IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL)NO.443 of 2006

State of Orissa   …    Petitioner

Vs.

Government of India & Anr.   …    Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. The State of Orissa has filed this writ petition

under  Article  32  of  the  Constitution  of  India,

wherein the Government of India has been made the

Respondent No.1 and the State of Andhra Pradesh has

been made the Respondent No.2,  inter alia, for the

following reliefs :-

“a) direct  the  Government  of  India  to constitute  an  appropriate  Tribunal under  Section  4  of  the  Inter  State Water  Disputes  Act,  1956  and thereafter,  refer  to  it  the  dispute

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relating to the construction of Side Channel  Weir  and  Flood  Flow  Canal Project  at  Katragada  on  the  river Vansadhara  by  the  State  of  Andhra Pradesh;

b) issue  a  writ  of  mandamus  commanding the State of Andhra Pradesh to forbear from  carrying  on  any  works  of  the proposed project;”  

2. As indicated in the very opening paragraph, the

writ petition was filed by the State of Orissa for a

direction to the Central Government to constitute a

Water Disputes Tribunal under the Inter-State Water

Disputes Act, 1956 and to refer to the Tribunal the

dispute contained in the complaint made by the State

of Orissa on 13th February, 2006, as to whether the

State  of  Andhra  Pradesh  was  justified  in

constructing  a  Side  Channel  Weir  and  Flood  Flow

Canal Project on the river Vansadhara at Katragada,

which  would  adversely  affect  the  supply  of  water

from the river to the State of Orissa and adversely

affect  the  livelihood  of  thousands  of  people  of

Orissa in glaring violation of Article 21 of the

Constitution of India.

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3. In order to understand the stand taken by the

State of Orissa in the matter, it would be necessary

to set out the facts of the case giving rise to the

dispute.   

4. The  river  Vansadhara  originates  in  the  South

West  of  Lanjigarh  in  the  Kalahandi  District  of

Orissa and continues its journey for 239 kms. before

entering the Bay of Bengal.  Out of the said 239

kms., a length of 154 kms. lies in the State of

Orissa, 29 kms. forms the border between the State

of Orissa and Andhra Pradesh and the remaining 56

kms. lies within the State of Andhra Pradesh.  The

said river and its valley is fed by the South-West

monsoon beginning in the middle of June and ending

in the month of October each year and is followed by

the retreating monsoon and North-East monsoon till

the  end  of  January.   According  to  the  State  of

Orissa, about 80% of the total volume of water comes

from the catchment area lying in Orissa.  While the

farmers in Andhra Pradesh utilize 7 TMC of water

from the river, the inhabitants of Orissa utilize 12

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TMC for drinking purposes and water tanks etc. in

the up-stream and down stream of Katragada.   

5. During  the period from 1956-60, the  State of

Andhra Pradesh proposed the construction of Gotta

Barrage  and  Neradi  Barrage  across  the  Vansadhara

river.  During the aforesaid period, many meetings

were held between the officials of the two State

Governments to resolve the dispute of allocation of

water.  On 30th September, 1962, an Agreement was

signed by the Additional Chief Engineer of Orissa

and  the  Additional  Secretary,  PWD,  of  Andhra

Pradesh,  which  was  recorded  in  Minutes  dated  30th

September,  1962.   In  1971,  the  State  of  Andhra

Pradesh started construction of the Gotta Barrage

(Vansadhara Stage-I) which was completed in the year

1982.  Thereafter, it also constructed Phase-I of

Stage-II of the Vansadhara project, i.e., right bank

canal.   Several  meetings  were  held  between  the

officials, including the Chief Ministers of the two

States,  and  Agreements  were  signed  pertaining  to

allocation of water of the Neradi Barrage.  On 30th

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December, 1994, a meeting was held between the Chief

Ministers of the two States and it was decided that

all the available water would be shared between the

two  States  on  a  50:50  basis  annually.   The

discussions relating to the distribution of water

from  the  Neradi  Barrage  were  recorded  and  is

reproduced hereinbelow :

“NERADI BARRAGE :

Government  of  Orissa  agrees  in principle to the proposal of Government of Andhra  Pradesh  for  going  ahead  with  the project  subject  to  the  following conditions.

