State of Andhra Pradesh Vs. State of
Karnataka & Ors [2000] INSC 251 (25 April 2000)
R.P.Sethi,U.C.Banerjee,V.N.Khare,G.B.Pattanaik,S.B.Majumdar
PATTANAIK, J.
The State of Andhra Pradesh has filed the
suit under Article 131 of the Constitution of India, impleading the State of
Karnataka, Union of India and State of Maharashtra as party defendants, seeking
relief of declaration and mandatory injunction on the allegation that the State
of Karnataka, in particular has made gross violations of the decision of Krishna
Water Disputes Tribunal and such violations have adversely affected the
residents of the State of Andhra Pradesh. The relief sought for in the suit are
as under:
(a) declare that the report /decision dated
24.12.1973 and the further report/deecision dated 27.5.1976 of the Krishna
Water Disputes Tribunal (KWDT) in their entirety are binding upon the three
riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union
of India; (b) declare that the riparian States are duty bound to fully disclose
to each other and also to the Union of India all particulars of all projects
undertaken or proposed after December, 1973 and May, 1976 and to direct the
defendants to ensure that execution thereof are in conformity with and do not
conflict with or violate the decisions of the KWDT and they do not adversely
affect the rights of the other riparian States; (c) declare that the party
States are entitled to utilise not more than the quantity of water which is
allocated or permitted by the decisions of the KWDT for the respective projects
of the respective party States before the Tribunal; and that any variation in
either storage or utilisation of the waters by each such state in respect of
each of such projects could only be with the prior consent or concurrence of
the other riparian States; (d) declare that all the projects executed and/or
which are in the process of execution by the State of Karnataka which are not
in conformity with and conflict with or violate the decisions of the KWDT, as
illegal and unauthorised.
(e) declare that approvals /sanctions/
clearances/ in-principle clearances granted by the Union of India on or after
KWDT decisions on 24.12.1973 and on 27.5.1976 in respect of schemes/projects/
undertaken by the Government of Karnataka are invalid and direct the Union
Government to review /reconsider all such schemes/ projects proposed /
undertaken by Karnataka, afresh, after obtaining the views thereon of the other
riparian States;
(f) declare that the State of Karnataka and
Maharashtra shall not be entitled to claim any rights preferential or otherwise
in respect of storage, control and use of waters of the inter- State river
Krishna in respect of the schemes /projects not authorised by the decision of
the KWDT; (g) declare that the Union Government is duty bound to consult all
the riparian States of Maharashtra, Karnataka and Andhra Pradesh before
according any approvals / sanctions / clearances / in-principle clearances to
any schemes / projects proposed / undertaken by any of the riparian States on
the inter-State river Krishna and direct the Union Government to act in terms
of the said declaration; (h) grant a mandatory injunction directing the State
of Karnataka to undo all its illegal, unauthorised actions regarding projects/
schemes and in particular the following projects executed by it contrary to the
decisions of KWDT so as to bring them in conformity with the said decisions:
Almatti Dam under UKP Construction of
Canals/Lifts Schemes on Almatti Reservoir.
Upper Krishna Projects in K-2 Sub-basin.
Hippargi Weir/Irrigation Schemes.
Construction of Indi and Rampur lift schemes
on Narayanpur reservoir and the canals.
(i) grant a permanent injunction restraining
the State of Karnataka from undertaking, continuing or proceeding with any further
construction in respect of the following projects: Almatti Dam under UKP
Construction of Canals/Lifts Schemes on Almatti Reservoir Upper Krishna
Projects in K-2 Sub-basin.
Hippargi Weir/Irrigation Schemes.
Construction of Indi and Rampur lift Schemes
on Narayanpur reservoir and the canals.
(j) appoint a team of experts for making a
comprehensive techno-economic evaluation and environmental impact analysis in
respect of the following projects and, pending orders of this Honble Court on
the report of the team of experts, grant an order of injunction restraining the
Defendant No. 1 State of Karnataka from proceeding with any further
construction in any of the following projects/schemes: Almatti Dam under UKP
Construction of Canals/ Lifts Schemes on Almatti Reservoir Upper Krishna
Projects in K-2 Sub-basin.
Hippargi Weir/Irrigation Scheme.
Construction of Indi and Rampur lift schemes
on Narayanpur Reservoir and the canals.
(k) to issue a permanent injunction
restraining the Defendant No. 1 State of Karnataka from growing or allowing to
grow sugarcane or raising other wet crops in the command areas falling under
the projects/schemes within the Upper Krishna Project; (l) pass a decree in
terms of prayers (a) to (k); and (m) award costs of the present proceeding in
favour of the Plaintiff;
(n) pass such further decree or decrees or
other orders as this Honble Court may deem fit in the facts and circumstances
of the case.
Though there are as many as 14 reliefs sought
for as stated above, but essentially the reliefs relate to the construction of
Almatti Dam under Upper Krishna Project by the State of Karnataka to a height
of 524.256 M. Though the averments of facts in the plaint have been made in 71
paragraphs, shorn of minute details, the same may be stated as under: That the
dispute between the three riparian States namely Maharashtra, Karnataka and
Andhra Pradesh with respect to use, distribution and control of the water of
inter- State river Krishna stood resolved by the decisions of the tribunal,
constituted under Section 4 of the Inter-State Water Disputes Act, 1956
(hereinafter referred to as the Act) by the decision rendered in 1973 and the
Further decision rendered in 1976. The said decision having been notified by
the Central Government under Section 6, became binding on all parties. All the
parties-States being constituents of the Federation of Republic of India, the
plaintiff expected that each State, while undertaking their projects for
utilisation of the quantity of water allocated in their favour by the tribunal
would consult with the other concerned States and would so use, which will not
be against the decision of the tribunal in any manner. But the State of
Karnataka has not been acting in accordance with the letter and spirit of the
decision of the tribunal and on the other hand has violated the expressed terms
and conditions of the tribunal, which compelled the State of Andhra Pradesh to
invoke the jurisdiction of the Supreme Court under Article 131 of the
Constitution. After indicating the topography of the river as well as the three
riparian States and the disputes which arose between the States that lead the
Central Government to constitute the Krishna Water Disputes Tribunal, the
plaintiff has stated that the tribunal framed seven main issues and under issue
No. II with its eight sub-issues, decided the question of equitable
apportionment of the beneficial use of the waters of the river Krishna and the
river Valley by evolving Scheme A and making the same as its Final Order or
decision, which became binding on all the parties, after the same was notified
by the Union Government under Section 6 of the Act.
It is not necessary for us to reiterate all
the facts leading to the raising of disputes and constitution of the tribunal,
which we have already narrated in judgment in O.S.1 of 1997, filed by the State
of Karnataka. The plaintiff then has averred as to how on the basis of
agreement between the parties, the 75% dependable flow at Vijayawada was found
to be 2060 TMC and while considering the case of each State for allocation of
their respective share of water in respect of the aforesaid 75% of dependable
flow, several projects in the river basin, already undertaken by the States as
well as the quantity of water required for the projects were considered by the
tribunal on the basis of which the ultimate figure of allocation were arrived
at. According to the plaint, the tribunal, while restraining the States of
Maharashtra and Mysore from using more water than allocated in their favour,
granted liberty to the plaintiff-State of Andhra Pradesh to use the remaining
water with the rider that the State of Andhra Pradesh will not acquire any
right to the user of such water except to the extent allocated to it. The
plaintiff also averred that while making allocation to the three States, no
express provisions were made for sharing of any deficiency and further the
tribunal took note of the fact that out of 100 years, deficiency may occur in
25 years. It was also averred that to relieve the State of Andhra Pradesh from
the aforesaid difficulty, the tribunal permitted the State of Andhra Pradesh to
store water in the Nagarjunasagar Dam and in Srisailam Dam and held that for
such storage, there would not be any deduction from its share out of the
dependable flow on the ground that if the water is not allowed to be stored by
the plaintiff-State, then it would flow down and get submerged in the sea.
According to the plaint, the tribunal did consider the different project
reports which had been produced before it, in relation to the Upper Krishna
Project and allowing the protected utilisation of 103 TMC, it came to the
conclusion that the demand of State of Karnataka to the extent of 52 TMC to be
utilised by Narayanpur Right Bank Canal is worth consideration. After enumerating
the different clauses of the Final Order of the tribunal in its original report
of 1973, the plaintiff has averred that though the tribunal has made allocation
enbloc in a negative form namely that the State cannot utilise more than the
allocable quantity of water in its share in any water year but the said enbloc
allocation has to be read in the light of the relevant stand of the parties
before the tribunal, the facts and figures produced before the tribunal and the
ultimate basis on which the conclusion was arrived at. According to the
plaintiff, by taking recourse to the aforesaid method, it would be crystal
clear that party- States were restrained from utilising in different sub-basins
of river Krishna within their respective territory, beyond what was considered
as the protective use and the additional quantity allocated to their share. It
has been averred in the plaint that so far as Upper Krishna Project is
concerned within the State of Karnataka, the tribunal has allocated only 160
TMC of water for being used and the construction of Almatti Dam to the height
of 524 Meters, as indicated by the State of Karnataka, would, therefore, on the
face of it, is in violation of the decision of the tribunal. After referring to
the different applications for clarifications sought for by different States
under Section 5(3) of the Act and the answer of the tribunal on the same, the
plaintiff has also averred as to how the tribunal dealt with the contentions
raised by the State of Maharashtra before it, in relation to the allocation of
52 TMC of water from Narayanpur Right Bank Canal. According to the plaintiff,
though, no doubt in the Final Order of the tribunal, there has been a mass
allocation of water in favour of the three riparian States out of the 2060 TMC
of water under 75% of dependability at Vijayawada, which figure was arrived at
by consent of the parties, but a closer scrutiny of the report in its entirety
being examined, it would be apparent that the allocation in respect of
different sub-basins had been made on the basis of projects undertaken in those
sub-basins and consequently, no State would be entitled to use the entire
quantity of water allocated in their favour in any particular sub-basin.
The plaintiff, then has averred that the post
award developments undertaken by the State of Karnataka, intending to raise the
height of Almatti Dam to 524 Meters is nothing but a gross violation of the
decision of the tribunal and, therefore, this Court should injunct the State of
Karnataka in going ahead with the Almatti Dam upto the height of 524 Meters, as
indicated in its project. The plaintiff then referred to several correspondence
made between the State of Karnataka and State of Andhra Pradesh inter se, as
well as correspondence between these States and Union Government and Central
Water Commission. It has also been averred that allowing the State of Karnataka
to construct the dam at Almatti up to a height of 524 Metres would be grossly
detrimental to the lower riparian state of Andhra Pradesh inasmuch as for three
months in a year from July to September, the State of Andhra Pradesh may go dry
and the entire crop in the State would get damaged for paucity of water. The
plaintiff also has averred in several paragraphs of the plaint, as to how the
plaintiff-State has been demanding from the State of Karnataka to have suitable
information in relation to the construction of the dam at Almatti and how the
plaintiff-State has been prevented from being favoured with any such
information. In paragraph 34 of the plaint, the plaintiff refers to the letter
addressed to the Chief Minister of Andhra Pradesh by the then Union Minister
for Water Resources, proposing to convene a meeting of Chief Ministers of the
Krishna Basin States for discussing Upper Krishna Project Stage-II and along
with the said letter, the observation of Central Water Commission, indicating
how the project at Almatti creates a physical capability of water utilisation
in excess of 173 TMC, which would be possible in view of the proposed top of
the radial gate at FRL 521 meters against the required level of 518.7 meters
for utilisation of 173 TMC of water. In the subsequent paragraph of the plaint,
it has also been indicated as to how the State of Andhra Pradesh has been
objecting to the proposals of the State of Karnataka to have the height of
Almatti dam at 524 meters under the guise of flood protection measure and then
how the plaintiff State requested the Prime Minister of India to intervene in
the matter to avoid violation of the award of the Krishna Water Disputes
Tribunal. In paragraph 39 of the plaint, it has been averred that the Union
Government as well as the Central Water Commission which are responsible for
clearance of inter-State Projects, bent upon clearing the Almatti Project up to
a dam height of 524 meters without even consulting the State of Andhra Pradesh,
though, according to the plaintiff in a Federal Structure of the Government,
each constituent State would be entitled to know the progress of any project in
relation to inter-State river, since it may have several adverse effects on the
other States. The plaintiff also averred that at the behest of the State of
Andhra Pradesh, the United Front Government, which was at the Centre,
constituted a Committee of four Chief Ministers to examine the issues relating
to the construction of Almatti Dam, which committee in turn, decided to
constitute an Expert Committee with a representative of the Central Water
Commission and Planning Commission, who, however, did not ultimately
participate in the proceedings. The said Expert Committee has found that the
proposal of the Upper Krishna Project with FRL of 524.256 meters for Almatti
Dam is under consideration and has not been approved by the Government of
India, though many canals have been designed and constructed for larger
capacity meant for future uses and it is not necessary to build a bigger
storage of 227 TMC at Almatti dam with top of shutter at 524.256 meters. The
said Committee had also observed that the FRL on the top of the shutter be fixed
for the present at 519 .6 meters and the gates be manufactured and erected
accordingly and this will be adequate to take care of the annual requirements
of 173 TMC presently envisaged under the Upper Krishna Project.
