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PETITIONER: DELHI WATER SUPPLY & SEWAGE DISPOSALUNDERTAKING & ANR.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT:       29/02/1996

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) HANSARIA B.L. (J)

CITATION:  1996 SCC  (2) 572        JT 1996 (6)   107  1996 SCALE  (2)SP75

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Water is  a  gift  of  nature.  Human  hand  cannot  be permitted  to   convert  this   bounty  into   a  curse,  an oppression. The  primary use to which the water is put being drinking, it would be mocking the nature to force the people who live  on the  bank of a river to remain thirsty, whereas others incidentally  placed in  an advantageous position are allowed to  use the water for non-drinking purposes. A river has to flow through some territory; and it would be travesty of justice  if the  upper-riparian States  were to  use  its water  for  purposes  like  irrigation,  denying  the  lower riparian States  the benefit  of using  the water  even  for quenching the thirst of its residents. 2.   The  plight  of  residents  of  Delhi  in  not  getting sufficient water even for drinking, led Commodore S.D. Sinha to approach  this Court under Article 52 of the Constitution by filing  a public  interest petition,  which  came  to  be registered as  Writ Petition  (C) No.537  of  1992  seeking, inter alia,  a direction  to the  concerned  Governments  to maintain regular  low of  water, in Jamuna river so that the residents of  Delhi do  not face  problem of drinking water, which, however, was being so faced because of non-release of sufficient  quantity   of  water   from  Tajewala  Head.  As intricate questions of law were found to be involved, on the suggestion of  the court, Commodore Sinha agreed to have the guidance and assistance of senior lawyer through the Supreme Court Legal Aid Committee. 3.   It is  this which  found  Senior  Advocate,  Shri  K.K. Venugopal before us. The learned counsel took pains to bring to our notice by referring to some decisions of the American Court, as  well as  to some  writings, that  drinking is the most beneficial  use of  water and this need is so paramount that it  cannot be  made subservient  to any  other  use  of water, like  irrigation. So,  the right  to use of water for domestic purpose  would prevail  over  other  needs.  It  is

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because of  this that  it was  contended that  what has been stated in  Article 262  of  the  Constitution  dealing  with adjudication of  disputes relating  to waters of inter-State river or river valleys, read with Inter-State Water Disputes Act, 1956,  could not exclude the jurisdiction of this Court to entertain the grievance of the petitioner. 4.   Shri Venugopal  - in  support of his contentions relied upon  high   authorities  of   State  of   Connecticut   vs. Commonwealth of  Massachuhetts, 75  Law  Ed.  602;  American Jurisprudence, Vol.78,  2d p.293;  and C.D.  Harris vs. John Brooks, 54  American Law  Reports 2d series p 1440. We found plausibility in  the contentions and were inclined to unfold new jurisprudential  arena, despite  strong objection to the same being  taken by  the State of Haryana, which came to be represented by  its Advocate  General, Shri H.L. Sibal, at a later stage.  Shri Sibal  pleaded in  the alternative not to base our  decision on  the principle of law advanced by Shri Venugopal, as  a Memorandum  of Understanding  (MOU) between U.P., Haryana,  Rajasthan,  Himachal  Pradesh  and  National Capital Territory  of Delhi, regarding allocation of surface flow of Jamuna, had come to be signed on September 12, 1994. The Advocate  General urged  that we  may ask  the concerned States to  act as  per the  said MOU.  We found merit in the submission and  Shri Venugopal  too raised no objection, and rightly.  But,as  to  act  according  to  the  MOU  required deliberation by  Upper Jamuna  River Board; and as there was some difficulty in doing so because its membership could not be  finalized;   and  as   the  summer   months  were   fast approaching, a  need was  felt by  us  to  give  appropriate direction to  take care  of the  hardship likely to be faced during those months. 5.   This led  us to  pass order  dated March 31, 1995.  The operative part reads as below:      "After hearing  the representatives      of all the States concerned and the      Union of  India and  their  learned      counsel, we  are of  the view  that      the  Board   having  been   legally      constituted,  the   Memorandum   of      Understanding has become executable      under law. The State of Delhi which      is in  dire need  of water is to be      given its  allocation of water with      immediate  effect.  We,  therefore,      direct  all   the  parties  to  the      Memorandum  of   Understanding   to      assure that sufficient water, which      according to Mr. Mathur is about 2-      1/2   times    of   the    seasonal      allocation,   is    released   from      Tajewala Head  so that  Delhi  gets      0.076 B.C.M.*  for its  consumption      during the  period March  to  June,      1995.           We issue special directions to      the States  of  Haryana  and  Uttar      Pradesh   through    their    Chief      Secretaries   of   the   Irrigation      Departments to release the water as      directed by  us for the consumption      of Delhi  from Tajewala  Head  with      effect from  April 6,  1995.  While      passing this  order, we  take  this      opportunity    to    request    the      respective Chief  Ministers of  the