(1) Hydrology data available in the C.W.C. Water year Book upto 1992 was studied by  the  Orissa  Engineers.   Based  on this  analysis  it  is  found  that  in Vansadhara  basin  approximately  76.47 TMC  water  is  available  in  monsoon. During  non-monsoon  months  the  yield may approximately be 7 TMC.  All the available water will be shared between the  two  States  on  50:50  basis annually.  The above figure regarding water  availability  would  be  updated from  time  to  time  on  the  basis  of additional data as and when available.

(2) No area in Orissa will be submerged as a  result  of  construction  of  the proposed  Neradi  Barrage,  except  106 acres of land to be acquired in Orissa

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State  for  various  purposes  as indicated in the Project Report.

(3) To ensure that the back water stretch is limited only to 3 kms on the upstream, the river  has  to  be  widened  by  removing construction between the chainage 10.37 to 13.65 kms to the section as suggested in the  supplementary  mathematical  model  run by the C.W.C.  The Government of Orissa, in consultation with C.W.C. will however conduct  sensitivity  studies  within  a period of 3 (three) months incorporating varying  ‘n’  values  which  has  not  been carried  out  so  far  by  the  C.W.C.   This study  will  indicate  the  water  surface profile  upstream  and  downstream  of  the barrage  and  the  extent  of  likely  back water  stretch  in  Orissa.   Based  on  the sensitivity study the height and length of the wall may need revision, the design of which will need to be agreed by the Orissa Government.   

(4) A joint technical committee consisting of the Engineer-in-Chief of both the States will be formed to approve broad design and construction features of     the barrage as  well  as  water  sharing     and  flood management.

Sd/- Sd/- Shri N.T. RAMA RAO Shri BIJU PATNAIK

CHIEF MINISTER CHIEF MINISTER ANDHRA PRADESH ORISSA.”

6. After the meeting of the two Chief Ministers and

the decision arrived at by them, several meetings

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were held between the officials of both the States

in regard to the allocation of water of the river

flowing through both the States.  At this stage,

while considering the technical design of the Neradi

Barrage, the Government of Andhra Pradesh announced

a new project by investment of Rs.850 crores.  The

Chief  Minister  of  Andhra  Pradesh  on  6th January,

2005, announced that the waters of the Vansadhara

river would be diverted at Katragada to a 34 kms.

long  Flood  Flow  Canal  and  be  stored  in  the

Heeramandalam reservoir to irrigate 1.07 lakh acres

of  land  by  utilizing  19  TMC  of  water.   It  was

apprehended by the State of Orissa that the said

proposed  project  would  deprive  the  villagers  of

Orissa lying on the opposite bank in the down stream

from  even  dry-weather  flow  and  there  was  also  a

possibility of shifting of the river course itself.

On  18th February,  2005,  the  Principal  Secretary,

Department of Water Resources, Government of Orissa,

wrote  to  his  counter-part  in  Andhra  Pradesh

protesting  against  the  new  project.   The  said

objection culminated in a meeting of the Ministers

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of the two States on 24th February, 2005 at Hyderabad

against  the  new  proposal  for  the  project  at

Katragada  and  the  said  meeting  ended  with  the

following resolution:

“1) Constitution  of  a  Technical Committee with the Engineers from both the States to study all aspects of Vansadhara Project  Phase  II  of  State-II,  including submergence in Orissa, if any, and submit the report not later than three months.

2) No work will be taken up by both the States in the river bed or banks or on Flood flow Canal, till the final Report of the Technical Committee is submitted and accepted by both the Governments.

3) No work, which will jeopardize the interest of any State, shall be taken up.

4) The  relevant  Project  information will  be  furnished  to  the  Central  Water Commission, as per requirements.