The said Committee, therefore, suggested the
restriction of the height of the dam at 519.6 meters. The plaintiff however
does not accept of the entitlement of the first defendant to use 173 TMC under
UKP and the height of the dam at 519.6 meters. From paragraph 52 onwards, the
plaintiff then has made averments indicating the negotiations and further
developments in the matter and then states that the Ministry of Power,
Government of India having indicated that in principle clearance of
construction of Upper Krishna Hydro- electric power project at Almatti,
contemplating the height of the dam at 524.256 meters was contrary to the award
of the tribunal, and therefore, the plaintiff-State lodged its objections by
letter dated 18th of October, 1996, to which the reply came that in principle
clearance is not a techno- economic clearance and it is purely an
administrative action to facilitate developmental activities. The plaintiff,
thereafter by its letter dated 18th of December, 1996, requested the Secretary,
Ministry of Water Resources, Govt. of India to ensure forthwith the publication
in the Gazette of India the decision of the Krishna Water Disputes Tribunal
i.e. the report dated 24.12.1973 and the further report dated 27.5.1976 in its
entirety. But since it became apparent that the Defendant No. 1 State of
Karnataka was not at all inclined to resolve the problem by any amicable
discussion nor did it desire any effort for mediation being undertaken by
anyone whatsoever, the plaintiff had no other alternative but to approach this
Court under Article 131 of the Constitution for declarations and injunctions
against the Defendants for protection of the rights of the plaintiff State as
well as the rights of its inhabitants flowing from the decision of the Krishna
Water Disputes Tribunal. From paragraph 65 onwards, the plaintiff has narrated
several facts constituting violations of the decision of the tribunal by the
State of Karnataka and from paragraph 69 onwards, the plaintiff has indicated
the role played by the Central Government in the matter of allowing the State
of Karnataka to raise the height of the dam, which would ultimately lead to
violation of the terms and conditions as well as the restrictions in the award
of the tribunal and which would infringe the rights of the State of Andhra
Pradesh and its inhabitants. The cause of action for filing the suit has been
indicated in paragraph 73 of the plaint, namely indulgence of the State of
Karnataka in going ahead with the Upper Krishna Project Stage I and II with the
construction of the Almatti Dam which is in violation of the decision of the
tribunal in letter and spirit.
Defendant No. 1- State of Karnataka in its
written statement, took the stand that the tribunal had not made any
project-wise allocation and on the other hand, the allocation is enbloc and as
such the question of interpreting the decision of the tribunal to the effect
that there is restriction in the user of water in any particular Basin is not
correct. It has been further averred that the State of Karnataka had
contemplated the height of the Dam at Almatti as 524.256 m in the Project
Report of 1970 itself and that Report had been filed before the tribunal and
had been marked as document MYPK-3. Neither the State of Andhra Pradesh nor any
other State had raised any objection to the said Project Report and there was
no issue before the tribunal on that score and in fact the height of the
Almatti Dam was not a matter of adjudication before the tribunal.
In this view of the matter, the
plaintiff-State is not entitled to raise that issue on the purported allegation
that it amounts to violation of the decision of the tribunal. It is also
contented that an identical issue having been raised by an individual by filing
a writ petition in the Andhra Pradesh and after dismissal of the same, the matter
having been brought to this Court and the order of the Andhra Pradesh High
Court has been affirmed, the same question cannot be re-agitated by filing a
suit by the State under Article 131 of the Constitution of India.
In respect of the decision of the Committee,
which stated about the FRL 519.6 m, it has been averred in the written
statement that the said Committee considered the height at 519.6 meters to be
sufficient, taking into account the storage capacity of the dam which will take
care of the annual requirement of 173 TMC in a water year but it did not take
into account the further water that may be needed for generation of power and
the project at Almatti with the height of the dam beyond 519.6 meters and up to
524.256 meters being only for power generation and the water thus used for
power generation being non-consumptive, there is no question of violation of
any direction of the tribunal when the State of Karnataka has decided to have
the height of the dam at Almatti at 524.256 meters. It has been specifically
averred in the written statement that the decision of the tribunal which has
been Gazetted under Section 6 of the Act has not imposed any restriction on any
State for construction of any Project and on the other hand Clause XV expressly
mentioned that : Nothing in the order of the tribunal shall impair the right or
power or authority of any State to regulate within its boundaries the use of
water, or to enjoy the benefit of water within that State in a manner not
inconsistent with the order of this tribunal and in view of such specific
provision, it is futile for the State of Andhra Pradesh to contend that the
height of the dam at Almatti should not be raised to 524.256 meters. The
defendant has further averred that the Project at Almatti has been undertaken
at huge cost exceeding Rs.6000 crores and it is not in national interest to
stop the project at this advance stage and the suit has been filed with the
design to cause delay in the completion of the projects undertaken by the State
of Karnataka. It has been reiterated that the utilisation of water would be
entirely within the allocated quantity made by the tribunal.
According to Defendant No. 1, the plaintiff
has not made out any case of breach of its legal rights and, therefore the suit
under Article 131 of the Constitution is not maintainable. The defendant also
narrated the background under which the Central Government set up the tribunal
for adjudication of the disputes between the riparian States and how ultimately
the tribunal gave its report, stating therein the facts found as well as the
decision thereon. The defendant State has also stated in the written statement
that the Almatti Dam has been designed for utilisation of 173 TMC for Upper
Krishna Project in two stages and the State had indicated that height, right
from the inception before the tribunal itself, though neither any party raised
any objection nor any issue was struck, nor any decision thereon has been given
by the tribunal itself and in this view of the matter any grievance with regard
to the height of the dam at Almatti would be a fresh water dispute and would
not come within the adjudicated dispute and decision thereon by the tribunal
itself and, therefore, the suit filed under Article 131 is not maintainable. It
has been specifically averred that the storage level at Almatti Dam from 519.6
meters to 524.256 meters is not at all an increase, particularly, when the
tribunal itself expressly noted the contemplated completion of the Almatti Dam
to the full height that is the height in Exhibit MYPK-3. The defendant also
referred to the report of the Central Water Commission dated January 30, 1994,
whereunder it has been indicated that since the power generation is
contemplated under the project at Almatti by way of utilising the extra storage
of water between 519.60 meters and 521 meters, the project may be treated as a
multi-purpose project (the level required to utilise 173 TMC of water for
irrigation is 519.60 meters). The Defendant-State of Karnataka has specifically
averred that even though the dam height is raised to this final level of
524.256 meters, the quantity of water that could be utilised for irrigation is
only 173 TMC as per allocation made in the Award and any additional quantity
over and above 173 TMC will be let out into the river after generating power.
It has also been contended that the dispute raised being a water dispute in
respect of an inter-State river, the same is governed by Article 262 of the
Constitution read with Section 11 of the Inter-State Water Disputes Act, and
therefore, suit under Article 131 is not maintainable. All allegations made by
the plaintiff about the misuse of position have been denied. It has also been
denied that neither there is any requirement of the decision of the tribunal
nor any liability which compels any State to consult another State in the
matter of planning of the projects for utilisation of its water resources and
the contention raised by the State of Andhra Pradesh in this regard is wholly
mis-conceived. The defendant further contends that the State of Andhra Pradesh
not having utilised the opportunity to seek clarification under Section 5(3) of
the Act with regard to the height of or any other specification of the Almatti
Dam is not entitled to raise this dispute in this Court by filing a suit under
Article 131 of the Constitution. The defendant-State of Karnataka reiterated
that the utilisation of water under the U.K.P.first at Almatti and later at
Narayanpur downstream, is entirely within the scope of 173 TMC and in any event
within the aggregate share of 734 TMC allocated to the defendant Karnataka and
the construction of the Upper Krishna Project at Almatti and at Narayanpur is
all consistent with the work specifications prescribed by the Expert technical
bodies in all respect including the provision for river sluices. In respect of
Clause XV of the Final Order of the tribunal, the defendant averred that the
quantity of 155 TMC considered in respect of Upper Krishna Project does not
restrict the defendant Karnataka from planning increased utilisations by taking
into account quantities of 34 TMC regeneration, 23 TMC of water by diversion of
Godavari waters and of 50% of the surplus flows becoming available after the
adoption of Scheme B devised by the tribunal. It is contended that the tribunal
having not provided for allocation or utilisation project-wise, so long as
there has been no contravention of the mass allocation made, the plaintiff has
no grievance and is not entitled to file the suit. It has been stated in the
written statement that in the re- submitted modified proposal dated 21st of
April, 1996 for Upper Krishna Project Stage II as multi-purpose project,
incorporating compliance of the various comments of CWC and also then again
proposing a FRL of 524.256 meters, clearly stating that even though the dam was
to be raised to its final level of 524.256 m, the utilisation for irrigation
would be only 173 TMC as per the readjustment of the project-wise allocations
in the Master Plan within the scope of the Scheme A allocation of 729 TMC and
as such, there has been no deviation, so far as the height of the dam at
Almatti is concerned. With regard to the allegations made in the plaint,
concerning development seeking a political solution to the dispute, the
defendant-Karnataka denies all the averments made in that respect and asserts
that execution of projects is within its entitlement and limits permitted by
the decision of the tribunal. With regard to the initiative taken by the Prime
Minister of India by holding a meeting on 10.8.1996, it has been stated that
such initiative was frustrated by the uncompromising and unreasonable attitude
of political leaders of Andhra Pradesh. So far as the Committee of four Chief
Ministers are concerned, it has been averred that the Committee of Experts,
constituted by the four Chief Ministers even did not frame any terms of
reference for consideration, though requested by the State of Karnataka and it
conducted the proceedings in a summary manner. The Chief Minister of Karnataka
in fact had apprised the Chief Minister of West Bengal about the same by letter
dated 19.12.1996 and after receipt of the so-called report of the Expert
Committee, the Chief Minister of Karnataka had conveyed its reaction to the
findings by his letter dated 25.2.1997 to which the Chief Minister of West
Bengal had replied that the points are being examined and according to the
State of Karnataka, the matter remained inconclusive and as such cannot have
any binding effect. In the written statement, the defendant No.1 also averred
that the findings of the said Expert Committee are erroneous. With regard to
the allegations in the plaint that storage of huge quantity of water by
construction of Almatti Dam would affect the interest of Andhra Pradesh and its
inhabitants, the defendant Karnataka denies the same and also stated that the
dam is intended to utilise about 173 TMC of water for irrigation and the
remaining storage water will be used for non-consumptive purpose i.e.,
production of power and, therefore, the water will flow down to Andhra Pradesh
and the said State will not be affected in any manner. With respect to allegations
in the plaint regarding incorporation of Chamundi Power Corporation Ltd., the
State of Karnataka has averred that the State is pursuing the matter before the
Central Electricity Authority in accordance with law and the question of
getting the consent of the plaintiff does not arise. So far as the assertions
made in the plaint about the cascading and far-reaching effect on the
environment is concerned, the State of Karnataka denies the same. On the
question of alleged submergence, it has been averred that the State of
Karnataka would take all adequate steps to provide compensation in accordance
with law and rehabilitate the displaced population, if any. The assertions that
Almatti Dam would render the major projects in Andhra Pradesh redundant, has been
denied. So far as the allegation regarding violation of environmental law is
concerned, it has been averred in the written statement that the applications
for environmental clearance are under process by the Government of India and
the State of Karnataka has not done anything without the appropriate clearance
from the Appropriate Authorities. According to the defendant-State of
Karnataka, the averments in the plaint are mis-leading and lacking of bona
fides and all allegations and insinuations against the Chief Minister of
Karnataka are denied. All other allegations of illegality being perpetuated by
the State of Karnataka have been denied. So far as creation of Jal Nigam is
concerned for effective execution of the Upper Krishna Project, the State of
Karnataka contends that the said Nigam is wholly Government owned company and
all its activities are controlled by the Department of Irrigation, Govt. of
Karnataka and, therefore, the allegation of the plaintiff that the State is
abdicating its responsibility for the execution of the project is incorrect and
is denied. It has been categorically averred that the Karnataka State would be
subjected to irreparable loss if the works at Almatti are stopped and the State
of Andhra Pradesh wants to reap the benefit of the liberty to use the surplus
water flowing in the river in view of the mass allocation made in favour of the
three States. It has been specifically averred that the storage of additional
water between the height of 519.6 to 524.256 meters will be used for power
production only and not for irrigation till the augmentation of waters by
Godavari diversion and surplus waters under Scheme B is made available. It has
been specifically averred as to how the Government of Karnataka has sought for
approval for taking up the cluster of hydel projects at Upper Krishna Project
in phases and how the Central Electricity Authority has accorded in-principle
clearance. At the cost of repetition, the State of Karnataka has averred that
there has been no deviation of the decision of the tribunal and the Almatti Dam
has been planned for utilisation of the allocated water by the tribunal in
favour of the State of Karnataka. According to this defendant, the State of
Andhra Pradesh being the last riparian State is receipient of abundant waters
comprising the un-utilised share of upper riparian States in addition to its
allocations made in its own favour and, therefore, no case has been made out
establishing any injurious hardships so as to entitle the State to get a
discretionary relief of injunction. The defendant also averred that the
plaintiff has not placed an iota of evidence based of any acceptable material
establishing the alleged loss of drinking water, food grains or unemployment
and all such allegations are falacious.
According to the State of Karnataka, all the
revised schemes at all relevant times had been submitted before the Appropriate
Authorities of the Central Government and projects are being taken up only
after getting clearance from the competent authorities. It has been averred at
the end that the basis of the suit being that the allocation made by the
tribunal is project-wise and the said basis being in-correct, the plaintiff is
not entitled to the reliefs prayed for by filing the suit under Article 131 of
the Constitution.
