be resolved in such manner, it has to refer the

dispute to the Tribunal. Thus, ultimately a dispute has to be resolved

only by the Tribunal constituted under the Act 33 of 1956. It is also

pertinent to note that one of the functions of the Board, as specified in

section 85(8)(a)(i) and (d) is regulation of supply of water from the

projects as per the awards passed by the Tribunal constituted under

Act 33 of 1956 and to asses whether any proposal would go contrary

to the award.

41. From the scheme of Part-IX of Act 6 of 2014 it is apparent that

it does not envisage an independent mechanism to one created by Act

33 of 1956 to resolve inter-state river water dispute, but leaves it to

the Tribunal constituted under Act 33 of 1956 to resolve the dispute.

Further, compared to language employed in Section 11, where the

wording read as 'may be referred', implying as vesting discretion,

Section 84(3)(iv)13 of the Act 6 of 2014 is in mandatory terms. Thus,

Section 84. Apex Council for Godavari and Krishna river water resources and their Management Boards.

(1) and (2) Xxxx (3) The functions of the Apex Council shall include: (i) & (ii) xxxx

when it was not possible to resolve a dispute by negotiations, it has to

be referred to the Tribunal. Furthermore, river Godavari is not

confined only to States of Andhra Pradesh and Telangana, but State

of Maharashtra is also a riparian State. So is also river Krishna.

Thus, it cannot be assumed that the Parliament intended to take away

rivers Godavari and Krishna from the purview of Act 33 of 1956. On

the contrary, the scheme of the Act makes it explicit the intendment of

the Parliament. It mandates the Board to comply any award passed

by the Tribunal. It requires the Apex Council to refer the dispute to

the Tribunal. Further, Brijesh Tribunal constituted under Act 33 of

1956 continues to deal with water disputes concerning River Krishna.

It is thus apparent that there is no conflict in the provisions of two

Acts nor do they overlap on any aspect and both Acts deal with two

different aspects of sharing of Inter-State river water. They are in

complete harmony.

42. Once it is found that Act 6 of 2014 has not created separate

mechanism for resolution of a dispute concerning inter-state river

water and that there is no conflict in the scope and application of two

Acts, and that the Act 33 of 1956 continues to apply, the opinion of

Hon'ble Supreme Court in Atma Linga Reddy (supra) and other

decisions that followed apply in all force to the issue in these writ

petitions. In Atma Linga Reddy (supra), Hon'ble Supreme Court

(iii) resolution of any dispute amicably arising out of the sharing of river waters through negotiations and mutual agreement between the successor States;

(iv)reference of any disputes not covered under Krishna Water Disputes Tribunal, to a Tribunal to be constituted under the Inter-State River Water Disputes Act, 1956(33 of 1956)

dwelled deep on the scope of Act 33 of 1956. It has also considered

the plea raised by the petitioners therein that the remedy under Act

33 of 1956 was not available to individuals and therefore writ remedy

cannot be ousted. Dealing with this submission, the Supreme Court

observed that the state is 'paren spatriae' and therefore if there is any

grievance on drawing of water, which will impact a habitant of the

state, the state has to take up the issue and raise a dispute.

43. It is beyond pale of doubt that river Godavari is inter-state river

covering States of Maharashtra, Telangana and Andhra Pradesh, that

the State of Telangana is a riparian State and is entitled to draw water

from river Godavari. The water flow in the river is at a low level and

geographically the lands in Telangana are on higher altitude. Thus,

only option to utilize water from the river Godavari is by lifting and

storing in reservoirs. Plans to construct reservoirs and lift water were

envisaged long ago, but was taken up on a brisk pace only after

formation of separate State. The Telangana State Government

intended to provide water for agricultural purposes, for drinking

purposes and for industrial purposes. It has constructed irrigation

canals, pump houses and reservoirs. From river Godavari how much

of water can be utilized, how to utilize, when to utilize are inter-state

matters involving three riparian States and Union of India. On these

aspects individual habitants of respective States have no say.

44. Coming back to the facts of the case, drawing additional one

TMC of water per day is intended to utilize the water availability in

river Godavari in a shorter period and store the water in the reservoirs

already constructed. Right to water is a fundamental right of a citizen

and it is the duty and responsibility of a State to provide available

water to every citizen. Therefore, the decision of the government to

draw additional water is in the larger public interest and beneficial to

each and every inhabitant of the state, directly or indirectly, including

the petitioners.

45. It is a well-known fact that there will not be good rainfall every

year and period of rainfall may also vary from year to year. According

to State Government in the longer run, to draw water from river

Godavari as allotted to it within a shorter period by creating better

infrastructure is ideal and in the best interests of the inhabitants of

the State. It intends to strengthen and firm up availability of water so

that the Government can meet any contingency to ensure availability

of water. It is a policy decision based on assessment of various factors

that influence availability of water in a river. It is not disputed that

the Telangana Government can draw 225 TMC of water from river

Godavari. It is also not disputed that Government can draw water per

day at a higher capacity. What is disputed is decision to draw one

additional TMC of water per day without a new DPR and

environmental clearance as not permissible. According to the State

Government, the KLIP has the requisite approvals and environmental

clearance and lifting of one additional TMC of water per day is in

accord with said approvals and clearances. Thus, what is contended

is with reference to competence of State of Telangana to draw water

from river Godavari, an inter-state river.

46. Petitioners in writ petition other than the PIL are land owners.

They are not concerned with State Government's decision to draw one

additional TMC of water from river Godavari. They only oppose

acquiring land to build canals to draw one additional TMC of water by

contending that there is no approval by GRMB and there is no

environmental clearance. Similarly, in PIL also, petitioners oppose

various development activities taken up by Government to draw one

additional TMC of water per day on the very same grounds. The

further reliefs sought in WP (PIL) are also based on the premise that

proposed action of creating infrastructure to draw one additional TMC

is without prior approvals/clearances.