5) The  delegation  of  Ministers  of both the States shall meet as frequently as possible to sort out all the matters of mutual interest as regards to Irrigation Project……”  

7. It is the grievance of the State of Orissa that

despite the resolution adopted at the Inter-State

meeting  held  on  24th February,  2005, whereby  four

meetings were proposed to be held, no such meetings

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were convened, and, on the other hand, despite the

undertaking given by the two States, the State of

Andhra Pradesh continued with its construction work

on  the  Flood  Flow  Canal  by  continuing  with  land

acquisition  and  other  preliminary  works.   Even

Bhoomi Pujan was alleged to have been conducted by

the State of Andhra Pradesh in connection with the

aforesaid project.  It is the said conduct of the

officials  of  the  State  of  Andhra  Pradesh,  which

resulted in the filing of the writ petition and also

a complaint under Section 3 of the Inter State Water

Disputes Act, 1956 and the Rules framed thereunder

to  the  Union  of  India.   Following  the  said

complaint, an Inter-State Meeting with Secretaries

of the Irrigation/Water Resources Departments of the

two States was convened on 24th April, 2006 by the

Secretary  (Water  Resources),  Government  of  India.

However, no action was taken by the Government of

India  with  regard  to  the  request  made  by  the

Government of Orissa to restrain the Government of

Andhra  Pradesh  from  going  ahead  with  the

construction of the Vansadhara Phase-II of Stage-II

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(Katragada  Flood  Flow  Canal)  or  to  constitute  a

Water Disputes Tribunal under Section 4(1) of the

Inter State Water Disputes Act, 1956 (hereinafter

referred to as “1956 Act”).  While, on the one hand,

the Government of India remained inactive, the State

of Andhra Pradesh proceeded with the work of the

Side Channel Weir and Flood Flow Canal at Katragada

on  the  river  Vansadhara  compelling  the  State  of

Orissa to move the instant writ petition for the

reliefs as indicated hereinbefore.       

8. Appearing  for  the  State  of  Orissa,  Mr.  Raju

Ramachandran,  learned  Senior  Advocate,  submitted

that the dispute between the State of Orissa and the

State  of  Andhra  Pradesh  was  in  effect  a  “water

dispute” within the meaning of Section 2(c) of the

1956 Act, as it relates to the apportionment of the

waters  of  the  Vansadhara  river  between  the  two

States  which  would  be  adversely  affected  by  the

decision of the State of Andhra Pradesh to divert

the waters of the said river at Katragada to a 34

kms.  long  Flood  Flow  Canal  for  storage  in  the

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Heeramandalam reservoir which would have the effect

of depriving the inhabitants in the State of Orissa

in the downstream area of water for drinking and for

other purposes.   

9. “Water dispute” has been defined in Section 2(c)

of the 1956 Act as follows :-  

“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.”

In this regard, reference may also be made to

Article  262  of  the  Constitution  of  India,  which

provides as follows :-

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“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).”   

10. A similar provision is contained in Section 11

of the 1956 Act, which reads as follows :-

“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.”

11. In the light of the above provisions, both of

the 1956 Act and the Constitution, and having regard

to the inaction of the State authorities to settle

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the  dispute,  Mr.  Ramachandran  submitted  that  the

State of Orissa was compelled to file the complaint

to the Central Government under Section 3 of the

1956 Act for the constitution of a Tribunal in terms

of Section 4 thereof.  

12. While  considering  the  nature  of  the  dispute,

this Court on 30th April, 2007, urged the parties, if

possible, to arrive at a settlement, which did not

prove fruitful.

13. Referring  to  Section  3  of  the  1956  Act,  Mr.

Ramachandran  contended  that  it  was  for  the  State

Government  to  arrive  at  a  decision  that  a  water

dispute had arisen with the Government of another

State  and  subject  to  fulfilling  the  conditions

indicated in Section 3, it could request the Central

Government to refer the water dispute to a Tribunal

for adjudication, as has been done in the instant

case.  Mr. Ramachandran also referred to Section 4

of the 1956 Act, which deals with the constitution

of the Tribunal and submitted that when a request

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under  Section  3  was  received  from  any  State

Government in respect of a water dispute and the

Central Government was of the opinion that the water

dispute  could  not  be  settled  by  negotiation,  the

Central Government would have to, by notification in

the Official Gazette, constitute a Water Disputes

Tribunal for the adjudication of the water dispute.