Union of India defendant no. 2 in its written
statement raised the preliminary objection about the maintainability of the
suit on the ground that the suit as framed is not maintainable in view of
Article 262 of the Constitution of India read with Section 11 of Inter-State Water
Disputes Act, 1956. Generally denying the allegations made in the plaint the
Union of India took the positive stand that Karnataka multipurpose project
Stage II which envisages generation of Hydropower is still under examination
and the project report provides for Hydropower generation by storing water at
the addition of storage space from 519.6 M to 524.256 M and it has been
indicated that after generating the Hydropower the tail race water after power
generation will be let into the river Krishna and the utilisation of river
Krishna water under UKP will be within 173 TMC. With regard to the plaint
allegation that under the Award Tribunal has allocated water projectwise, the
Union of India submitted that the allocation of water is gross allocation and
not the project wise allocation. It has been further stated that the State is
entitled to utilise the gross amount of water for any such projects and so long
as utilisation by Karnataka is within 173TMC in upper Krishna project, there is
no violation of Krishna Water Disputes Tribunal Award. It has also been
indicated that Stage I of UKP has been approved and Stage II is under various
examination and not yet been approved. So far as the plaint case that Central
Government is required to consult other States while clearing projects of one
State, it has been averred that there is no obligation on the Central
Government to consult said party State while clearing projects of other party
State of Krishna basin when they are within the framework of KWDT Award. The
financial assistance by Central Government is being given to the State in the
shape of grants and loans. So far as Almatti project in particular is concerned
the stand of the Union Government in its written statement is that UKP stage I
has already been approved and it was approved by the Planning Commission on
22nd April, 1978 under which the construction of Almatti Dam to a partial
height corresponding to FRL 512.2 m with solid spillway crest level at EL 500 m
and with 12.2 m high gates. But in view of the technical difficulty of
dismentaling and reerecting the radial gates of such height in Stage II, the
Government of Karnataka desired to do construction of Almatti dam with full
section as required for ultimate stage and solid crest upto 512 m in UKP Stage
I itself. The revised proposal of Government of Karnataka was examined by the
Central Water Commission and considered by Technical Appraisal Committee in its
20th Meeting held on 12.5.1982. The TAC recommended that the clearance of the
Government of India for raising Almatti Dam in full width upto EL 500 m may be
accorded subject to the observation that revised estimate be submitted by the
State Government.
Subsequently, the State Government came up
with modified proposals with Almatti spillway crest at EL 509 m and 15.2 high
radial gates with a view to reduce submergence under Stage I of the project.
This revised stage I estimate got the approval of the Planning Commission on
24.4.1990.
According to the written statement of the
Central Government, Stage I of UKP was duly approved by the Central Water
Commission as well as by the Planning Commission with certain modifications
enabling the State Government to take upto Stage II at later stage. It has
further been averred that the Karnataka Government has revised Upper Krishna
project Stage II (1993) as UKP Stage II Multipurpose project (1996) and that
project is under examination. The State of Andhra Pradesh has sent their
comments to the said project and various appraising agencies are checking the
design of gates from the structural aspect. But no final approval has been
given. The allegation of State of Andhra Pradesh that Central Government
adopted partisan attitude has been denied and on the other hand it has been
stated that the State of Andhra Pradesh has not been able to prove that by
constructing Almatti Dam the State of Karnataka will be utilising more water
than allocated by KWDT. It is in this context the Central Government has also
averred that the State of Andhra Pradesh is constructing Telugu Ganga Project
which is an unapproved Project. So far as the allegation in the plaint that
State of Andhra Pradesh had not been consulted before the Department of
Environment and Forest cleared the Upper Krishna Project, it has been averred
that there is no obligation on the part of Department of Environment and
Forest, Government of India to obtain the views of State of Andhra Pradesh
while clearing of the Upper Krishna Project of State of Karnataka. According to
the Central Government the Award of the Tribunal is binding on the parties and
the plaintiff has not been able to show any violation of the decision of the
Tribunal.
On behalf of Ministry of Power who is
Defendant No. 2 (C) a separate written statement has been filed giving reply to
the averments made in paragraphs 56 and 57 of the plaint and it has been
indicated that the expression In Principle clearance given by the Central
Electricity Authority to Upper Krishna Project at Almatti does not tantamount
to sanction of the project by the competent authority.
According to the said defendant while
appraising various proposals for power project received from the States due
care is taken by the Ministry of Power for proper evaluation.
The State of Maharashtra Defendant No.3 filed
a written statement fully supporting the stand taken by the State of Karnataka
and it has been averred in the written statement that the complaint of State of
A.P. proceeds on certain assumptions which are not correct. With regard to the
main question, namely, whether there was enbloc allocation or project wise
allocation the defendant State of Maharashtra categorically avers that the
Tribunal equitably allocated the waters of the river Krishna by allocating the
quantities enbloc or in mass quantities. Though it has discussed individual
projects of each State only for the limited purpose of assessing the needs of
each State in accordance with the principles of equitable distribution.
It has further been stated in the said
written statement that apart from the restrictions expressly stated in the
final order of the Tribunal which has been notified by the Central Government
no other restrictions have been imposed on the method of use by each State
within the allocated share of the State concerned and Tribunal has not put any
restriction on the storage by each State and according to Clause VII of the
final order the storage of water by each State would not be considered as use
of water by the State concerned. In the very written statement several
paragraphs of the Report of the Tribunal have been quoted to indicate that the
ultimate allocation was enbloc and not projectwise and further there has been
no restriction or restraint placed by the Tribunal with regard to storage, size
and height of dams in the Krishna Basin. The State has also referred to the
subsequent conduct, that after the submission of original report and the
decision of the Tribunal the State of Andhra Pradesh infact filed clarification
note 9 and 10 on 7.5.1975 and 8.5.1975 raising objection to the storage but
ultimately withdrew those notes and did not want any clarification on the
subject of storage which fortifies stand of the State of Maharashtra that there
is no restriction on any State in respect of storage of water within the
Krishna Basin so long as it does not exceed the enbloc allocation given by the
Tribunal. According to this defendant the relief sought for in the plaint would
tantamount to a complete re-writing of the decision of the Tribunal which would
be outside the scope of a suit under Article 131 of the Constitution. After
refuting the stand taken by the State of Andhra Pradesh in the plaint in
paragraph 16 of the written statement the State of Maharashtra submitted , that
the plaintiff does not deserve to be granted any of the prayers prayed for in
this para and the Suit should be dismissed with costs. Having filed the
aforesaid written statement on 7th July, 1997 fully supporting the stand taken
by the State of Karnataka and seeking relief of the dismissal of the suit filed
by the State of Andhra Pradesh an additional written statement was filed by the
said State on 9th April, 1999 giving a clear go bye to the earlier wirtten
statement and taking a new stand in relation to the alleged construction of
Almatti Dam with FRL RL 524.56 m. by the State of Karnataka. In this additional
written statement it has been averred that by raising the dam height at
Almatti, there is likelihood of enormous damage to private and public
properties and works and structures including archeological structures and
pilgrimage places in the State of Maharashtra. There would also be disruption
of communications, enhanced distress and damages during floods each year due to
sedimentation. It has been further averred that the details of the magnitude,
duration and extent of submergence were not clear to the State of Maharashtra
as the said submergence has not been discussed by the Tribunal itself but on
getting subsequent documents from the State of Karnataka and on ascertaining
the effect of the proposed Almatti Dam at 524.256 m it appears that there would
be large scale submergence of area in the State of Maharashtra and no State
should be allowed to have its project which will have deleterious and adverse
effect on the other State. It is in this connection in the additional written
statement it has been further averred that the said State of Karnataka has not
obtained the relevant clearance from different environment authorities and
forest authorities and even the Central Water Commission has not given the
clearance and, therefore, the State of Karnataka should be injuncted from
raising the dam height from 519.00 m. to 524.256 m. until and unless the actual
area likely to be submerged is made known after due survey.
In the written statement the adverse effect
of submergence have been indicated in different paragraphs and ultimately it
has been prayed that the prayer h, i & j sought for by the plaintiff so far
as it relates to Almatti Dam under UKP should be allowed, namely, the State of
Karnataka should be injuncted. Though the State of Maharashtra filed the
aforesaid additional written statement taking the stand totally contrary to the
stand taken earlier but no order had been passed on the same and it is only
when the hearing of this suit began the Court passed an order that without
prejudice to the contention of the State of Karnataka the said additional
written statement be taken into consideration on the basis of which an
additional issue is also required to be framed.
On the pleadings of the parties, 22 issues
were framed which are extracted hereinbelow:- 1.Whether the State of Karnataka
has violated the binding decisions dated 24.12.1973 and 27.05.1976 rendered by
the KWDT by executing the projects mentioned in para 66, 68n & 69 of the
Plaint? (A.P./KAR) 2.Has this Honble Court jurisdiction to entertain and try
this suit? (MAH.) 3.
Does the Plaintiff prove that the allocation
of Krishna Waters by the KWDT in its Final Order are specific for projects and
not enbloc as contended by the Defendant? (MAH.) 4.Does the Plaintiff prove
that the upper States are not entitled to construct project without reference
to and consent of the other States? (MAH.) 5.Whether the Plaintiff is entitled
to a declaration that all the projects executed and/or which are in the process
of execution by the State of Karnataka, and not in conformity with or in
conflict with the Decisions of the KWDT are illegal and unauthorised? (A.P.)
6.Is not the Union Government duty bound to consult all the riparian States
before according any approval/sanction/clearance in principle clearances to any
schemes, projects proposed/undertaken, by any of the riparian States on the
Inter-State river Krishna? (A.P.) 7.Whether the sanctions and the approvals
granted by the 2nd Defendant to the State of Karnataka for the projects
referred to in Issue I, without the prior concurrence of State of Andhra
Pradesh are valid and binding upon the Plaintiff?(A.P.) 8.Whether sanctions and
the approvals granted by the 2nd defendant are liable to be reviewed,
reconsidered afresh, after obtaining the views thereon of the other riparian
States?(A.P.). 9.(a) Whether the construction of the Almatti dam with a FRL of
524.256 m together with all other projects executed, in progress and
contemplated by Karnataka would enable it to utilise more water than allocated
by the Tribunal? (A.P.) (b) Whether Karnataka could be permitted to proceed with
construction of such a dam without the consent of other riparian States, and
without the approval of the Central Government? (A.P.) 10.Whether the Plaintiff
proves that the reservoir and irrigation canals as alleged in paragraph 68 of
the Plaint are oversized. If so, are they contrary to the Decision of the
Tribunal? (A.P.) 11.Whether the Plaintiff State of Andhra Pradesh proves
specific allocation/utilisation for UKP and canals as alleged? (A.P.)
12.Whether State of Karnataka is entitled to provide for any irrigation under
Almatti canals and other new projects, when no allocation is made under the
decisions of the KWDT? (A.P.) 13.Whether the Defendant State of Karnataka is
entitled unilaterally to reallocate/readjust the allocation/utilisation under
the UKP or any other project? Is concurrence of other riparian States
necessary? (A.P.) 14.Whether the Union of India can permit and/or is justified
in permitting the State of Karnataka to proceed with various projects which are
in violation of the decisions rendered by KWDT? (A.P.) 15.Whether Upper Krishna
Stage-II Multipurpose Project could be executed without the environmental
clearance under the Environment (Protection)Act,1986 and the Notification
issued by the Central Government in 1994 in exercise of its power under the
said Act and the Rules made thereunder which mandatorily requires various
analysis including dam break analysis?(A.P.) 16.Whether the acts of the State
of Karnataka adversely effect or would adversely effect the State of Andhra
Pradesh, and if so, with what consequences?(KAR) 17.Whether Hippargi was always
part of the UKP and on that basis the KWDT awarded 5 TMC utilisation thereunder
?(A.P.) 18.Whether the utilisation of water under Chikkapada Salagi, Heggur and
5 other barrages is not 33 TMC as assessed by the Plaintiff State?(A.P.)
19.Whether the cumulative utilisations in the K2 sub-basin is 173 TMC as
claimed by the State of Karnataka or 428.75 TMC as assessed by the Plaintiff
State?(A.P.) 20.Whether the State of Karnataka has violated the KWDT award by
proceeding with several new projects in the sub-basin such as K-6, K-8 and K- 9
in respect of which restrictions in quantum of utilisation have been imposed in
the final decision of the Tribunal? (A.P.) 21.Whether utilisation under Almatti
would be of the order of 91 TMC as claimed in para 66(iii) of the plaint?(A.P.)
22.To what reliefs if any, the plaintiff is entitled to?(A.P.) The additional
issue framed as 9(C), because of the additional written statement filed on
behalf of defendant no.3 is to the effect, Whether Karnataka can be permitted
to raise the storage level at Almatti dam, above RL 509.16 meters in view of
the likely submergence of territories in Maharashtra.
Before we take up the different issues framed
by the Court and answer the same in the light of the contentions raised as well
as with reference to the documents filed in support of the same it would be
appropriate for us to notice the order of this Court dated 30th September, 1997
and its effect on the ultimate decision of the suit itself On 30th of
September, 1997, this Court passed the following Order:
Sh. F.S. Nariman, learned Senior counsel for
the State of Karnataka-defendant No. 1 and Sh. T.R.
Andhyarjuna, learned Solicitor General
appearing for the State of Maharashtra- defendant No. 3 referred to the prayer
(a) (at page 72 of the Paper book) and submits that both these States namely,
Karnataka and Maharashtra accept this claim of the plaint of the State of
Andhra Pradesh and agree to the grant of relief in the suit in terms of prayer
in clause (a) as under: (a) declare that the report/decision dated 24.12.1973
and the further report/decision dated 27.5.1976 of the Krishna Waters Dispute
Tribunal (KWDT) in their entirety are binding upon the three riparian States of
Maharashtra, Karnataka and Andhra Pradesh and also the Union of India. In other
words, there is no controversy in the Suit between the plaintiff and Defendants
1 and 3 i.e. Andhra Pradesh, Karnataka and Maharashtra and that the
report/decision dated 24.12.1973 and the further report/decision dated
27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are
binding upon the three riparian States of Maharashtra, Karnataka and Andhra
Pradesh. There is thus no controversy between the three riparian States to this
extent. The learned Attorney General appearing for the Union of India submits
that he is unable to make any statement today in this behalf as he has to seek
instructions in the matter.
This statement made by the learned counsel
for the three riparian States is placed on record to indicate that a partial
decree to this extent on the basis of admission of the defendants (1 and 3,
Karnataka and Maharashtra) can be passed and therefore, there is no need to
frame any issue to cover this aspect of the Suit.
