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

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

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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

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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)

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(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).

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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

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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

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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

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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

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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

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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.”  

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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

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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

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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

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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

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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).”   

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              (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,

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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.

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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

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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

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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

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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

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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,

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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

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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

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(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

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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,

27

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

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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;

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“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

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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

‘water dispute’ within the meaning of Section 2 (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

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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.

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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

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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

34

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

35

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

36

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

37

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

38

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,

39

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)

40

NEW DELHI,  ………………………………………………J. JULY 10, 2008.    (D.K. JAIN)

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