Mr. Ramachandran urged that the provisions of both

Sections 3 and 4 of the 1956 Act were reflected in

prayer  (a)  of  the  writ  petition,  in  which  a

direction has been sought on the Government of India

to constitute an appropriate Tribunal under Section

4 of the 1956 Act.   

14. Mr. Ramachandran also pointed out that in the

counter affidavit filed on behalf of Union of India,

it has been stated in paragraphs 2, 3 and 4 that

necessary steps had already been taken pursuant to

the  complaint  filed  by  the  State  of  Orissa  in

accordance with the provisions of the 1956 Act and

the Government of India was hopeful of a negotiated

settlement of the dispute.   In paragraph 3 it has

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been indicated that only in the event of failure of

negotiations for settlement of the water dispute,

necessary steps may be taken or directions may be

issued for the constitution of a Tribunal.

15. Mr. Ramachandran urged that despite all efforts,

a negotiated settlement has eluded the parties and,

on the other hand, the State of Andhra Pradesh has

continued  with  the  construction  work  of  the  Side

Channel  Weir  and  Flood  Flow  Canal  Project  at

Katragada.   

16. Having  regard  to  the  above,  Mr.  Ramachandran

referred to the decision of this Court by a Bench of

three  Judges  in  Tamil  Nadu  Cauvery  Neerppasana

Vilaiporulgal  Vivasayigal  Nala  Urimai  Padhugappu

Sangam vs. Union of India & Ors. (1990 (3) SCC 440),

wherein in a similar application under Article 32 of

the  Constitution  regarding  the  equitable

distribution of the waters of the river Cauvery, a

direction was sought on the Union of India for the

constitution of a Water Disputes Tribunal under the

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1956  Act.   While  considering  the  provisions  of

Section 4, this Court was of the view that in view

of the mandatory provisions of Section 4 by use of

the  word  “shall”,  it  was  both  mandatory  and

obligatory on the part of the Central Government to

constitute an appropriate Tribunal and to refer the

dispute to it.  Having held as above, this Court

directed the Central Government to constitute such

Tribunal  for  adjudication  of  the  water  dispute

indicated  in  the  judgment.   Mr.  Ramachandran

submitted  that  a  similar  direction  may  also  be

issued in the instant case in view of the failure of

the Central Government to act in terms of Section 4

on the complaint made by the State of Orissa under

Section 3 of the 1956 Act.   

17. Learned senior counsel, Mr. Dipankar Gupta, who

appeared for the State of Andhra Pradesh, at the

very outset contended that the relief prayed for by

the State of Orissa in the Writ Petition was not a

“water dispute” within the meaning of Section 2(c)

of  the  1956  Act.  Mr.  Gupta  submitted  that  in

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principle both the States had agreed to the sharing

of the waters of the Vansadhara river on an equal

basis and without disturbing the said arrangement,

the State of Andhra Pradesh had taken a decision to

divert  a  part  of  the  river  waters,  within  its

allocation, to Katragada, to benefit a large number

of  farmers  living  in  the  said  region.  Mr.  Gupta

urged that the construction of the Side Channel Weir

and the Flood Flow Canal at Katragada and the Neradi

Barrage was undertaken after a series of meetings

and discussions held between the Chief Ministers of

the two States and at several inter-State meetings,

in particular the meeting held on 5th December, 2006,

the State of Orissa agreed for a mathematical model

study  of  the  side  weir  and  the  meeting  in  that

connection was scheduled to be held on 18th December,

2006, at Pune, at the instance of the Central Water

and  Power  Research  Studies,  Pune.  Mr.  Gupta

submitted that the representatives of the State of

Andhra Pradesh attended the said meeting where it

was decided to conduct certain tests in relation to

the construction of the Weir at Katragada. Pursuant

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to the meeting held on 5th December, 2006, the State

of Orissa agreed to conduct a Technical Committee

meeting on 5.1.2007, at Bhubaneswar.  As it appears

from the materials on record such meeting did not in

fact take place although in principle the State of

Orissa  had  agreed  to  the  aforesaid  constructions

subject to the report of the Technical Committee of

the Government of Orissa.