In course of hearing of the suit arguments
had been advanced on behalf of the State of Karnataka by Mr. Nariman that the
aforesaid partial decree in terms of prayer a of OS No. 2 of 1997 unequivocally
indicates that the entire report i.e. 24.12.1973 and the further report dated
27.5.1976 in entirety must be held to be binding upon three riparian States,
and that being the position, there is no logic on the part of the State of
Andhra Pradesh to resist the prayer of Plaintiff No. 1 in OS No. 1 of 1997 to
make Scheme B binding on parties which Scheme obviously form a part of the
report and the further report. Mr. Ganguli, learned senior counsel appearing
for the State of Andhra Pradesh on the other hand contended, that a prayer made
by the plaintiff has to be understood in the context of the averments made in
the plaint itself and not bereft of the same. According to Mr. Ganguli prayer a
in the case in hand, if read in the light of the averments made in the plaint
itself it would only mean that the plaintiff State having averred in the plaint
that the Tribunal had made projectwise allocation which should be read into the
final decision of the Tribunal which has been notified in the Official Gazette
by the Government of India and, therefore, the State of Karnataka is not
entitled to raise the height of the Dam at Almatti to 524.256 meters whereby it
would be able to store more than 200 TMC of water with the utilisation capacity
of about 400 TMC. It is in this context Mr. Ganguli placed before us paragraphs
3.1, 3.2 and 3.3 of the written statement to indicate to us as to how the said
defendant understood the prayer a in the plaint.
Mr. Ganguli ultimately urged that the final
order of the Tribunal can be equated with a decree in a civil suit and decree
must be consistent with the judgment and, therefore, applying the said analogy
the final order requires to be read in the light of the adjudication made by
the Tribunal in the final report. The learned counsel placed reliance on the
following decisions in support of the aforesaid contentions:- (i) Kalikrishna
Tagore vs. The Secretary of State LR 15 Indian Appeals 186 at 192.3 (ii) Law
Report 25 Indian Appeals at 107-08 (iii) 1913 Vol. 25 Madras Law Journal 24.
At the outset we are unable to accept the
contention of Mr. Ganguli that the decision of the Tribunal which is ultimately
notified under Section 6 of the Act can be held to be a decree of a suit and
the report being the judgment and, therefore, the decided case laws on which
reliance has been placed has no application at all. The inter-State Water
Disputes Act having been framed by the Parliament under Article 262 of the
Constitution is a complete Act by itself and the nature and character of a
decision made thereunder has to be understood in the light of the provisions of
the very Act itself. A dispute or difference between two or more State
Governments having arisen which is a water dispute under Section 2(C) of the
Act and complaint to that effect being made to the Union Government under
Section 3 of the said Act the Central Government constitutes a Water Disputes
Tribunal for the adjudication of the dispute in question, once it forms the
opinion that the dispute cannot be settled by negotiations. The Tribunal thus
constituted, is required to investigate the matters referred to it and then
forward to the Central Government a report setting out the facts as found by
him and giving its decision on it as provided under Sub-Section (2) of Section
5 of the Act. On consideration of such decision of the Tribunal if the Central
Government or any State Government is of the opinion that the decision in
question requires explanation or that guidance is needed upon any point not
originally referred to the Tribunal then within three months from the date of
the decision, reference can be made to the Tribunal for further consideration
and the said Tribunal then forwards to the Central Government a further report
giving such explanation or guidance as it deems fit.
Thereby the original decision of the Tribunal
is modified to the extent indicated in the further decision as provided under
Section 5(3) of the Act. Under Section 6 of the Act the Central Government is
duty bound to publish the decision of the Tribunal in the Official Gazette
where after the said decision becomes final and binding on the parties to the
dispute and has to be given effect to, by them. The language of the provisions
of Section 6 is clear and unambiguous and unequivocally indicates that it is
only the decision of the Tribunal which is required to be published in the
Official Gazette and on such publication that decision becomes final and
binding on the parties. It is not required that the report containing the
arguments or basis for the ultimate decision is also required to be notified so
as to make that binding on the parties. This being the position, it is
difficult to appreciate the contention of Mr. Ganguli that the decision of the
Tribunal as notified, is in fact a decree of a civil suit and that decree has
to be understood in the light of the judgment of the suit. We accordingly are
not persuaded to accept the submission of Mr. Ganguli on this point but, at the
same time we cannot accept the argument of Mr. Nariman that the order of this
Court dated 30th September, 1997 passed in the suit in terms of prayer a must
be held to mean that a decree is to be drawn up in OS 2 of 1997 making the
entire report and the further report binding on the parties. When a prayer is
made in the plaint the said prayer has to be understood in the light of the
assertion of facts on which the prayer has been made. The defendant State of
Karnataka understood the prayer on that basis as would appear from the
averments made in the written statement of defendant no. 1 in paragraphs 3.1,
3.2 and 3.3. The aforesaid prayer had been made for the relief that
notwithstanding enbloc allocation made in the final order of the Tribunal which
is the decision of the Tribunal but the very basis to arrive at that decision
being the projectwise allocation contained in the report the said projectwise
allocation must be read into the enbloc allocation and, therefore, there must
be restriction on the part of the State of Karnataka not to use more water in
Upper Krishna Project than the allocated quantity of 160 TMC. Thus read the
order of this Court dated 30th September, 1997, cannot be construed to mean
that a decree has to be passed making the entire report as well as the further
report of the Tribunal binding on the parties. So far as the question whether
allocation made enbloc or projectwise the same has been answered while
discussing issues nos. 1, 3 and 5 and in this view of the matter the earlier
order dated 30th September, 1997 is of no consequence in disposing of the suit
in question.
ISSUE Nos. 1, 3 and 5: Though, there are as
many as 22 issues, which have been framed and necessarily to be answered in the
suit, but in course of arguments advanced by Mr. Ganguli, the learned senior
counsel, appearing for the State of Andhra Pradesh, the entire emphasis was on
the height of Almatti Dam Stage-II at 524.256 meters, as proposed by the State
of Karnataka and as it appears from various project reports. In view of the
arguments advanced by the counsel for the parties, these three issues
essentially form the bone of contention. It is necessary to be stated that too
many issues have been framed by the three different States and Court has also
permitted such issues to be struck and most of the issues over-lap one another
and in fact have no bearing in relation to the prayer made by the plaintiff.
But instead of re-framing the issues, arguments having been advanced by the
counsel for the parties, we would deal with each of them, but with specific
emphasis on the vital issues. So far as the three issues with which we are
concerned at the moment, when read with the paragraphs of the plaint, dealing
with the same, it appears that the plaintiff Andhra Pradesh has made out a case
in the plaint that under Scheme A which is the decision of the tribunal and
which has been notified by the Central Government under Section 6 of the Inter-State
Water Disputes Act, though there has been allocation of water enbloc but on
going through the report itself and the very basis on which the mass allocation
has been quantified, it would indicate that project-wise allocation must be
read into the so-called mass allocation. This being the position, in Upper
Krishna Project, the tribunal having allocated only 160 TMC of water,
construction of Almatti Dam to a height of 524.256 meters itself constitutes an
infraction of the decision of the tribunal, and, therefore, the Court should
injunct the State of Karnataka from constructing a dam at Almatti up to the
height of 524.256 meters. The stand of the State of Karnataka in the written
statement filed as well as the stand of Union Government and State of
Maharashtra in its original written statement filed however is that, there has
been an enbloc allocation by the tribunal and consequently, there has been no
fetter on any State to utilise water up to a limited quantity in any of its
project, except those mentioned in the order of the tribunal itself and that
being the position, the plaintiff would not be entitled to an order of
injunction in relation to the construction of Almatti Dam to a height of
524.256 meters. Before we focus our attention to the evidence on record in
answering these three issues, in the light of arguments advanced by the counsel
for the parties, it must be borne in mind that injunction being a discretionary
remedy, a Court may not grant an order of injunction, even if all the three
necessary ingredients are established and those ingredients are prima facie
case of infraction of legal rights, such infraction causes irreparable loss and
injury to the plaintiff and the injury is of such nature that it cannot be
compensated by way of damages. In the case in hand, when the plaintiff has
prayed for an order of mandatory injunction to injunct the State of Karnataka
from constructing the dam at Almatti to a height of 524.256 meters and makes
out a case of infringement of legal rights of the State of Andhra Pradesh,
flowing from the decision of the Krishna Water Disputes Tribunal, which
decision has become final and binding on being notified by the Union Government
under Section 6, what is required to be established is that in fact in the said
decision of the tribunal, there has been a project-wise allocation in respect
of Upper Krishna Project and if this is established, then the further fact
required to be established is whether by construction of Almatti Dam up to a
height of 524.256 meters, there has been any infraction of the said decision of
the tribunal which has caused irreparable injury and damage to the lower
riparian State of Andhra Pradesh and the said damage cannot be compensated by
way of damages. Since the plaintiff-State has to establish all the aforesaid
requirements, so that an order of injunction, as prayed for, can be granted,
let us examine the very first ingredient namely whether under the decision of
the tribunal, there has at all been a project-wise allocation as contended by
Mr.Ganguli, appearing for the State of Andhra Pradesh or the allocation was
enbloc, as contended by Mr. Nariman, appearing for the State of Karnataka and
reiterated by Mr.Salve, the learned Solicitor General and Mr. Andhyarujina,
appearing for the State of Maharashtra. While deciding the Original Suit No. 1
of 1997, filed by the State of Karnataka, negativing the contention of the said
State to the effect that Scheme B evolved by the tribunal, whether forms a
decision of the tribunal or not, we have already recorded the finding that
Scheme B cannot be held to be the decision of the tribunal inasmuch as it is
only that order of the tribunal which conclusively decides the dispute referred
to, and is capable of being implemented on its own, can be held to be a
decision of the tribunal under Section 5(2) of the Act. In fact the plaintiff
in the present suit also bases its case on the Scheme A and contends that there
has been an infraction of the said Scheme A by the defendant-State of
Karnataka. If we examine the Final Order of the tribunal contained in Chapter
XVI of the Original Report Exhibit PK1 as well as the modified order after
answering the application for clarifications made by different States, in the
Further Report of December, 1976 in Chapter VII of Exh. PK2, which has been
notified by the Central Government under Section 6 of the Act in the Gazette of
India dated 31st of May, 1976, it is crystal clear that the allocation made,
has been enbloc and not project-wise and, therefore, there is no fetter on any
of the States in utilising water in any project to a limited extent, excepting
those contained in Clause (IX) of the decision.
The allocation made to the three States of
Maharashtra, Karnataka and Andhra Pradesh for their beneficial use has been
provided in Clause (V) and subject to such conditions and restrictions as are
mentioned in the subsequent clauses.
Clause (V) of the decision which in fact
makes the allocation, may be quoted herein below in extenso:
Clause V (A) The State of Maharashtra shall
not use in any water year more than the quantity of water of the river Krishna
specified hereunder:- (i) as from the water year commencing on the 1st June
next after the date of the publication of the decision of the Tribunal in the
Official Gazette upto the water year 1982-83 560 TMC. (ii) as from the water
year 1983-84 up to the water year 1989-90 560 TMC plus a quantity of water
equivalent to 10 per cent of the excess of the average of the annual
utilisations for irrigation in the Krishna river basin during the water years
1975-76, 1976-77 and 1977-78 from its own projects using 3 TMC or more annually
over the utilisations for such irrigation in the water year 1968-69 from such
projects.
(iii) as from the water year 1990-91 up to
the water year 1997-98 560 TMC plus a quantity of water equivalent to 10 per
cent of the excess of the average of the annual utilisations for irrigation in
the Krishna river basin during the water years 1982-83, 1983-84 and 1984-85
from its own projects using 3 TMC or more annually over the utilisations for
such irrigation in the water year 1968-69 from such projects. (iv) as from the
water year 1998-99 onwards 560 TMC plus a quantity of water equivalent to 10
per cent of the excess of the average of the annual utilisations for irrigation
in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93
from its own projects using 3 TMC or more annually over the utilisations for such
irrigation in the water year 1968-69 from such projects. (B) The State of
Karanataka shall not use in any water year more than the quantity of water of
the river Krishna specified hereunder:- (i) as from the water year commencing
on the 1st June next after the date of the publication of the decision of the
Tribunal in the Official Gazette up to the water year 1982-83 700 TMC (ii) as
from the water year 1983-84 up to the water year 1989-90 700 TMC plus a
quantity of water equivalent to 10 per cent of the excess of the average of the
annual utilisations for irrigation in the Krishna river basin during the water
years 1975-76, 1976-77 and 1977-78 from its own projects using 3 TMC or more
annually over the utilisations for such irrigation in the water year 1968-69
from such projects.
(iii) as from the water year 1990-91 up to
the water year 1997-98 700 TMC plus a quantity of water equivalent to 10 per
cent of the excess of the average of the annual utilisations for irrigation in
the Krishna river basin during the water years 1982-83, 1983-84 and 1984-85
from its own projects using 3 TMC or more annually over the utilisations for
such irrigation in the water year 1968-69 from such projects. (iv)as from the
water year 1998-99 onwards 700 TMC plus a quantity of water equivalent to 10
per cent of the excess of the average of the annual utilisations for irrigation
in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93
from its own projects using 3 TMC or more annually over the utilisations for such
irrigation in the water year 1968-69 from such projects. (C) The State of
Andhra Pradesh will be at liberty to use in any water year the remaining water
that may be flowing in the river Krishna but thereby it shall not acquire any
right whatsoever to use in any water year nor be deemed to have been allocated
in any water year water of the river Krishna in excess of the quantity
specified hereunder:- (i) as from the water year commencing on the 1st June
next after the date of the publication of the decision of the Tribunal in the
Official Gazette up to the water year 1982-83. 800 TMC (ii) as from the water
year 1983-84 up to the water year 1989-90. 800 TMC plus a quantity of water
equivalent to 10 per cent of the excess of the average of the annual utilisations
for irrigation in the Krishna river basin during the water years 1990-91,
1991-92 and 1992-93 from its own projects using 3 TMC or more annually over the
utilisations for such irrigation in the water year 1968-69 from such projects.
