State of Tamil Nadu v. State of Karnataka and Another

of Karnataka to inform the State of Tamil Nadu or any o ther riparian States to utilize the waters of South Pennaiyar river basin for the purpose of drinking water. The relevant portion of the agreement of 1933 reads as under: “An anicut will include any construction of rough stone (dry) or masonry across a river either in part or full and in any direction, which will have the effect of diverting water fr om 607 the river, but the consent of the Madras Government will not be required under the agreement of 1892 for the construction of any anicut if there is to be no irrigation under it.” … 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 pr oject was that drinking water is supplied from bore wells which are completely dried up. The Sate Water Quality Atlas pre pared 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 pr oblems arising out of non-availability of potable ground water in b ore wells. The population and the demand of water for the population at different points of time is as follows: Population Demand in MLD Demand in Mcft (for 9 months) Sl. No Name of the town 2001 2011 2038 2058 Per Capita Supply 2038 2058 2038 2058 1. Kolar 113299 138462 204147 280653 100 lpcd 28.16 38.73 294.93 405.64 2. Bangarpet 38684 44849 69703 95824 70 lpcd 6.73 9.26 70.50 97.01 3 Malur 27791 42000 50075 68841 70 lpcd 4.85 6.65 50.77 69.62 4 Enroute Villages 29773 53546 73751 40 lpcd 4.07 5.60 42.60 58.68 39. So far as construction of Markandeya reservoir w ith 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 rega rd to this project, 70 to 75% of the work is completed. Since, i t 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. STATE OF TAMIL NADU v. STATE OF KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.] 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 crore s is the budgetary allocation of the State of Karnataka and the remaining 79.92 crores is from the Government of India. The project is taken up under a scheme known as UIDSSMT . Clearances have also been obtained from Government of India, Ministry of Urban Development and also from Ministr y of Environment and Forest. For the purpose of this project, 375.37 acres of land has been acquired, out of which 127.10 acres is the lands of the farmers, 153.15 acres of land is forest, for which clearance has also been obtained from the Ministry of Forest and Environment. The remaining 95.12 acres of land is t he government gomala (grazing land). As of now, more than 70% of the work has been complete. Since, it is a drinking w ater project, there is no need to obtain the consent or intimat e the State of Tamil Nadu in view of the Agreement of 1933. … 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 allegatio n that the Agreement of the year 1892 binds the party States i s 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 1 st 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 2 nd 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 wheth er Markandeyanadhi, which is a tributary of Pennaiyar river, 609 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 2 nd 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 1 st Defendant from going ahead with such un-authorized diversions. The 2 nd 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 2 nd 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 allocat ion of waters amongst the basin States but related to un - authorized diversions from the inter-State river and it s tributary, which is a violation. However, 2 nd 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 W ritten Statement filed by the first defendant submitting inter alia :- STATE OF TAMIL NADU v. STATE OF KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.] “6. It is reiterated that the Suit is maintainable as the De fendant State is a party to the Agreement. The 1 st Defendant by its suo-motu action of diverting the Pennaiyar river water directly by pumping in number of places, and also pumping the surplus waters from the tanks draining into the river to other tanks, which were not fed by the river and thereby preventing surplus flow s from the tanks flowing to the river, has deprived the flows due to the lower riparian State. Thus, the action of the 1 st Defendant in interfering with the rights of the Plaintiff State and the Suit is maintainable under Article 131, the redressal of the grie vance.” 6. Thereafter, IA No.95384 of 2019 has been filed by the Plaintiff seeking following directions:- “a) restrain the 1 st 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:- “2. It is stated that the officials of the Applicant S tate made a visit to the site on 16.05.2019 and found the following activities across Markandeyanadhi to divert water by State of Karnat aka for its use which would completely impound the natural flow s due to downstream State of Tamil Nadu. i. A massive dam construction work is going on across Markandeyanadhi at Yargol (Karnataka State) and it is not a check dam. ii. As per local enquiry, the height of the dam is about 50m. At present concrete dam is constructed to a height of about 35m and the work is in progress, the length of the dam seems to be around 400m. The left flank bund has been raised and it has almost reached the top bund level. The upstream bund revetment work is also progressing. iii. A large amount of materials collections are seen in the upstream of the dam. 611 iv. Pumping station works are progressing.” 7. Statement of objection filed by the first defendan t to the aforementioned interim application, states as under:- “8. So far as construction of Markandeya reservoir w ith a capacity of 500 mcft is concerned, it is only to supply drinking water to Kolar, Bangarpet, Malur towns and en-route 45 villages. This project is taken up by the State of Karnataka t hrough Karnataka Urban Water Supply & Drainage Board (KUWS & DB), Bangalore. In regard to this project, 70 to 75% of the work is completed. Since, it is a project to supply drinking wate r, 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 institu ting this suit. 9. 