18. Mr.  Gupta  submitted  that  despite  the  best

efforts of the State of Andhra Pradesh, owing to the

non-cooperation on the part of the State of Orissa,

the construction of the Side Channel Weir and the

Flood  Flow  Canal  and  the  Neradi  Barrage  were

stalled.

19. Mr. Gupta reiterated his opening submission that

there was, in fact, no dispute which was required to

be  referred  to  a  Water  Disputes  Tribunal  to  be

constituted under the 1956 Act, as both the States

in principle had agreed to sharing of the waters of

the Vansadhara river on an equal basis.  All that

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was  required  was  for  the  representatives  of  the

States to sit together and with the help of their

representatives and Technical Committees arrive at a

solution  whereby  the  aforesaid  construction  work

could be undertaken without disturbing the flow of

water  to  the  State  of  Orissa  accenting  to  its

entitlement.

20. The submissions made by Mr. Dipankar Gupta were

to  some  extent  supported  by  the  stand  taken  on

behalf  of  the  Union  of  India.  Referring  to  the

averments  made  in  the  counter-affidavit  filed  on

behalf of the Union of India, Mr. Navin Prakash,

learned counsel, submitted that it had always been

and is still the endeavor of the Union of India to

settle the dispute which has arisen between the two

States  by  a  negotiated  settlement.  In  fact,  this

submission has been repeated throughout the counter-

affidavit filed on behalf of the Union of India and

orally it was also submitted that the Union of India

was still making attempts to solve the said disputes

through negotiated settlement.

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21. While  advancing  submissions  on  the  writ

petition, submissions were also advanced by learned

counsel on prayer (b) in the writ petition praying

for  a  Mandamus  to  command  the  State  of  Andhra

Pradesh from carrying on any work in respect of the

proposed  project.  Mr.  Ramachandran  contended  that

unless the State of Andhra Pradesh was restrained

from continuing with the construction of the Side

channel Weir and the Flood Flow Canal at Katragada

till  the  constitution  of  the  Water  Disputes

Tribunal, not only would the writ petition become

infructuous,  but  even  the  constitution  of  the

Tribunal would become redundant and meaningless.

22. Replying to Mr. Ramachandran’s submissions, Mr.

Dipankar  Gupta  referred  to  the  provisions  of

Sections 9 and 11 of the 1956 Act, and submitted

that under Section 11 not only all Courts, but also

the Supreme Court would not be entitled to exercise

jurisdiction in respect of any water dispute which

may be referred to a Tribunal under the Act.

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23. Mr. Gupta submitted that in view of such bar, if

it was ultimately decided that the dispute between

the  two  States  was  a  water  dispute  and  the  same

should  be  referred  to  a  Water  Disputes  Tribunal

under the Act, this Court would have no jurisdiction

to pass any orders which were either of an interim

or transitory nature involving the dispute.

24. In this regard Mr. Gupta referred to the views

expressed by a Constitution Bench of this Court on a

Presidential  Reference  under  Article  143  of  the

Constitution  involving  the  Cauvery  Water  Disputes

Tribunal  [1993  Supp  (1)  SCC  96(II)],  wherein  the

same  question  regarding  the  exclusion  of  the

jurisdiction of the Supreme Court under Section 11

of  the  1956  Act  read  with  Article  262  of  the

Constitution was under consideration and it was held

that the Tribunal could pass interim orders in any

pending  water  dispute  when  a  reference  for  such

relief  is  made  by  the  Central  Government  under

Section 5(2) of the Act.

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25. From  the  submissions  made  on  behalf  of  the

respective parties, including the Union of India, it

is quite evident that the final outcome of this writ

petition  would  depend  upon  the  decision  as  to

whether the dispute between the State of Orissa and

the State of Andhra Pradesh regarding the diversion

of the Vansadhara river waters by the construction

of the Side Channel Weir and the Flood Flow Canal

constitutes a water dispute within the meaning of

Section  2(c)  of  the  1956  Act.   Admittedly,  in

principle the two States had agreed to the sharing

of the Vansadhara river waters on an equal basis.

What we are called upon to decide is whether the

diversion of a portion of the river waters into a

Side Channel Weir and a Flood Flow Canal violates

the said agreement and if it does, whether the same

would  amount  to  a  water  dispute  between  the  two

States.  