(iii) as from the water year 1990-91 up to the water year 1997-98 800 TMC plus
a quantity of water equivalent to 10 per cent of the excess of the average of
the annual utilisations for irrigation in the Krishna river basin during the
water years 1982-83, 1983-84 and 1984-85 from its own projects using 3 TMC or
more annually over the utilisations for such irrigation in the water year
1968-69 from such projects. (iv) as from the water year 1998-99 onwards 800 TMC
plus a quantity of water equivalent to 10 per cent of the excess of the average
of the annual utilisations for irrigation in the Krishna river basin during the
water years 1990-91, 1991-92 and 1992-93 from its own projects using 3 TMC or
more annually over the utilisations for such irrigation in the water year 1968-69
from such projects. (D) For the limited purpose of this Clause, it is declared
that :- (i) the utilisations for irrigation in the Krishna river basin in the
water year 1968-69 from projects using 3 TMC or more annually were as follows:-
From projects of the State of Maharashtra- 61.45 TMC From projects of the State
of Karnataka- 176.05 TMC From projects of the State of Andhra Pradesh- 170.00
TMC (ii) annual utilisations for irrigation in the Krishna river basin in each
water year after this Order comes into operation from the project of any State
using 3 TMC or more annually shall be computed on the basis of the records
prepared and maintained by that State under Clause XIII.
(iii) evaporation losses from reservoirs of
projects using 3 TMC or more annually shall be excluded in computing the 10 per
cent figure of the average annual utilisations mentioned in sub-Clauses A(ii),
A(iii), A(iv), B(ii), B(iii), B(iv), C(ii), C(iii) and C(iv) of this clause.
The aforesaid Clause V, no doubt is in a
negative form, prohibiting the State of Maharashtra and State of Karnataka from
using in any water year more than the water that has been allotted in their
favour respectively but by no stretch of imagination, any restriction can be
said to have been put on any of the States in the aforesaid Clause V, so long
as they do not use more than the quantity allotted in their favour in any water
year. In other words under Clause V of the decision, the State of Maharashtra
is entitled to use up to 560 TMC in any water year and the State of Karnataka
similarly is entitled to use up to 700 TMC in any water year. The language used
by the tribunal in formulating Clause V of the decision is clear and
unambiguous and as such it is difficult for the Court to read into it any
restrictions as submitted by the learned senior counsel, appearing for the
State of Andhra Pradesh.
We may mention at this stage, that the
original report and the decision of 1973 was marked as Exhibit PK-1 in OS 1/97
and the further repot and the decision of 1976 was marked as Exhibit PK-2 in OS
1/97, and those two documents having been referred to by the parties in course
of arguments as PK- 1 and PK-2. We have also in judgment referred as PK-1 and
PK-2 which were exhibited as such in OS 1/97.
Mr. Ganguli, the learned senior counsel
however contended before us that before the tribunal, each of the three
riparian States claimed water for their various projects, covering utilisation
to the order of 4269.33 TMC, as is apparent from Exhibit PKI itself and then at
a subsequent stage of the proceedings before the tribunal, all the party States
agreed that 75% dependable flow up to Vijayawada in the river Krishna is 2060
TMC, which is, therefore much less than the total demand made by each of the
States, amounting to 4269.33 TMC. The learned counsel further urged that all
the three States entered into an agreement on 7.5.1971, indicating therein that
20 of the projects in Maharashtra, 13 projects in Karnataka and 17 projects in
Andhra Pradesh should be protected and the parties also agreed to the specified
quantity of utilisation of water in respect of each of the projects which could
be treated as protected utilisation and total of such protected utilisation
came to 751.20 TMC, as is apparent from the Original Report Exhibit PKI. It is
the further contention that since in respect of one project in Maharashtra,
five projects in Karnataka and five projects in Andhra Pradesh, the parties
could not agree to the quantity of utilisation which should be protected and
all the States invited the tribunal to decide the extent of utilisation to be
protected in respect of those 11 projects and the tribunal adjudicated the
additional utilisation to the extent of 714.91 TMC in respect of 9 out of the
11 projects and thus the total protected utilisation out of the dependable flow
at 75% dependability worked out at 1693.36 TMC , which of course includes
227.25 TMC on minor irrigations. Having thus arrived at the figure of 1693.36
TMC for protected utilisation, the balance quantity out of the dependable flow
to the extent of 366.64 TMC was further distributed by the tribunal to the
extent of 50.84 TMC to Andhra Pradesh for Srisailam reservoir and Jurala
Project. Out of the remaining 315.80 TMC, taking into consideration all germane
factors, the tribunal allocated 125.35 TMC to Maharashtra and 190.45 TMC to
Karnataka. Mr. Ganguli contends that while making these allocations, so far as
Upper Krishna Project in the State of Karnataka is concerned, the tribunal
merely permitted utilisation of only 52 TMC in the Right Bank Canal of
Narayanpur in addition to the protected utilisation of 103 TMC already granted
in respect of the Left Bank Canal under the Narayanpur Canal and, therefore,
the total worked out at 155 TMC and there had been no allocation made by the
tribunal so far as Almatti Dam is concerned. At a later stage when in its
Further Report Exhibit PK2, the tribunal allocated additional 5 TMC for
utilisation under Hippargi Project, the conclusion is irresistible that in
Upper Krishna Projects in Hippargi, Almatti and Narayanpur, a total quantity of
160 TMC was allocated and this must be read into the Final Order in Clause (V),
though not specifically mentioned therein. It is in this connection, Mr.
Ganguli took us through the different pages of Exhibit PKI as well as the
plaint and the written statement of the State of Karnataka. But as has been
stated earlier, if the decision of the tribunal is its Final Order, as notified
by the Central Government in exercise of power under Section 6 of the Act, we really
fail to understand, how the aforesaid limitations can be read into the said
decision, particularly, when Clause (V) of the decision is clear and there is
no ambiguity in the same. It is undoubtedly true that while considering the
question of extent of allocation of water in favour of the three riparian
States out of 2060 TMC of water at 75% dependability, the tribunal did take
into account the different projects already undertaken by different States but
consideration of those projects is only for the purpose of arriving at the
quantity of water to be allocated and not for making any project-wise
allocation, as contended by Mr.Ganguli. In Exhibit PKI itself, the tribunal
records to the following effect : Our examination of the project reports and
other relevant documents has a very limited purpose and it is to determine what
are the reasonable needs of the two States so that an equitable way may be
found out for distributing the remaining water between the two States. It is of
course, always to be borne in mind that the allocation of waters though based
on consideration of certain projects being found to be worth consideration are
not on that account to be restricted and confined to those projects alone.
Indeed the States (and this applies to all the States) would be entitled to use
the waters for irrigation in such manner as they find proper subject always to
the restrictions and conditions which are placed on them.
This unequivocally indicates the purpose for
which the projects of different States were being examined and it is explicitly
made clear that the States should be entitled to use the waters for irrigation
in such manner as they find proper, subject, always to the restrictions and
conditions which are placed on them. Unless, therefore, any restriction or
conditions in the decision of the tribunal can be found out for utilisation of
a specific quantity of water out of the total allocated share in the Upper
Krishna Project, there cannot be any fetter on the part of the State of
Karnataka to make such user. In the decision of the tribunal, there does not
appear to be an iota of restrictions or conditions, which even can be inferred
and, therefore, the submission of Mr. Ganguli, appearing for the State of
Andhra Pradesh on this score cannot be accepted.
In the report of the Krishna Water Disputes
Tribunal Exhibit PK-1 for the purpose of allocation of water in the Krishna
Basin the Tribunal has examined each project of each of the three States and
then recorded its conclusion as to whether the project is worth consideration.
The Tribunal expressed the meaning of the expression worth consideration by
saying that the expression is used in the sense that it means the requirements
of an area in the State concerned. It would be appropriate at this stage to quote
the exact findings of the Tribunal in this regard:- In saying that the project
is worth consideration we do not wish to be understood to say that the project,
if feasible, should be adopted. Likewise when we say that the project is not
worth consideration we do not say that no water should ever be allowed for it.
If at some future date more water becomes available it is possible that more
projects may come upto the worth consideration standard. In assessing whether
the project is worth consideration or not we have taken into account the
physical characteristics of the area like rainfall etc., the catchment area,
the commanded area, the ayacut of the project, the fact whether the project is
meant for irrigating the scarcity area or not and such other facts. In other
words we determine on pragmatic considerations what needs of the States of
Maharashtra and Mysore can be satisfied so that an equitable way may be found
out for distributing the balance of the dependable flows between the two
States. It should not be taken our observations relating to the projects which
we have noted as worth consideration are to be accepted in any way as final and
binding by the Planning Commission or any other authority.
The aforesaid finding fully negatives the
contention of Mr. Ganguli, appearing for the State of A.P., that the allocation
was projectwise which can be read into the final order. Clause IX of the final
order has placed restriction on the use of water in the Krishna Basin by the
three States. The reasons for putting such restrictions appears to be that on
the main stream there has been only restriction on river Bhima whereas on the
side streams there has been restriction in case of Tungbhadra and Vedavathi
sub-basin. Even in case of sub-basin K-3 there has been restriction on the
State of Maharashtra from using more than 7 TMC in any water year from
Ghataprabha and the reason for such restriction is that the requirements of the
State of Mysore for the projects in that sub-basin may suffer.
Similarly restriction has been placed on the
State of Andhra Pradesh not to use more than 6 TMC from the catchment of the
river Koyna, the idea being that the waters of that river would reach the main
streams of river Bhima. Even while placing such restriction the Tribunal has placed
the upper limit slightly above the total requirements of that State as assessed
from the demands made which had been either protected or which have held as
worth consideration. The very fact that restrictions have been put by the
Tribunal in several sub-basins and no restriction has been put so far as
sub-basin K-2 wherein Upper Krishna Project of the State of Karnataka is being
carried on clinches the point raised by the State of Andhra Pradesh and
discussed in these three issues, namely, it is not possible to read any
restriction for quantity of user of water in Upper Krishna Project by the State
of Karnataka and so long as the total user does not exceed mass allocation, it
cannot be said that the decision of the Tribunal is being violated infringing the
rights of the State of Andhra Pradesh which can be prohibited by issuing any
mandatory injunction. After receiving the copy of the report and the decision
of the Tribunal under Exhibit PK-1 the State of Andhra Pradesh filed
application for clarification, being clarification No.4 under Section 5(3) of
the Act, requesting reduction of 1.865 TMC from the Koyna Project of State of
Maharashtra.
Having filed such application on 5th March,
1976, the learned Advocate General of the State of Andhra Pradesh did not press
the said clarification No.4 on the ground that the allocations are enbloc which
is apparent from Exhibit PK-2 dealing with clarification no.4. Having made an
unequivocal statement before the Tribunal itself that the allocations are
enbloc we fail to understand how the State of Andhra Pradesh has filed the suit
making out a case that there has been any project-wise allocation by the
Krishna Water Disputes Tribunal. The aforesaid statement of the learned
Advocate General made before the Tribunal has not been explained either in the
plaint filed by the State nor even in course of hearing of the suit, and in our
view, the State of Andhra Pradesh also fully understood that the allocations
made under Scheme A was enbloc. It further appears from Exhibit PK-2 that the
State of Andhra Pradesh did file a clarification no. 5 under Section 5(3) of
the Act praying that the maximum quantity which could be utilised in K-5 and K-
6 sub-basin of the State of Maharashtra and Karnataka should be specified and
ultimately on 23rd August, 1974, the learned Advocate General for the said
State did not press the clarification as it had no materials on record on which
he could substantiate it. The very fact that State had not filed any
clarification application so far as K-2 sub-basin is concerned, though it did
file such application in respect of sub-basin K-5 and K-6 as well as in case of
Quana Krishna Lift Irrigation Scheme unequivocally indicates that the State had
no grievance so far as the allocation enbloc made by the Tribunal and not
putting any restriction of the user in K-2 sub-basin which consists of the
Upper Krishna Project. This in our view, fully clinches the matter and the
conclusion is irresistible that under the decision of the Tribunal there has
been mass allocation and no project-wise allocation as contended by the State
of Andhra Pradesh in the suit. In the aforesaid premises, we answer the three
issues against the plaintiff and in favour of the defendants and hold that
under the decision of the Tribunal the allocation of water in river Krishna was
enbloc and not project-wise excepting those specific projects mentioned in
clauses IX and X of the decision.
ISSUE NO.2 Though this issue has been raised
at the behest of the State of Maharashtra but in view of the stand taken by the
said State in the additional written statement and the additional issues framed
thereon, the learned counsel appearing for the State of Maharashtra did not
argue the question of jurisdiction, and on the other hand contended, that the jurisdiction
of this Court in a suit under Article 131 of the Constitution should not be
restricted or narrowed down and on the other hand the Court should be capable
of granting all necessary reliefs in adjudicating the dispute raised. That
apart on the basis on which the plaintiff State filed the suit and the relief
sought for it cannot be said that the suit is not maintainable. We, therefore,
answer this issue in favour of the plaintiff.
ISSUE NOS. 4, 6, 7 and 8 These four issues
are inter-linked and have been framed in view of the positive stand taken by
the State of Andhra Pradesh that in case of an inter State river when any
project of one State is considered by the Government of India or any other
appropriate authority the other State should also be made aware of and their
consent should also be taken. Though this stand had been taken by the
plaintiff-State of Andhra Pradesh but all the three defendants refuted the
same. In course of hearing of the suit the learned counsel Mr. Ganguli has not
placed before us any material or any law which compels the concerned authority
to consult all the riparian States before sanctioning a project of one State.