47. Though the cause shown to invoke the jurisdiction of this

Court is on steps taken up by the State Government to put in place

infrastructure required to draw additional one TMC of water per day,

it is apparent from the pleadings and the submissions and the

complaints filed that the dispute raised is with respect to use and

distribution of water from river Godavari, that is connected to and

relevant to 'water dispute' within the meaning of the Act 33 of 1956.

48. Guided by the law enunciated by the Hon'ble Supreme Court

and having carefully considered provisions of Act 33 of 1956 and Act 6

of 2014, we are of the considered opinion that what is urged by the

petitioners is a facet of inter-state water dispute, such dispute has to

be resolved as per the mechanism created by the Act 6 of 2014 and

the Act, 33 of 1956 and, therefore, the jurisdiction of the High Court is

ousted. For that matter, no Court much less a Tribunal other than

the Tribunal formed under Act 33 of 1956 and statutory authority

other than GRMB can deal with water dispute. Any such decision or

order contrary to the scheme of the Acts becomes a nullity.

49. Once this mist is cleared, what remains in the writ petition is

the challenge to the notification under section 11 (1) of the Act 30 of

2013.

50. The Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (Act, 2013) is a

comprehensive enactment dealing with all aspects of land acquisition

from private persons for public purpose. After requisition department

places indent on Land Acquisition Authority, as per Section 11

preliminary notification has to be issued along with the details of the

land to be acquired calling for objections. Notification would enable

aggrieved persons to raise objections on intendment to acquire private

land for public purpose. Section 15 of the Act provides areas in which

such objections can be raised and on holding of personal hearing.

Objections are required to be filed before the Collector within the time

stipulated. On scrutiny of the objections, as per Section 15, the

Collector is required to afford opportunity of hearing. Thereafter, on

due consideration of the objections, Collector would file his report.

Thereafter, on observing due procedure, award must be made. In

these cases, the issue is at Section 11(1) notification only.

51. Building canal network to supply water for various purposes,

irrigation, drinking, etc., is public purpose. Once the acquisition

satisfies the requirement of public purpose, this Court cannot go into

the validity of Section 11 (1) notification. It is not necessary that the

notification should expressly state the public purpose. Once

acquisition is stated to be for public purpose, a writ petition against

notification under section 11(1) is not maintainable.

52. Though writ Court has wide amplitude of jurisdiction under

Article 226 of the Constitution of India, it is discretionary and is

subject to self-imposed limitations. It must be exercised with great

caution and only in furtherance of public interest. Larger public

interest must be kept in mind to decide whether intervention of Court

is called for, more so at the initial stage of decision making process, in

these cases at the stage of Section 11(1) notification.

53. Again it is sought to be urged that as the acquisition is for new

project unless Government invokes exemption clause under Section

10-A of the Act 30 of 2013, the whole gamut of the Act has to be

followed, whereas, straight away Section 11 (1) notification was

issued. According to learned Additional Advocate General, the

impugned acquisition is not for a new project but is to build canal

network to lift additional one TMC of water per day as part of KLIP and

exemption clause was already exercised vide G.O. Ms No. 35 dated

30.6.2017.

54. It is apparent from respective submissions that the dispute

revolves on whether State of Telangana can draw one additional TMC

of water per day from river Godavari claiming the same as part of KLIP

or it requires approval from GRMB and environmental clearance and

thus appearing to be connected to /relevant to 'water dispute'.

55. Even if a legal flaw can be electronically detected, this Court

would not interfere save manifest injustice or unless a substantial

question of public importance is involved [RASHPAL MALHOTRA Vs

SATYA RAJPUT MRS AND ANOTHER14 and COUNCIL OF SCIENTIFIC

AND INDUSTRIAL RESEARCH AND ANOTHER Vs.

K G S BHATT15]. In TELSON REAL ESTATE Vs STATE OF

MAHARASTRA16, Hon'ble Supreme Court held that without filing

AIR 1987 SC 2235

AIR 1089 SC 1972

(2007) 13 SCC 186

objections, petitioners are not entitled to question land acquisition

proceedings.

56. At this stage, we are reminded of the observations made by the

Supreme Court in RAMNIKLAL N BHUTTA Vs. STATE OF

MAHARASTRA17. Supreme Court cautioned that while exercising writ

jurisdiction under Article 226, the Court should keep in mind larger

public interest with reference to infrastructural projects. The

Supreme Court observed that discretionary jurisdiction under Article

226 should be exercised only in furtherance of interest of justice and

not merely on making out of a legal point.

56.1. It is useful to extract observations of Supreme Court in

paragraph-10. They read as under:

"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce.

(1997) 1 SCC 134

They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 -- indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non- compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."

(emphasis supplied)

57. Further, at this stage if process of acquisition is stalled on the

premise that the fresh permissions/clearances are not secured to

draw one additional TMC of water from river Godavari, which is a

'water dispute', it would cause greater hardships to the larger public

and therefore cannot be in public interest. Thus, no interference is

called at this stage vis-à-vis Act 30 of 2013.

58. It was also urged that in the Gazette Notification dated

15.07.2021, Central Government directed both State Governments to

stop work on unapproved projects; that the National Green Tribunal,

Principal Bench in its order dated 20.10.2020 made in Appeal No.20

of 2018 also observed that directions of Central Government are

binding on the State Government; that there was no social impact

assessment; no plans were drawn up for rehabilitation and

resettlement; no report on environmental clearance, etc.

59. We refrain from expressing opinion on all other submissions in

view of our decision on the preliminary objection on maintainability of

the Writ Petition.

60. In the result and for the aforesaid reasons, the Writ Petitions are