State of Tamil Nadu v. State of Karnataka and Another

37. Regarding the Construction of a reservoir of 500 Mcft storage capacity across Markandeya river referred to in para 4(v), it is submitted that the Urban Water Supply and Drainage Board has taken up the project for meeting drinking water supply to Malur, Bangarpet Kolar towns and 45 en-route village.

38. The Markandeya Project was constructed near Yargol village at an estimated cost of 240 crores. The justification for project was that drinking water is supplied from bore wells which are completely dried up. The Sate Water Quality Atlas prepared in 2002 has declared that the ground water exploitation in Malur town is about 85% classifying it as dark areas and Kolar city and Bangarpet towns where ground water exploitation as 50% to 85% which have been classified as grey area. The present project is constructed to alleviate the drinking water problems arising out of non-availability of potable ground water in bore wells. The population and the demand of water for the population at different points of time is as follows:

┌────────────────────────────────────────────────────────────────────────────────────────────────────┐
│      Sl.   Name of                  Population            Per      Demand in      Demand in        │
│      N     the town                                       Capita   MLD            Mcft (for 9      │
│      o                                                    Suppl                   months)          │
│                                                           y                                        │
│                          2001     2011    2038    2058             2038    2058   2038     2058    │
├────────────────────────────────────────────────────────────────────────────────────────────────────┤
│      1.    Kolar         113299   13846   20414   28065   100      28.16   38.7   294.9    405.6   │
│                                   2       7       3       lpcd             3      3        4       │
│      2.    Bangarpe      38684    44849   69703   95824   70       6.73    9.26   70.50    97.01   │
│            t                                              lpcd                                     │
│      3     Malur         27791    42000   50075   68841   70       4.85    6.65   50.77    69.62   │
│                                                           lpcd                                     │
│      4     Enroute       29773            53546   73751   40       4.07    5.60   42.60    58.68   │
│            Villages                                       lpcd                                     │
│                       39. So far as construction of Markandeya reservoir                           │
│                       with a capacity of 500 mcft is concerned, it is only to                      │
│                       supply drinking water to Kolar, Bangarpet and Malur                          │
│                       towns. This project is taken up by the State of                              │
│                       Karnataka through KUWS & DB. In regard to this                               │
│                       project, 70 to 75% of the work is completed. Since, it                       │
│                       is a project to supply drinking water, no permission or                      │
│                       consent is required from the State of Tamil Nadu                             │
│                       either under the 1892 Agreement or under the                                 │
│                       Agreement of 1933. Therefore, there is no basis for                          │
│                       Tamil Nadu in instituting this suit.                                         │
│                       40. An approval has been granted to construct a                              │
│                       reservoir with a capacity of 500 Mcft in order to                            │
│                       supply water to drought prone towns of Kolar,                                │
│                       Bangarpet and Malur and 45 enroute villages. This                            │
│                       project has been approved in the year 2007. The                              │
│                       estimated cost of the project is about 240 crores, out                       │
│                       of which 160 crores is the budgetary allocation of the                       │
└────────────────────────────────────────────────────────────────────────────────────────────────────┘

84. The allegation in paragraph 46 that this Hon’ble Court has original jurisdiction under Article 121 of the Constitution to entertain the present suit is not true. The allegation that the Agreement of the year 1892 binds the party States is not admitted to be true and correct. The allegation that dispute exist between the plaintiff and the defendant, which involves question of law and fact with regard to common law rights pertaining to construction of various works executed or undertaken by the 1st defendant are not admitted to be true and correct. This Hon’ble Court has no jurisdiction to entertain the present suit.”