26. The said proposal of diverting the waters of the

river was disputed by the State of Orissa from as

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far back as in 2005, when the construction work on

the said two projects had just commenced. It is not

disputed  that  several  joint  meetings  were  held

between  the  representatives  of  the  two  State

Governments  on  this  issue,  including  several

meetings  between  the  Chief  Ministers  of  the  two

States. It is also evident that the Union of India,

to whom the complaint had been made by the State of

Orissa  on  13.2.2006,  had  made  attempts  to  bring

about a negotiated settlement between the two States

which  did  not  materialize.  On  the  one  hand  the

complaint  made  by  the  State  of  Orissa  remains

indisposed of, and on the other, the construction of

the Side Channel Weir and the Flood Flow Canal and

the Neradi Barrage had continued.

27. During the hearing, an amendment made to Section

4  of  the  1956  Act,  which  became  effective  from

28.3.2002, was brought to our notice. Sub-section

(1) of Section 4, which is relevant for our purpose

originally read as follows:

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“4. Constitution  of  Tribunal.-  (1) When  any   request  under  Section  3  is received  from  any  State  Government  in respect  of  any  water  dispute  and  the Central  Government  is  of  opinion  that the water dispute cannot be settled by negotiations,  the  Central  Government shall, by notification in the Official Gazette,   constitute  a  Water  Disputes Tribunal  for  the  adjudication  of  the water dispute.”

After  amendment  of  sub-section  (1)  by  the  Inter-

State  Water  Dispute  (Amendment)  Act,  2002,  sub-

section (1) of Section 4 reads as follows:

“4. Constitution of Tribunal.- (1)  When any  request under Section 3 is received from any State Government in respect of any  water  dispute  and  the  Central Government is of opinion that the water dispute  cannot  be  settled  by negotiations,  the  Central  Government shall, within a period not exceeding one year from the date of receipt of such request by notification in the Official Gazette,   constitute  a  Water  Dispute Tribunal  for  the  adjudication  of  the water dispute.”  

(Emphasis added)

28. What is important in the amendment is that in

the event of a genuine water dispute between two

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States  a  time-frame  has  now  been  fixed  for  the

constitution of a Water Disputes Tribunal to settle

the water dispute.  Previously, there was no such

time frame and a request made for constitution of

such a Tribunal could be prolonged indefinitely, as

has  been  done  in  the  instant  case,  without  the

formation of such a Tribunal or without rejecting

the prayer of the State of Orissa to constitute such

a Tribunal. It is now almost three years since the

complaint was made by the State of Orissa but the

Central Government has not taken any action in the

matter.  In this scenario, the prayer made by the

State of Orissa does not appear to be unreasonable

since the dispute between the two States does not

confine  itself  to  the  construction  of  the  Side

Channel Weir and the Flood Flow Canal, but primarily

it  involves  the  unilateral  decision  taken  by  the

State of Andhra Pradesh to divert the river waters

to the State of Andhra Pradesh, which could possibly

disturb the agreement to share the waters of the

river equally.

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29. In my view, such a dispute must be held to be a

water dispute within the meaning of Section 2(c) (i)

of the 1956 Act, which refers to any dispute between

two or more State Governments with regard to the

use, distribution or control of the waters of or/in

any inter-State river or river valley. Moreover, the

time frame inserted into Sub-section (1) of Section

4 of the Act also persuades me to grant the reliefs

prayed  for  by  the  State  of  Orissa  since  its

complaint is pending from 13.2.2006.

30. Coming to the question of grant of interim order

during the interregnum, I am satisfied that unless

some  interim  protection  is  given  till  the

constitution of the Water Disputes Tribunal by the

Central  Government,  the  objection  raised  by  the

State of Orissa will be rendered infructuous, which

certainly  is  not  the  intention  of  the  1956  Act.

Notwithstanding the powers vested by Section 9 of

the  Act  in  the  Water  Disputes  Tribunal  to  be

constituted by the Central Government under Section

4, which includes the power to grant the interim

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order,  this  Court  under  Article  32  of  the

Constitution has ample jurisdiction to pass interim

orders preserving the status quo till a Tribunal is

constituted which can then exercise its powers under

Section 9.  The bar under Section 11 of the Act will

come into play once the Tribunal is constituted and

the water dispute is referred to the said Tribunal.