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, Malur and 45 en-route villages. This project has been approved in the year 2007 and subsequently modified Government Order was issued in 2008. The estimated cost of the project is about Rs.240 crores, out of which R s.160 crores is the budgetary allocation of the State of Karnata ka and the remaining Rs.79.92 crores is from the Government of India. The project is taken up from financial assistance of Rs .79.92 crores under Urban Infrastructure Development Schem e for Small and Medium Tanks (UIDSSMT) of Government of India, known as UIDSSMT. For the purpose of this project, 375.37 acres of land has been acquired, out of which 127.10 acres is the lands of the farmers, 153.15 acres of land is forest, for which clearance has also been obtained from the Ministry of Forest and Environment, Government of India. The remaining 95.12 acres of land is the government gomala (grazing land). As of no w, more than 75% of the work has been completed. Since, it i s a drinking water project, there is no need to obtain the consent or intimate the State of Tamil Nadu in view of the Agreement of 1933.” 8. In the rejoinder to the statement of objection and i n sur- rejoinder thereto, the parties reiterated their respectiv e stands. STATE OF TAMIL NADU v. STATE OF KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.] 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 fir st 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 ofTamil 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. 1 (2018) 4 SCC 1 (Para 446.7) 2 (2014) 12 SCC 696 613 F) Dealing with the issue whether the matter ought to go before a Tribunal under the Indian State River Wate r 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 s teps were taken by the second defendant to constitute such Tribunal. 11. On the other hand, Mr. Divan, learned Senior Ad vocate 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 give n 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 plaint iff 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. 3 (2009) 5 SCC 492 4 (1990) 3 SCC 440 STATE OF TAMIL NADU v. STATE OF KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.] 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 ma de in the prescribed form invoking the powers of the second defendant in term s of the provisions of the Act to constitute a Tribunal to consid er the disputes in question. 13. The rival contentions advanced by the parties touching upon merits of the matter including maintainability of the suit will c ertainly be gone into after the parties are allowed opportunity to lead evidenc e 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 sa nctions 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 vie w, 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 re lief 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 J ustice then was), with whom Katju, J. concurred:- “1. The State of Orissa has filed this writ petition under Art icle 32 of the Constitution of India, wherein the Government of India has been made Respondent 1 and the State of Andhra Pradesh has been made Respondent 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 615 Water Disputes Act, 1956 and thereafter, refer to it the dispute relating to the construction of Side Channel Weir and Flood Flow Canal Project at Katragada on 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 pe tition was filed by the State of Orissa for a direction to the Central Government to constitute a Water Disputes Tribunal under t he 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 13-2-2006, as to whether the State of Andhra Pradesh was justified in constructing a Side Channel Weir and Flood Flow Canal Project on River Vansadhara at Katragada, which would adversely affect the supply of water from the river to t he 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 si nce 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 St ate 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 prot ection is given till the constitution of the Water Disputes Tribuna l 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. STATE OF TAMIL NADU v. STATE OF KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.] 50. Notwithstanding the powers vested by Section 9 of the Act in the Water Disputes Tribunal to be constituted by the C entral 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 exercis e 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 referr ed 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 with in a period of six months from the date and to refer to it the d ispute 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 sai d river which could adversely affect the supply of water fr om 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 Sta te of Andhra Pradesh will maintain status quo as of date with rega rd to the construction of the side channel weir and the flood flow canal at Katragada. Once the Tribunal is constituted the p arties will be free to apply for further interim orders be fore 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 i nterim 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 communicati on but 617 submitted that the request ought to be inferred fro m 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 pr escribed, 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 th at 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 consc iously avoid any direct request asking for such constitution of the Tribuna l. There could be variety of reasons. It will not therefore b e correct on our part to infer such an idea from the communications addres sed 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 10 th January, 2020. Nidhi Jain I.A. dismissed. STATE OF TAMIL NADU v. STATE OF KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]