4. In its Replication filed on 30.04.2019 to the Written Statement of the second defendant, the Plaintiff stated:- “i. The averment of the 2nd Defendant that as no request for appointment of Arbitrator was received from State Government, under Rule-IV of the 1892 Agreement, is the reason for the Central Government not being able to take action is wholly untenable. It is stated that whether Markandeyanadhi, which is a tributary of Pennaiyar river, is specifically mentioned in the 1892 Agreement or not is not relevant. Moreover, the principles envisaged in the Agreement is important, i.e., no new structure should be constructed without the concurrence of lower riparian State or without affecting the existing utilization (drinking & irrigation) in the downstream areas. The construction of a large dam across Markandeyanadhi would prejudicially affect the downstream areas in Tamil Nadu and no drop of water would flow downstream of the dam under construction. If such constructions are encouraged, the existing utilizaiton would be seriously affected. ii. The 2nd Defendant has stated that no request has been received from any State Government for constitution of Board under the provisions of River Boards Act, 1956 and for setting up of Tribunals under Act, 1956. The said contention is denied. Regulation of water of an inter-State river, is covered under Entry 56 of List I (Union List). The Defendant No.2 has failed to initiate action to stop the unilateral action of 1st Defendant from going ahead with such un-authorized diversions. The 2nd Defendant has not taken any effective action even after the representations made by the Plaintiff State were received except sending an inspection team and conducting one meeting in 2018, while the issue has cropped up in 2012 itself. iii. With regard to the contention of 2nd Defendant that no request was received from any State Government for setting up of Tribunal for adjudication of disputes relating to Inter-State river Pennaiyar under the provisions of Act, 1956, it is stated that the issue is not related to allocation of waters amongst the basin States but related to unauthorized diversions from the inter-State river and its tributary, which is a violation. However, 2nd Defendant has not considered the representations made by the Plaintiff from 2012 onwards to protect and safeguard the interest of the lower riparian State as envisaged in Clause II of Agreement, 1892 and the rights guaranteed under Article 21 of the Constitution.”

5. Replication was also filed on 07.05.2019 to the Written Statement filed by the first defendant submitting inter alia:-

6. Thereafter, IA No.95384 of 2019 has been filed by the Plaintiff seeking following directions:- “a) restrain the 1st Defendant and its instrumentalities from proceeding further with the construction of dam across Markandeyanadhi near Yargol Village; b) direct the State of Karnataka and its instrumentalities not to obstruct the natural flows to the downstream State of Tamil Nadu pending disposal of the present application; and” The application states:-

7. Statement of objection filed by the first defendant to the aforementioned interim application, states as under:-

8. In the rejoinder to the statement of objection and in sur-rejoinder thereto, the parties reiterated their respective stands.

9. We heard Mr. Shekhar Naphade, learned Senior Advocate for the Plaintiff, Mr. Shyam Divan, learned Senior Advocate for the first defendant and Mr. S. Wasim A. Quadri, learned Senior Advocate for the second defendant.

10. It was submitted by Mr. Naphade, learned Senior Advocate:- A) As laid down by this Court in State of Karnataka v. State of Tamil Nadu and Others[1], an Inter State River passing through corridors of riparian States constitutes a national asset and no single State can claim exclusive ownership of its water. However, the attempts on part of first defendant were to appropriate the water exclusively to itself. B) Though river Markandeyanadhi was not referred to in the Agreement of 1933 entered into between the erstwhile States of Madras and Mysore, going by the law laid down by this Court in State of Tamil Nadu v. State of Kerala and Another[2] a tributary would be part of the Inter State River and as such would be covered by said agreement. C) Clause 1(3) of the Agreement of 1933 permitted creation of anicuts i.e. smaller canals if no irrigation was involved. However, such provision would not apply to irrigation projects where a dam is being constructed with 36 metres of height. D) Documents at page 215-216 of the paper book show that grievance was raised by the plaintiff and request was made for full information about all the schemes in Pennaiyar basin but no requisite information was supplied. Though representations and complaints were made by the plaintiff to the second defendant, no action was taken. E) Since the Agreement of 1933 was violated by the first defendant, the second defendant ought to have interfered in the matter but there was total inaction on part of the second defendant. F) Dealing with the issue whether the matter ought to go before a Tribunal under the Indian State River Water Disputes Act, 1956 (‘the Act’, for short) reliance was placed on the decisions of this Court in State of Orrisa v. Government of India and Another[3] and Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India and Others[4] and it was submitted in the alternative that interim relief as prayed for be granted till the appropriate steps were taken by the second defendant to constitute such Tribunal.

11. On the other hand, Mr. Divan, learned Senior Advocate appearing for the first defendant submitted:a) The instant suit itself was not maintainable in view of the express mandate under Article 262 of the Constitution of India read with Section 11 of the Act. b) Agreement of 1933 would apply only in respect of irrigation projects and would not cover drinking water projects. The report of Central Water Commission (CWC) was also relied upon in support of the submission. c) The projects for supply of drinking water have been given highest priority under the National Water Policy and in any case 80% of the water supplied for drinking purposes would normally come back by return flows into the basin. d) About 75% to 80% of construction work was already completed which was undertaken after due sanctions and permissions from the concerned authorities. The steps in that behalf were undertaken from the year 2013 onwards and the instant application preferred by the plaintiff suffered from delay and laches. e) Considering the length of the Inter State River, 75% of the basin including the catchment area is in the State of Tamil Nadu and the projects undertaken by the first defendant would not cause any prejudice to the plaintiff.