Till then, the bar of Section 11 cannot operate, as

that would leave a party without any remedy till

such time as the Tribunal is formed, which may be

delayed.

31. I,  accordingly,  allow  the  writ  petition  and

direct the Central Government to constitute a Water

Disputes Tribunal within a period of six months from

date and to refer to it the dispute relating to the

construction of the Side Channel Weir and Flood Flow

Canal Project at Katragada on the river Vansadhara

by the State of Andhra Pradesh for diversion of the

waters  of  the  said  river  which  could  adversely

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affect the supply of water from the said river to

the State of Orissa.

32. I also direct that pending constitution of the

Water Disputes Tribunal and reference of the above

dispute  to  it,  the  State  of  Andhra  Pradesh  will

maintain status quo as of date with regard to the

construction of the Side Channel Weir and the Flood

Flow  Canal  at  Katragada.  Once  the  Tribunal  is

constituted the parties will be free to apply for

further interim orders before the Tribunal.  

33. The writ petition is disposed of accordingly.

34. There will be no order as to costs.

                               ______________J.                                   (ALTAMAS KABIR)

New Delhi

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Dated:6.2.2009

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       REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 443 OF 2006

State of Orissa ..     Petitioner

-versus-

Government of India & Anr. .. Respondent (s)

J U D G M E N T

Markandey Katju, J.

1. I have perused the judgment of my learned brother Hon’ble Altamas

Kabir, J.  in this case and I entirely agree with the reasoning, the conclusion

and the directions which have been given therein.  However, I wish to add a

few words of my own.

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2. The English poet Coleridge in his poem `The Rime of the Ancient

Mariner’ wrote :-

“Water, Water everywhere, but not a drop to drink”

3. This is precisely the situation of the people living in large parts of

India.   Despite  having  immense  reservoirs  of  water  in  the  form of  the

Himalayas in the North and the Arabian sea, Indian Ocean and the Bay of

Bengal  in  the  West,  South  and  East  of  India,  there  are  water  shortages

everywhere often leading to riots, road blocks and other disturbances and

disputes  for  getting  water.   In  many cities,  in  many colonies  people  get

water for half an hour in a day, and sometimes not even that e.g. in Delhi,

Tamil Nadu, Rajasthan, U.P., Northeast, etc..  In large parts of rural areas

there is  shortage of water for irrigation and drinking purpose.   Rivers in

India are drying up, ground water is being rapidly depleted, and canals are

polluted.  The Yamuna in Delhi looks like a black drain.  Several perennial

rivers  like  the  Ganga  and  Brahamputra  are  rapidly  becoming  seasonal.

Rivers  are  dying  or  declining,  and  aquifers  are  getting  over-pumped.

Industries,  hotels,  etc.  are  pumping out  groundwater  at  an alarming rate,

causing sharp decline in the groundwater levels.   Farmers are having a hard

time finding ground water for their crops e.g. in Punjab.  In many places

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there are serpentine queues of exhausted housewives waiting for hours to

fill their buckets of water.  In this connection John Briscoe has authored a

detailed World Bank report,  in which he has mentioned that  despite this

alarming  situation  there  is  widespread  complacency  on  the  part  of  the

authorities in India.      

4. Often there are disputes between States in India relating to the waters

of  inter  State  rivers,  as  in  the  present  case.   To  resolve  these  disputes

Parliament has enacted the Inter State Water Dispute Act, 1956, which was

amended in 2002.  This Act has provided for a mechanism for resolving

such  water  disputes  between  States  through  Tribunals  constituted  under

Section 4 of the Act.

5. Experience has shown that while such Tribunals have played a role in

resolving such disputes to a certain extent, but they have not, and cannot

resolve the water shortage problem permanently.  For instance if there is a

dispute between State A and State B relating to water, and if the Tribunal

decides in favour of State A then the farmers and persons living in urban

areas in State B often resort to agitations which may even lead to violence.