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    two States  of  Haryana  and  Uttar      Pradesh  to  direct  the  concerned      officers/officials     of     their      respective Governments  to have our      directions  regarding   supply   of      water  to Delhi, complied with.      -----------------------------------      *It  is  this  guantity  of  water,      Delhi has  to get  under  the  MOU,      between March to June.           We make  it  clear  that  this      order is as an interim measure till      the time  the members  of the Board      and  the   Review   Committee   are      appointed    and     they    become      functional. As  soon as  the  Board      becomes functional,  it will  be at      liberty to  pass any  direction  in      the light  of this  order  as  they      deem fit and in accordance with the      Memorandum of  Understanding in the      interest of  all the  States  which      are signatories  to the  Memorandum      of Understanding.           List this  writ  petition  and      I.A. No.6  be listed on May 5, 1995      at  2.00   p.m.   to   review   the      situation  arising   out   of   our      order". 6.   The averment  in these  two contempt  petitions, one of which is  by the  Delhi Water  Supply  and  Sewage  Disposal Undertaking inf  the other  by Commodore  Sinha, is that the aforesaid order  was willfully  violated by  the contemners. The   grievance being  common, they  were heard together and are being disposed of by this common order. 7.   The contemners  agree that no water at all was released pursuant to  the above  order. Their  shocking stand is that under the  MOU, Delhi  was not to get any extra water beyond what it  was getting before March 31, 1995. We are piqued at this statement  inasmuch as  the order  of 13th  March would then case  to have any meaning an exercise in futility. Shri Jaitley appearing for the Water Supply Undertaking would not agree to this stand. The learned Solicitor General, who  was requested to  assist us  in  these  proceedings,  ultimately stated that  the stand of Haryana way not be correct, though the learned Solicitor was initially of the view that perhaps under the MOU Delhi was not entitled to any extra water. 8.   If the  stand of Haryana regarding the MOU, as advanced in these  proceedings by  the learned  Advocate General,  be correct, we  have no  doubt that  the State  had mislead the Court when  the order  of 31st March was passed. It thwarted the passing  of an  appropriate order  which we  would  have passed but  for the  understanding given  to us on March 31, 1995 by  Haryana. With  summer months  ahead, we  would have called upon  Haryana to allow the required quantity of water to pass  through the  Tajewala Head as we would have thought necessary. The  volte-face by  Haryana has undoubtedly to be viewed seriously and it deserves to be disapproved strongly. We would  have indeed  found the concerned persons guilty of contempt for  misleading the  Court and  preventing it  from passing such  order  as  thought  just  and  proper  by  it, inasmuch  as   the  course   of  administration  of  justice definitely got  deflected because of the twists in the stand of the State. 9.  Despite   the  aforesaid  being  the  position,  we  are

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refraining from  using our contempt jurisdiction inasmuch as the learned  Advocate General has assured that Haryana would see that  Delhi gets  as much of water which it is presently receiving through-Jamuna,  if  so  directed  by  us.  It  is because of  this statement  that Shri Jaitley submitted that the Water  Supply Undertaking  is not  keen  to  pursue  the contempt proceeding.  Commodore Sinha too has taken the same stand. It  is this gesture, along with the statement made by the learned Advocate-General, which has led us to close this proceeding, despite the highly objectionable  conduct of the concerned persons. 10.  So far  as water  supply from  river Jamuna to Delhi is concerned, we  order and direct that Delhi shall continue to get as  much water  for domestic  use from  Haryana  through river Jamuna  which can  be consumed  and filled  in the two water reservoirs  and  treatment  plants  at  Wazirabad  and Hyderpur. Both  the Wazirabad  and Hyderpur reservoirs shall remain full  to their  capacity from  the water  supplied by Haryana through river Jamuna. We direct the State of Haryana through all  its officers who are party to these proceedings and who  have filed affidavits before us not to obstruct the supply of water to Delhi as directed by us at any time. This order of ours is not dependent on the MOU mentioned above or any other proceedings which may be initiated under any other law between the parties. 11.  We,  therefore,   close  the  proceeding  by  requiring Haryana to make available the aforesaid quantity of water to Delhi throughout  the year.  Let it  be made  clear that any violation of  this direction  would be  viewed seriously and the guilty  persons would  be dealt with appropriately. This order of  ours would  bind, not  only the  parties  to  this proceeding, but also the Upper Jamuna River Board.