STATE OF TAMIL NADU versus STATE OF KARNATAKA AND ANOTHER

8. In the rejoinder to the statement of objection and in sur- rejoinder thereto, the parties reiterated their respective 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 Others1, 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 Another2 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 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 Another3 and Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India and Others4 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. 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 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 Orrisa3 and Tamil Nadu Cauvery4 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:- “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 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 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 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 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 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. 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 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. Nidhi Jain I.A. dismissed. STATE OF TAMIL NADU v. STATE OF KARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]