Hence the real solution of the water shortage problem in the country can

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only lie in utilizing the immense water reserves in the sea and in the snow

mountains  by scientific  methods.   Rain  water  must  also  be  scientifically

managed.

6. As regards  sea  water,  the  basic  problem is  how to  convert  saline

water into fresh water through an inexpensive method.  The methods tried

till now have been distillation and reverse osmosis, but these are expensive

methods.  We have to find out inexpensive methods for this, by scientific

research.   Similarly, the immense water reserves in  the Himalayas in the

form of ice can be utilized for the people of the North and Central Indian

States.

7. In my opinion, it is science which can solve this problem.

8. It is indeed sad that a country like India which solved the problem of

town planning 6000 years ago in the Indus Valley Civilization and which

discovered  the  decimal  system  in  Mathematics  and  Plastic  Surgery  in

Medicine in ancient times, and is largely managing Silicon Valley in U.S.A.

today has been unable to solve the problem of water shortage till now.  In

my opinion there is  no dearth  of  eminent  scientists  in the field  who can

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solve this problem, but they have not been organized and brought together

and not been requested by the Central and State Governments to solve this

problem, nor given the facilities for this.

9. In  my  opinion  the  right  to  get  water  is  a  part  of  right  to  life

guaranteed by Article 21 of the Constitution.  In this connection, it has been

observed in  Delhi Water Supply & Sewage Disposal Undertaking and

Anr.  vs.  State of Haryana and Ors. 1996(2) SCC 572 :

“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 water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty”……….

10. Similarly in Chameli Singh & Ors. vs. State of U.P. & Ors. 1996(2)

SCC 549 this Court observed :

“……….Right to live guaranteed in any civilized society implies  the  right  to  food,  water,  decent  environment, education,  medical  care  and  shelter.   These  are  basic human rights known to any civilized society.  All civil, political,  social  and  cultural  rights  enshrined  in  the Universal Declaration of Human Rights and Convention or under the  Constitution of India  cannot  be exercised without these basic human rights.”………..    

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11. The same view was taken in several other decisions by this Court in

various other decisions.

12. I, therefore,  recommend to the Central  Government to  immediately

constitute a body of eminent scientists in the field who should be requested

to do scientific research in this area on a war footing to find out scientific

ways and means of solving the water shortage problem in the country.  This

body  of  scientists  should  be  given  all  the  financial,  technical  and

administrative help by the Central and State Governments for this purpose.

They should be requested by the Central and State Governments to do their

patriotic duty to the nation in this connection, and by scientific research to

find out the ways of solving the water shortage problem in the country.  The

help and advice of foreign scientific experts and/or Indian scientists settled

abroad who are specialized in this field may also be taken, since the solution

to the problem will not only help India but also foreign countries which are

facing  the  same  problem,  some  of  which  may  already  have  progressed

significantly in this area.  

13. In particular this body of scientists should be requested to perform the

following tasks :

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(i) To  find  out  an  inexpensive  method  or  methods  of

converting saline water into fresh water.

(ii) To  find  out  an  inexpensive  and  practical  method  of

utilizing the water,  which is  in the form of ice,  in the

Himalayas.

(iii) To find out a viable method of utilizing rain water.

(iv) To utilize the flood water by harnessing the rivers so that the

excess water in the floods, may instead of causing damage, be

utilized for the people who are short of water, or be stored in

reservoirs for use when there is drought.

14. In my opinion the Central Government should constitute such a body

of  scientists  immediately and  give  them  all  the  help  failing  which  the

hardships of the people of India will further increase causing great suffering

and  social  unrest  everywhere.   The  problem brooks  no  delay  for  being

addressed not even for a day.

15. In the end I would like to quote the couplet of the great Hindi poet

Rahim:

“jfgeu ikuh jkfÂ;s]fcu ikuh lc lwu   ikuh x;s uk Åcjs] e¨rh] ekuqÔ] pwuß

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        “Rahiman paani raakhiye, bin paani sab soon           Paani gaye na oobrey, moti, manush , choon”   

…………………………..J. (Markandey Katju)

New Delhi; February 06, 2009

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