In the absence of any legal basis for such stand we are not able to agree with
the stand taken by the State of Andhra Pradesh that the Central Government was
duty bound to take the consent of other States while sanctioning any project of
any of the riparian States. That apart, these issues are academic in the
context of the Upper Krishna Project of the State of Karnataka and,in
particular, the construction of the Almatti Dam. Before the Tribunal the State
of Karnataka had submitted the report of Upper Krishna Project of July 1970
which was exhibited before the Tribunal as MYPK-3 and the said document has
been marked as Exhibit PAP-42 in the present suit. The salient features of the
said project, so far as Almatti Dam height is concerned, was shown as FRL
524.256 m and top of the Dam at 528.786 m. The entire project itself being
there before the Tribunal, though the Tribunal did not consider it necessary to
discuss the project in particular in view of enbloc allocation made by it, the
grievance of the State of Andhra Pradesh that the project was being
surreptitiously constructed is devoid of any substance. We, therefore, answer
the aforesaid issues against the plaintiff.
ISSUE NO. 9 (a) (b) This issue is an
important issue in the present suit and the relief sought for essentially
depends upon the findings arrived at on this issue. The entire issue has to be
decided on the basis as to whether there exists any prohibition in the decision
of the Tribunal from constructing Dam at Almatti upto 524.256 meter or from
storing any particular quantity of water therein. And if the answer is in the
negative then the prayer for injuncting the State of Karnataka to raise the Dam
height upto 524.256 has to be rejected. If the decision of the Tribunal is
examined from the aforesaid stand point and in view of our conclusion that it
is that final order which has been notified in the Official Gazette by the
Central Government under Section 6 of the Act which is the decision of the
Tribunal, we find nothing stated therein which even can be held to be a
prohibition or restriction on the power of the State of Karnataka to have the
height of Dam upto a particular height. In this view of the matter the
plaintiffs prayer to injunct the State of Karnataka from constructing the Dam
height at Almatti upto 524.256 meter cannot be granted. The issue has two
sub-issues ;
Sub-issue a relates to the height of Almatti
Dam ;and sub-issue b being on the question whether State of Karnataka could be
permitted to proceed with the construction without the consent of the other
riparian States and without the approval of the Central Government? At the
outset it may be stated that though the State of Karnataka had produced its
project report relating to the construction of the Almatti Dam as per Exhibit
PAP-42 but neither the Tribunal had considered the same nor any decision has
been arrived at on the question of height of the said Dam. Even after the
original report and the decision being made known under Section 5(2) of the Act
as per Exhibit PK-1 the State of Andhra Pradesh also did not raise any dispute
or clarificatory application objecting to the construction of the Almatti Dam
or even to the height of such Dam under Section 5(3) of the Act. In the absence
of a decision of the Tribunal on the question of construction of Dam at Almatti
or its height and mass allocation made, being binding upon all parties after being
notified under Section 6 of the Act, the grievance relating to the construction
of Dam at Almatti or to its height would be a matter of water dispute within
the meaning of Section 2(C), in as much as it would be a matter concerning use
of water of river Krishna and, therefore, cannot be a matter for adjudication
in a suit under Article 131 of the Constitution of India. If the complaint of
the State of Andhra Pradesh is that by construction of Almatti Dam which is an
executive action of the State of Karnataka the State of Andhra Pradesh is
likely to be prejudicially affected then also on such complaint being made to
the Union Government under Section 3(a) the matter could be referred to a
Tribunal for adjudication.
But, we fail to understand how this Court
could entertain the aforesaid lis and decide the same, particularly when the
Tribunal has not focussed its attention on the same nor has made any
adjudication in respect to the construction of Dam at Almatti or its height.
Needless to mention that notwithstanding the allocation of water in river
Krishna being made enbloc no State can construct any project for use of water
within the State unless such project is approved by the Planning Commission,
the Central Water Commission and all other Competent Authorities who might have
different roles to play under different specific statutes. Under the federal
structure, like ours, the Central Government possesses enormous power and
authority and no State can on its own carry on the affairs within its
territory, particulary when such projects may have adverse effect on other
States, particularly in respect of an inter State river where each riparian
State and its inhabitants through which the river flows has its right. From the
averments made in the plaint it is crystal clear that the State of Andhra
Pradesh feels aggrieved by the proposal of the State of Karnataka to have the
Dam height at Almatti FRL 524.256 m. In the plaint itself in paragraph 51 the
plaintiff has referred to the observation of the Committee to the effect:
For required utilisation of 173 TMC at UKP
the height of the Dam at FRL 519.6 m would be adequate. The Committee referred
to in the said paragraph is Expert Committee which the four Chief Ministers had
appointed, which Committee had examined the pros and cons of the Almatti Dam
and the aforesaid views of the Expert Committee was approved by the four Chief
Ministers who had been requested by the Prime Minister of India to intervene
and find out the efficacy or otherwise of the stand of Karnataka to have
Almatti Dam upto the height of FRL 524.256 m. The said Expert Committee had
observed that the proposal of the State of Karnataka of having Upper Krishna
Project with FRL 524.256 m in Stage II at Almatti has not been approved by the
Government of India.
And it has been further observed that it
would be desirable to proceed with utmost caution in the larger interest of the
Nation to wait and watch operation of various Krishna system upstream and down
stream before embarking on creating larger storage at Almatti Dam than what is
needed to suit the prevailing conditions. We are taking note of the
observations made by the Expert Committee for the purpose that the plaintiff
having failed to establish its case for getting an injuction, would it be
appropriate for this Court to allow the State of Karnataka to have the height
of the Dam at Almatti at 524.256 m or it would be obviously in the larger
interest of the country and all the States concerned to allow the Dam upto the
height of 519.6 m and then leave it open to the States concerned to put forth
their grievances before the Tribunal to be appointed by the Central Government
for resolving the disputes relating to sharing of water in river Krishna.
Reading the plaint as a whole it appears to us that the plaintiff State had not
made any grievance for having a Dam at Almatti upto a height of FRL 519.6 m and
on the other hand, the entire grievance centers round the proposal of the State
of Karnataka to have the height at 524.256 m. The report of the Expert Committee
referred to in the plaint has been exhibited as Exhibit PAP-212 and even that
report indicates that the complaint of Andhra Pradesh was that the height of
Almatti Dam at FRL 524.256m which has not been approved as yet by the
Government of India, would adversely affect the lower riparian State of Andhra
Pradesh both in the matter of irrigation as well as generation of power. The
said report further reveals that the State of Karnataka is desirous of having
the Dam height at FRL 524.256 m so that it can store its share of water
available to it under Scheme B when it comes. It is only on fructification of
Scheme B the need for a larger storage at Almatti would arise, and therefore,
the State is planning ahead to have the height of the Dam at 524.256m. According
to the report of the said Expert Committee even if the height is allowed not
upto 524.256 m it can be allowed later only when the necessity arises and
technically it is feasible. The report also records that for utilisation of 173
TMC at Almatti and Narainpur the height of the Dam required would be 519 m and
not 524.256 m.
Thus an expert body appointed by the four
Chief Ministers of 4 different States who are not in any way connected with the
inter-State river Krishna taking into account the present need envisaged by the
State of Karnataka for utilisation of 173 TMC at Upper Krishna project and
taking into account the report submitted by Indian Institute of Science at
Bangalore did record a finding that the top of the shutters at Almatti should
be fixed at 519.6 m which will provide a storage of about 173TMC which along
with storage of 37.8 TMC at Narainpur will be adequate to take care of annual
requirement of 173 TMC envisaged under Upper Krishna Project. In view of our
conclusion in O.S. 1 of 1997 holding that Scheme B is not a decision of the
Tribunal, and as such, cannot be implemented by a mandatory order from this
Court and the stand of the State of Karnataka before the so called Expert
Committee being that they have designed the height of Almatti Dam at 524.256 m
keeping in view that in the event Scheme B fructifies the State will be able to
get the surplus water and store it as a carry over reservoir, as observed by
the Tribunal itself, notwithstanding the fact that the plaintiff has failed to
establish a case on its own for getting the relief of injunction in relation to
the construction of Almatti Dam by the State of Karnataka, it would be
reasonable to hold that though the State can have the Dam at Almatti but the
height of the said Dam should not be more than 519.6 m, particularly when the
State of Karnataka has not been able to indicate as what is the necessity of
having a height of Dam at 524.256 m when Scheme B is not going to be operated
upon immediately. The Upper Krishna Project Stage II, detailed project report
of October 1993 which has been exhibited in the present case as PAP 45 also
indicates that minimum FRL required to get 173 TMC utilisation is found to be
518.7 m. It is in that report it has been indicated that it is because of probable
maximum flood of 31000 qmx., the water level is expected to go upto 521 m and,
therefore, the proposal is to keep the height of the gate to 521 from the crest
level with 2 mts. as the gate height. It may be stated at this stage that the
height of the Almatti as approved by the Competent Authority is crest level 509
meter and it is in this context to have the height at FRL 524.256 m the State
of Karnataka has proposed to have the gate height of 15 meters. But as has been
indicated earlier, since the entire basis of the State of Karnataka to have the
height of the Dam at 524.256 m is contingent upon implementation of Scheme B of
the Tribunal thereby entitling the State of Karnataka to get its share in
excess water and continue the Almatti Dam as a carry over reservoir and since
we have decided against the State of Karnataka in O.S. 1 of 1997 which the
State had filed for implementation of Scheme B, there is absolutely no
justification for the said State to have the Dam height at Almatti of 524.256
m.
We hasten to add that at the same time there
cannot be any injunction or prohibition to the said State of Karnataka for
having the Dam height at Almatti upto 519.6m which would be in the interest of
all concerned.
Mr. Ganguli, the learned senior counsel,
appearing for the State of Andhra Pradesh submitted that the State of Karnataka
in the Project Report filed before the Central Water Commission in respect of
UKP Stage II, itself indicated that the minimum FRL required at Almatti
Reservoir is 519.60 M as per Exhibit PAP 46. In the written statement also, the
State of Karnataka also indicated that contemplated height of Dam at 524.256
meters is for additional storage, though for the purpose of generation of power
which is non-consumptive use and at a height of 524.256 meters, it would
utilise 302 TMC, which would be in excess of the enbloc allocation of 734 TMC.
Mr. Ganguli also contended that the Upper Krishna Multipurpose Stage II Project
Report of 1996 as per Exh. PAP 48, would indicate that the State has planned irrigation
from the water at Almatti which the State would receive under Scheme B being
implemented. This being the position, the very idea of having the dam height at
Almatti at FRL 526.256, is even contrary to the mass allocation made in its
favour under Scheme A and, therefore, the State should be injuncted.
We are unable to appreciate this contention
of the State of Andhra Pradesh inasmuch as on today the Central Government as
well as the appropriate authority have not sanctioned the Upper Krishna Project
Stage-II with the dam height at 524.256 meters. It would not be possible for
this Court to pronounce that there will be a violation of the mass allocation
if the State of Karnataka is allowed to have the dam height at Almatti at
524.256 meters, though as stated earlier, according to the State of Karnataka
itself for utilisation of 173 TMC, the required dam height is 519.6 meters. It
is under these circumstances, we are of the considered opinion that there
should not be any bar against the State of Karnataka to construct the dam at
Almatti upto the height of 519.6 meters and the question of further raising its
height to 524.256 meters should be gone into by the tribunal, which learned
Solicitor General agreed on behalf of Govt. of India to be constituted immediately
after the delivery of judgment of these two suits, so as to mitigate the
grievance of each of the riparian States on a complaint being made by any of
the States.. So far as sub-issue (b) is concerned, we really do not find any
substance in the contention of Mr. Ganguli, the learned counsel appearing for
the State of Andhra Pradesh. Though it may be fully desirable for all the
States to know about the developments of the other States but neither the law
on the subject require that a State even for utilisation of its own water
resources would take the consent of other riparian States in case of an
Inter-State river. So far as the second part of Issue b is concerned, the
answer is irresistible that the project of each State has to be approved by the
Central Government as well as by other statutory authorities and the Planning
Commission, but for which a State should not proceed with the construction of
such project. Issues 9(a) and (b) are answered accordingly.
ISSUE 9(C) Issue 9(C) had been framed while
allowing the additional written statement of the State of Maharashtra, which
relates to the question of submergence.
It is to be noted that in the original
written statement filed by the State of Maharashtra, a positive stand had been
taken that under the decision of the tribunal, there has been an enbloc
allocation of water in favour of each of the three riparian states and as such
there was no bar on the State of Karnataka to have a dam at Almatti up to any
height and, therefore, it was prayed that the suit filed by the Andhra Pradesh
should be rejected. In the additional written statement that was filed by the
State of Maharashtra, it has however been averred that the eventual submergence
of area within the State of Maharashtra had not been known earlier and,
therefore, neither before the tribunal nor in the original written statement
filed, any grievance had been made with regard to the construction of dam at
Almatti to a height of 524.256 meters, but since the joint study made by the
officers of both the states have brought out that a large area within the State
of Maharashtra would get submerged, if Karnataka is permitted to have the dam
height at Almatti up to 524.256 meters, the State of Maharashtra has brought
these facts to the notice of this Court in the additional written statement and
the additional issue has been framed. In the absence of any relief being sought
for in the plaint by the plaintiff against the State of Maharashtra, whether
the defendant State of Maharashtra can claim any relief against the co-
defendant is itself a debatable issue. Mr. Andhyarujina, the learned senior
counsel, appearing for the State of Maharashtra , however contended that a suit
filed in the Supreme Court under Article 131 of the Constitution is of a very
peculiar nature and the normal principle of a suit filed in an ordinary civil
Court should not apply.
