Atma Linga Reddy And Ors vs Union Of India And Ors

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 2

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 3

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 4

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) 5

(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).

6

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 7

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 8

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 9

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 10

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 11

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."

12 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 13

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 14

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 15

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 16

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)."

17

(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, 18

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. 19

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 20

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 21

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 22

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 23

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, 24

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 25

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 26

(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 27

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, 28

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 29

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;

30

"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 31

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 32

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.

33

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 34

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 35

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 36

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 37

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 38

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 39

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, 40

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) 41

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