12. Mr. S. Wasim A. Quadri, learned Senior Advocate for the second defendant submitted that though various communications were addressed by the plaintiff, at no stage any request was made in the prescribed form invoking the powers of the second defendant in terms of the provisions of the Act to constitute a Tribunal to consider the disputes in question.

13. The rival contentions advanced by the parties touching upon merits of the matter including maintainability of the suit will certainly be gone into after the parties are allowed opportunity to lead evidence in accordance with law and to make appropriate submissions. At this juncture we are called upon to consider whether pending consideration of the present suit, any interim directions are required to be passed.

14. From the record it is prima facie evident that the project in question was undertaken after receiving all requisite sanctions and permissions. The issue was engaging the attention of the authorities for a while; the construction work began few years back; and as of now 75% work is complete. Therefore, in our prima facie view, no case is made out for granting any interim relief.

15. We now consider the alternative submission of Mr. Naphade, learned Senior Advocate and the decisions of this Court in State of Orrisa[3] and Tamil Nadu Cauvery[4] case relied upon by him. In the first case the State had approached this Court under Article 32 of the Constitution submitting inter alia that despite several requests made by it for constituting an Inter State River Water Disputes Tribunal, there was complete inaction on part of the Central Government. The principal relief claimed in the petition was for appropriate direction to the Central Government to constitute an Inter State River Water Disputes Tribunal and pending such decision by the Central Government, interim relief was prayed for. This is clear from paragraphs 1, 2, 47, 49, 50, 51, 52 and 53 of the decision of Kabir, J. (as the learned Chief Justice then was), with whom Katju, J. concurred:-

Channel Weir and Flood Flow Canal Project on 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. …

47. 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. …

49. 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.

50. 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 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.

51. 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.

52. I, accordingly, allow the writ petition and direct the Central Government to constitute a Water Disputes Tribunal within a period of six months from the 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 River Vansadhara by the State of Andhra Pradesh for diversion of the waters of the said river which could adversely affect the supply of water from the said river to the State of Orissa.

53. 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.” The second case dealt with the maintainability of a Writ Petition by the concerned Writ Petitioners.

16. In the present case neither in the plaint, nor in the interim application any relief in the nature of directions to constitute a Tribunal under the Act is claimed.

17. We repeatedly asked Mr. Naphade, learned Senior Advocate to show any communication where the plaintiff had invoked the power of the Central Government and sought constitution of an Inter State River Water Disputes Tribunal to consider the present controversy. Mr. Naphade accepted that there was no such express communication but submitted that the request ought to be inferred from various communications addressed by the plaintiff to the Central Government.

18. It must be stated that Section 3 of the Act postulates that a request be made in such form and manner as may be prescribed, whereafter the requisite power can be exercised by the Central Government. The rules framed pursuant to rule making power conferred upon the Central Government under Section 13 of the Act also prescribe a particular form. It is not as if that there was lack of proper legal opinion in the matter. The State would normally be guided by expert legal advice in such matters. It is also possible to say that in a given case, a State may not be inclined to have any Inter State River Water Disputes Tribunal to be constituted and would therefore consciously avoid any direct request asking for such constitution of the Tribunal. There could be variety of reasons. It will not therefore be correct on our part to infer such an idea from the communications addressed by the plaintiff to the second defendant and then find second defendant to be at fault for not constituting a Tribunal under the Act.

19. In the circumstances all we can do at this stage is to permit the plaintiff to make an appropriate application invoking the powers of the Central Government in terms of the provisions of the Act and seek constitution of an Inter State River Water Disputes Tribunal. If the plaintiff is so advised, such request may be made within four weeks from the date of this order.

20. Subject to the aforesaid, we see no reason to entertain the present application. I.A. No.95384 of 2019 is therefore dismissed. Let the Suit be listed for further directions on 10th January, 2020. ………………………..J. [Uday Umesh Lalit] ………………………..J. [Vineet Saran] New Delhi; November 14, 2019.