According to Mr. Andhyarujina, if a dispute
between the two states involving the existence or extent of a legal right of
one State is being infringed by the action or in-action of another State, is
brought before this Court invoking jurisdiction under Article 131 of the
Constitution, this Court would be fully justified in entertaining and
adjudicating the said dispute, no matter whether the dispute is raised as a
plaintiff or a defendant in any proceeding before the Court. It is in this
context the learned counsel referred to the observations of Bhagwati J and
Chandrachud J, in the case of State of Karnataka vs. Union of India, 1978(2)
SCR 1, wherein Honble Bhagwati J had indicated that the original jurisdiction
of the Supreme Court under Article 131 on being invoked by means of filing a
suit, the Court should be careful not to be influenced by the considerations of
cause of action which are germane in suit and the scope and ambit of the said
jurisdiction must be determined on the plain terms of the article without being
inhibited by any a priori considerations. The learned Judge in the same
decision had also indicated that the very object of Article 131 seems to be
that there should be a Forum, which could resolve such disputes between two
States or the State and the Union and that forum should be the highest Court in
the land so that the final adjudication of disputes could be achieved speedily
and expeditiously without either party having to embark on a long tortuous and
time consuming journey through a hierarchy of Courts. Mr. Andhyarujina also
relied upon the observations of Bhagwati J in the aforesaid case to the effect:
What article 131 requires is that the dispute
must be one which involves a question on which the existence or extent of legal
right depends. The article does not say that the legal right must be of the
plaintiff. It may be of the plaintiff or of the defendant. What is necessary is
that the existence or extent of the legal right must be in issue in the dispute
between the parties. We cannot construe Article 131 as confined to cases where
the dispute relates to the existence or extent of the legal right of the
plaintiff, for to do so, would be to read words in the article which are not
there. It seems that because the mode of proceeding provided in Part III of the
Supreme Court Rules for bringing a dispute before the Supreme Court under
Article 131 is a suit, that we are unconsciously influenced to import the
notion of cause of action, which is germane in a suit, in the interpretation of
Article 131 and to read this article as limited only to cases where some legal
right of the plaintiff is infringed and consequently, it has a cause of action
against the defendant. But it must be remembered that there is no reference to
a suit or cause of action in Article 131 and that article confers jurisdiction
on the Supreme Court with reference to the character of the dispute which may
be brought before it for adjudication.
The requirement of cause of action, which is
so necessary in a suit, cannot, therefore, be imported while construing the
scope and ambit of Art. 131.
The learned counsel Mr. Andhyarujina, also
relied upon the observations of Bhagwati J in the said decision to the
following effect:- What has, therefore, to be seen in order to determine the
applicability of Art.131 is whether there is any relational legal matter
involving a right, liberty, power or immunity qua the parties to the dispute.
If there is, the suit would be maintainable, but not otherwise.
Reliance was also placed on the observations
of Chandrachud J, in the self same case, which may be extracted herein under:-
By the very terms of the article, therefore, the sole condition which is required
to be satisfied for invoking the original jurisdiction of this Court is that
the dispute between the parties referred to in clauses (a) to (c) must involve
a question on which the existence or extent of a legal right depends.
Chandrachud J also had categorically stated:- I consider that the Constitution
has purposefully conferred on this, Court a jurisdiction which is untrammeled
by considerations which fetter the jurisdiction of a Court of first instance,
which entertains and tries suits of a civil nature. The very nature of the
dispute arising under Article 131 is different, both in form and substance,
from the nature of claims which require adjudication in ordinary suits.
Mr. Andhyarujina, also referred to the
comments of Mr. Seervai in his book, wherein the author has said that it is
reasonable to hold that the court has power to resolve the whole dispute,
unless its power is limited by express words or by necessary implications and
the Supreme Court would have the power to give whatever reliefs are necessary
for enforcement of a legal right claimed in the suit, if such legal right is
established. Mr. Andhyarujina also contended that once the grievance of the
State of Maharashtra having brought forth before the Supreme Court in a pending
proceeding under Article 131 of the Constitution, the jurisdiction having been
invoked by the State of Andhra Pradesh, the Court has ample power under Article
142 of the Constitution and for doing complete justice between the parties, the
Court would not be bound by the provisions of any procedure and can make a
departure of the same. It is in this context, reliance was placed on the
observations made by the Supreme Court in the case of Delhi Judicial Services
vs. State of Gujarat, 1991(4) SCC 406, whereunder this Court has observed as
follows:- No enactment made by Central or State legislature can limit or
restrict the power of this Court under Article 142 of the Constitution, though
while exercising power under Article 142 of the Constitution, the Court must
take into consideration the statutory provisions regulating the matter in
dispute. What would be the need of complete justice in a cause or matter would
depend upon the facts and circumstances of each case and while exercising that
power the Court would take into consideration the express provisions of a
substantive statute. Once this Court has taken seisin of a case, cause or
matter, it has power to pass any order or issue direction as may be necessary
to do complete justice in the matter.
Mr. Andhyarujina submitted that the
likelihood of submergence within the State of Maharashtra on account of height
of dam at Almatti being raised to 524.256 meters, was disclosed only during the
pendency of the present suit and the State of Karnataka itself in its letter
dated 10th of August, 1998 had communicated to the State of Maharashtra that
the State need not approach the Court of law on this issue as the matter can be
resolved amicably. According to the learned counsel, the State of Karnataka too
agreed to carry out actual field surveys and calculations to determine the
extent of submergence under the directions of Central Water Commission in its
meeting dated 22.2.1999 and those studies are still under progress and further
the Supreme Court itself had passed an order of status quo relating to the
height of Almatti Dam by order dated 2.11.1998 and consequently, the State of
Maharashtra never thought it fit to file an independent suit, invoking the
jurisdiction of the Court under Article 131. But the State of Karnataka having obtained
the liberty from this Honble Court to proceed further with the installation of
the assembly of the gates by order dated 4.11.1998 and the said State of
Karnataka refusing to give an undertaking to the State of Maharashtra not to
raise the height of the Almatti Dam beyond the present level of 509 meters, the
State of Maharashtra was compelled to put forth its grievance on the question
of likely submergence of its territory and has prayed for the relief of
injunction against the State of Karnatka for raising the dam height up to
524.256 meters.
Mr. Andhyarujina also submitted that the
exact extent of area to be submerged in the event the Almatti Dam is allowed to
be constructed upto 524.256 meters, has not yet been ascertained and surveys
are still on, but there cannot be any doubt that a large scale of the area
within the State of Maharashtra would get submerged. Mr. Nariman, the learned
senior counsel, appearing for the State of Karnataka did not seriously dispute
the right of a co-defendant like State of Maharashtra to put forth the
grievances so as to get relief against another co-defendant, though he
undoubtedly, submitted that in the event, the State of Maharashtra was allowed
to have the additional written statement and an adjudication of the additional
issues framed, the State of Karnataka should have been given an opportunity,
putting forth its case. He however contended that the dispute relating to
submergence of territory of Maharashtra on account of the height of the dam at
Almatti being raised to 524.256 meters, cannot be a matter of adjudication in a
suit under Article 131, since the State of Maharashtra had not raised the
dispute before the tribunal itself, even though the Project Report submitted by
the State of Karnataka before the tribunal indicated the height of the dam at
524.256 meters. According to Mr. Nariman, such a dispute would be a fresh water
dispute and would not be a part of adjudicated dispute and as such under
Article 131 of the Constitution this dispute cannot be entertained and decided
upon by this Court. Mr. Nariman also contended that the materials on record do
not establish or do not help the Court to come to a positive finding that in
the event, the Almatti Dam is raised to 524.256 meters, a large extent of the
State of Maharashtra would get submerged inasmuch as the submergence, if any
and the flow back, if any, would be in the river itself and not any territory
beyond the river.
Mr. Nariman further urged that the State of
Maharashtra did anticipate submurgence of its territory as would appear from
its stand before the tribunal which is apparent from paragraph 6.3.1(k) of Exh.
MRK-1. It is true, according to the learned counsel that the tribunal did not
consider the said question but after the Original Report was submitted,
Maharashtra could have filed an application under Section 5(3) of the Act,
seeking clarifications on the question of submergence but, that was not
admittedly done, which would indicate that it had no grievance on the question
of submergence. Having examined the rival contentions on this issue, we have no
hesitation to hold that the issue must be answered against the State of
Maharashtra.
It is no doubt true that the jurisdiction of
the Court in a suit under Article 131 of the Constitution is quite wide, which
is apparent from the language used in the said article and as has been
interpreted by this Court in the two cases already referred to (see 1978 (2)
SCR 1 and 1978 (1) SCR 64). It is also true that Article 142 confers wide
powers on this Court to do complete justice between the parties and the Court
can pass any order or issue any direction that may be necessary, but at the
same time, within the meaning of Article 131, the dispute that has been raised
in the present suit is between the State of Andhra Pradesh and State of
Karnataka and question, therefore, would be whether it involve any existence or
extent of a legal right of such dispute. In answering such a dispute, it may be
difficult to entertain a further dispute on the question of submergence as raised
by the State of Maharashtra, a co-defendant. But in view of the stand taken by
Mr. Nariman, without further delving into the matter and without expressing any
final opinion, whether such a stand, as the one taken by Maharashtra is
possible for being adjudicated upon, we would examine the merits of the said
contention. A bare perusal of the report of the tribunal setting out the facts
as found by it and giving its decision on the matters referred to it as per
Exh.PK1 as well as the Further Report of the said tribunal, giving explanation
to the application for clarifications filed by the different States, as per
Exh. PK2, we find that the question of submergence within the territory of the
State of Maharashtra on account of Almatti Dam in the State of Karnataka has
not at all been discussed nor any opinion has been expressed thereon. The
tribunal having given its decision on the question of sharing of the water in
river Krishna on enbloc allocation basis, if the user of such water in a
particular way, becomes detrimental to another State, then such a grievance
would be a fresh dispute within the meaning of Section 2(C) read with Section 3
of the Act and it cannot be held to be an adjudicated dispute of the tribunal.
We have already indicated that it is only an adjudicated dispute between the
States on which a decision has been given by a tribunal constituted under
Section 4 of the Act by the Government of India, can be a subject matter of a
suit under Article 131, if there is any breach in implementation of the said
decision of the tribunal. But a dispute between the two states in relation to
the said Inter- State river arising out of the user of the water by one State
would be a fresh water dispute and as such would be barred under Article 262
read with Section 11 of the Inter-State Water
Disputes Act,
1956. The question of submergence of land pursuant to the user of water in
respect of an Inter-State river allocated in favour of a particular State is
inextricably connected with the allocation of water itself and the present
grievance of the State of Maharashtra would be a complaint on account of an
executive action of the State of Karnataka within the meaning of Section 3(A)
and also would be a water dispute within the ambit of Section 2(C) and,
therefore, it would not be appropriate for this Court to entertain and examine
and answer the same. We do appreciate the concern of the State of Maharashtra,
when it comes to its knowledge that there would be large-scale inundation and
submergence of its territory if the height of Almatti Dam is allowed to be
raised to 524.256 meters, as per the latest Project Report of the State of
Karnataka, but such concern of the State of Maharashtra alone would not be
sufficient for this Court to decide the matter and issue any order of
injunction as prayed for in the additional written statement filed by the State
of Maharashtra and on the other hand, it would be a matter for being agitated
upon before a tribunal to be constituted by the Govt. of India in the event, a
complaint is made to that effect by the State of Maharashtra. We also do not
find sufficient materials in this proceeding before us to enable this Court to
come to a positive conclusion as to what would be the effect on the question of
submergence, if the height of the dam at Almatti is allowed to be constructed
up to 524.256 meters inasmuch as, according to the State of Maharashtra, the
joint surveys are still on. It is too well settled that no Court can issue an
order of mandatory injunction on mere apprehension without positive datas about
the adverse effects being placed and without any definite conclusion on the
question of irreparable injury and balance of convenience. Then again, while
allowing a particular State to use the water of an inter- State river, if the
manner of such user really submerges some land in some other State, then the
question has to be gone into as to what would be the amount of compensation and
how the question of rehabilitation of those persons within the submerged area
can be dealt with which really is an aspect of the doctrine of equitable
apportionment and all these can be gone into, if a complaint regarding the same
is made and the Government of India appoints a tribunal for the said purpose.
But these things cannot be gone into, in a suit filed under Article 131 as a
part of implementation of an adjudicated dispute of a tribunal. It is also
surprising to note that even though the Original Project Report of 1970 in
relation to Almatti Dam had been produced before the tribunal, which was
adjudicating the disputes raised by different States, yet the State of
Maharashtra never thought of the question of submergence and never attempted to
get that question decided upon. In the aforesaid premises, howsoever wide the
power of the Court under Article 142 of the Constitution may be, we do not
think it proper to entertain the question of submergence, raised by the State
of Maharashtra in its additional written statement and decide the question of
injunction, in relation to the height of Almatti Dam on that basis. Issue 9 (c)
is accordingly decided against the State of Maharashtra.
It would also be appropriate to notice at
this stage another argument advanced by Mr. Andhyarujina, the learned senior
counsel appearing for the State of Maharashtra, to the effect that in view of
Clause XV of the decision of the Tribunal each State is entitled to use water
allocated in their favour within its boundary, the moment by user of such water
by one State, any territory of another State get submerged then it would be a
violation of the decision of the Tribunal contained in Clause XV, and
therefore, the said State should be injuncted from such user. Clause XV of the
decision reads thus:- Nothing in the order of this Tribunal shall impair the
right or power or authority of any State to regulate within its boundaries the
use of water, or to enjoy the benefit of water within that State in a manner
not in consistent with the order of this Tribunal.
The aforesaid Clause does not in any way
interfere with the rights of a State from using the water allocated by the
Tribunal within its boundaries nor is this Clause capable of being construed
that if any submergence is caused in any other State by such user, then the
user becomes in consistent with any order of the Tribunal. Mr.
Andhyarujinas entire argument is based upon
the expression regulate within its boundary but that expression applies to the
use of water or enjoys benefits of water within that State. Since the question
of submergence of any other State by the user of water by another State
allocated in its favour is not a subject matter of adjudication by the Tribunal
and in fact the Tribunal has not expressed any opinion on the same it would be
difficult for us to hold that submergence ipso facto even if admitted to be any
within the State of Maharashtra by user of water by the State of Karnataka at
Almatti can be held to be in consistent with the order of Tribunal. In this
view of the matter we are unable to accept the submission of Mr.
Andhyarujina, learned senior counsel
appearing for the State of Maharashtra that the user of water by the State of
Karnataka by constructing a Dam at Almatti is in consistent with Clause XV of
the decision of Tribunal. Issue 9(C), therefore, is answered against the State
of Maharashtra.
ISSUE NO. 10 The aforesaid issue has been
framed in view of the averments made in paragraph 68 of the plaint. In the aforesaid
paragraph of the plaint the plaintiff has indicated the figure in terms of
acreage of land planned to be irrigated by different projects and excess
utilisation of the water beyond the allocation made by the Tribunal in respect
of different projects. The plaintiff obviously is under a misconception that in
the decision of the Tribunal there has been a projectwise allocation of water
in respect of different projects in different States. We have already
considered the matter at length and have come to the conclusison that the
allocation was made enbloc and not projectwise and as such, the question that
construction of oversized reservoir at Almatti is contrary to the decision of
the Tribunal does not arise. Besides Clause VII of the decision of the Tribunal
indicates as to how use of water in a water year will be measured and it
stipulates that while use shall be measured by the extent of depletion of the
waters of the river Krishna in any manner whatsoever including losses of water
by evaporation and other natural causes from man made reservoirs and other
works without deducting the quantity of water which may return after such use
to the river, but so far as water stored in any reservoir across any stream of
the Krishna river system is concerned, storage shall not of itself be reckoned
as depletion of the water of the stream except to the extent of the losses of
water from evaporation and other natural causes from such reservoir. The water
diverted from such reservoir for its own use, however, has to be reckoned as
use by that State in the water year. In view of this decision of the Tribunal
assuming the State of Karnataka has the potentiality of storage of water at
Almatti, in the absence of any materials placed by the plaintiff to indicate as
to any diversion from such reservoir by the State of Karnataka for its own use,
it is not possible to come to a conclusion that there has been a violation of
the decision of the Tribunal by the State of Karnataka by having potentiality
of storage of water at Almatti, as contended by the plaintiffs counsel. It is
in this connection it is worthwhile to notice that after submission of the
report and the decision in the year 1973 as per Exhibit PK-1 the Government of
India had filed the application for clarification which was registered as
Reference No. 1 of 1974 by the Tribunal and Clarification 1(b) was to the
following effect :- While the Tribunal have laid down restriction on the use of
water in certain sub-basins as well as the total use by each State, there may be
locations where huydro power generation (within the basin) may be feasible at
exclusively hydro-sites or at sites for multi-purpose projects. At such sites,
part of the waters allocated to the States, as also water which is to flow down
to other States could be used for power generation either at a single power
station or in a series of power stations. The Tribunal may kindly give guidance
as to whether such use of water for power generation within the Krishna basin
is permitted even though such use may exceed the limits of consumptive use
specified by the Tribunal for each State or sub- basin or reach, and if so,
under what conditions and safeguards.
The State of Andhra Pradesh to the aforesaid
application for clarification submitted two Notes Nos. 9 and 10 before the
Tribunal on 7th May, 1975 and 8th May, 1975. In this note it was specifically
pleaded that the Tribunal may be pleased to explain that the Upper State have
no right to store water in excess of share allocated to them and in a manner
which will affect the right of the State of Andhra Pradesh in the dependable
flow. Several grounds had been advanced by the State of Andhra Pradesh as to
why such guidance is needed, particularly when under Scheme A allocation there
has been no express provision for sharing of deficiency. The Tribunal
considered the same and ultimately noted in its further report under Exhibit
PK-2 that the State of Andhra Pradesh withdrew the said note and consequently
no ground for any further clarification. A note having been submitted by the
State of Andhra Pradesh seeking a clarification for fixation of a limit in the
matter of storage of water by the upper riparian States and then ultimately
having withdrawn the same the present grievance that construction of large
sized Dam at Almatti by the State of Karnataka would adversely affect the State
of Andhra Pradesh and its right could be infringed is devoid of any substance.
The issue is accordingly answered against the plaintiff.
ISSUES NO. 11 & 12 :
These two issues center round the same
question as to whether there was any specific allocation or utilisation at
Upper Krishna Project and whether providing for irrigation under Almatti Canal
is contrary to the decision of the Tribunal since no allocation for irrigation
has been made thereunder. We have already discussed the relevant materials
placed by the State of Andhra Pradesh as well as the decision of the Tribunal
and we have come to the conclusion that the plaintiff the State of Andhra
Pradesh, has utterly failed to establish that infact there was any specific
allocation by the Tribunal in respect of Upper Krishna Project or the Almatti
Reservoir and on the other hand, the allocation was enbloc making it clear and
unambiguous that States can utilise the quantity of water allocated in their
favour within their territory. This being the position we have no hesitation to
answer these two issues against the plaintiff State Andhra Pradesh and we hold
that the plaintiff has failed to produce any materials in support of the
aforesaid two issues. These two issues accordingly are answered against the
plaintiff.
ISSUE NO.13 So far as this issue is concerned
the question of entitlement of the State of Karnataka to reallocate or
re-adjust utilisation under UKP or any other project unilaterally does not
arise at all. If the Tribunal would have made any projectwise allocation and
would have restricted the user of water under UKP to any particular quantity
then the question of re-allocation by the State of Karntaka on its own would
have arisen but the Tribunal not having made any allocation in respect of the
Upper Krishna Project which includes Almatti and having made an enbloc
allocation so long as the total user by the State of Karnataka does not exceed
the enbloc allocation in its favour it cannot be said that there has been any
violation by the State of Karnataka by planning to use any particular quantity
of water at Almatti. Then again the question of getting concurrence of other
riparian States, as has been raised by the State of Andhra Pradesh is wholly
misconceived. Neither there exists any law which compels any State to get the
concurrence of other riparian States whenever it uses water in respect of
inter-State river nor the decision of the Tribunal which allocates the water in
the Krishna Basin on the basis of 75% dependability which figure was in turn
arrived at by an agreement of parties puts any condition to have the
concurrence of other riparian State. In this view of the matter without further
dilating on this issue, we answer the same against the plaintiff.
ISSUE NO. 14 The aforesaid issue has been
raised on the hypothesis that the Union of India is going to sanction different
projects within the State of Karnataka which are in violation of the decision
of Krishna Water Disputes Tribunal. As has been indicated earlier, so far as
the Upper Krishna Project is concerned, the Government of India has approved
the Dam height at crest level of 509 meters.
The subsequent revised project submitted by
the State of Karnataka in 1993 and re- submitted in 1996 are still under
consideration and no final decision has been taken thereon.
The Union of India in its counter affidavit
has categorically refuted the allegations made by the State of Andhra Pradesh
in this regard and on the other hand, it has been averred that State of Andhra
Pradesh is going ahead with some project not sanctioned by the Union
Government.
In course of hearing Mr. Ganguli, learned
Senior counsel appearing for the State of Andhra Pradesh, has not produced any
materials in support of the aforesaid stand pertaining to issue no. 14. We,
therefore, decide the said issue against the plaintiff.
ISSUE NO.15 The aforesaid issue has been
framed on the allegation of the plaintiff that the State of Karnataka is likely
to execute the Upper Krishna Stage II multipurpose project without getting the
environmental clearance under the Environment Protection Act as well as in
violation of the Notification issued by the Central Government in exercise of
its power under the same Act and the Rules made thereunder.
Under Article 256 of the Constitution it is
an obligation for the States to exercise their power ensuring compliance with
laws made by Parliament and even it enables the Union Government to give such
direction to a State as may be necessary for that purpose. In a federal
structure like ours, the Constitution itself maintains balance by distributing
powers between the Centre and the States and by conferring power on the Central
Government to regulate and to issue directions whenever necessary. The several
provisions of the Constitution have been tested in the last 50 years and there
is no reason to conceive that any State will force ahead with its project
concerning user of water in respect of Inter State reservoir without getting
the sanction/concurrence of the Appropriate Authorities and without compliance
with the relevant statutes or laws made by the Parliament. It is a common
knowledge that the large scale projects planned by each of these States, are
submitted to the Planning Commission for its approval and for getting financial
assistance. Such projects are then examined by different authorities and it is
only after getting approval of the Planning Commission the same is submitted to
the appropriate departments of the Government of India where again all the
formalities are scrutinised and final sanction or permission is granted. So far
as user of water in respect of an Inter State Reservoir is concerned, the plans
are also examined by the Central Water Commission, who is an expert body and
the views given by such Commission also is taken into consideration by the
Government of India.
This being the entire gamut of procedure we
really fail to understand on what basis the State of Andhra Pradesh has made
the allegation and the issue has been struck in that respect. Needless to
mention that every such projects whether being executed in the State of
Maharashtra or Karnataka or Andhra Pradesh must be approved by the appropriate
authority of the Government of India and necessarily, therefore, before any
approval is accorded, the project must be found to have complied with all the
relevant laws dealing with the matter. It has not been placed before us that
the State of Karnataka has carried out any project in contravention of the
provisions of any particular law made by Parliament or in contravention of any
direction issued by the Government of India. This issue accordingly, in our
opinion, is pre-mature. But we hasten to add that all the projects of different
States concerning user of water available to them in respect of an Inter State
River must be duly sanctioned by the Appropriate Authorities of the Government
of India after proper scanning and it is only then the State would be entitled
to carry out the same. The issue is answered accordingly.
ISSUE NO.16 If the issue in question is
examined in relation to the construction of Almatti Dam, which in fact is the
bone of contention in the suit itself, we have not been able to find out as to
how the State of Andhra Pradesh has been or would be adversely affected or what
would be the consequences thereon. When a plaintiff wants to seek a relief of
injunction by the action or inaction of the defendant on the ground that such
action or inaction has been grossly detrimental to the interest of the
plaintiff State and has infringed the rights of the plaintiff State then in
such a case it is obligatory for the plaintiff to put materials on record and
establish the necessary ingredients to enable the Court to come to the
conclusion that by such action or inaction of the defendant the plaintiff has
suffered irreparable damages . When we examine the averments in the plaint as
well as the documents sought to be relied upon by the plaintiff on this score,
we find that there exists no materials on the basis of which it is possible for
a Court to come to a conclusion that on account of the construction of Almatti
Dam within the State of Karnataka the lower riparian State the plaintiff has
been adversely affected or is likely to be adversely affected. The complaint
and grievance of the plaintiff State is rather imaginary than real and on the
records of this proceedings no materials have been put forth to enable the
Court to come to a conclusion on the question of so-called adverse effect on
the State of Andhra Pradesh on account of the construction of Dam at Almatti.
Mr.
Ganguli, learned Senior Counsel appearing for
the State of Andhra Pradesh referred to the written memorandum furnished to the
Committee by the State of Karnataka wherein the said State had unequivocally
admitted that the additional storage in Almatti will cause a temporary
reduction in quantum of flows going to Andhra Pradesh for a period of about
three months during August to October which is made good later on.
According to the learned counsel since those
three months are vital for the crops in the State of Andhra Pradesh the State
will sustain irreparable damages and, as such on the admission of the State of
Karnataka a finding could be arrived at. At the outset we must state that the
written memorandum furnished by the State of Karnataka cannot be read in
isolation by spinning out a particular sentence and must be read as a whole.
Thus read we do not find any admission on the part of the State of Karnataka
indicating any reduction of flows to the State of Andhra Pradesh. Mr.
Ganguli also pointed out to Clause XV of
Scheme B whereunder the Tribunal itself had come to the conclusion about the
possibility of water shortage and had empowered the concerned authority to make
necessary adjustment. But what has been stated thereunder is in relation to the
adoption of Scheme B which has not been possible on account of lack of
sincerity of the State of Andhra Pradesh and even thereunder the Krishna Valley
Authority has been empowered as often as it thinks fit to determine the
quantity of water which is likely to fall to the share of each State and adjust
the uses of the authorities in such a matter so that by the end of water year
each State is enable, as far as practicable, use the water according to their
share. We need not further examine this aspect particularly when Scheme B has
not been operative so far and even this Court has refused to issue any
mandatory injunction for adoption of Scheme B in OS 1 of 1997 filed by the
State of Karnataka. In the aforesaid premises, we do not have enough materials
to come to the conclusion that the construction of Almatti Dam by the State of
Karnataka has in any way affected or likely to affect the State of Andhra
Pradesh in any manner and consequently the said issue must be answered against
the plaintiff.
ISSUE NO. 17 - Under this issue, the question
that arises for consideration is whether by the decision of the Krishna Water
Disputes Tribunal, only 5.00 TMC was awarded for utilisation at Hippargi. While
answering Issue No. 3, we have already held that the tribunal only made enbloc
allocation and not any specific allocation for specific projects, excepting
those mentioned in Clause (IX) and under Clause (IX) so far as Hippargi is
concerned, coming under K2 sub-basin, the same does not find mention therein.
In this view of the matter, the said issue is answered against the plaintiff.
ISSUE NO. 18- The aforesaid issue has been
framed on the basis of averments made in paragraph 66(v) and paragraph 68(b)
item No. 4. The averment in paragraph 66(v) is on the basis of Newspaper Report
and the averment made in paragraph 68(b) item No. 4 is the own estimation of
State of Andhra Pradesh. Defendant No. 1- State of Karnataka denies the
contents of the averments in the plaint vide paragraph No. 12.88 and paragraph
No. 12.111. The counsel appearing for the State of Andhra Pradesh also did not
place any material in support of the aforesaid issue in course of the arguments
and the averments in the plaint having been denied in the written statement, the
issue in question must be answered against the plaintiff.
ISSUE NO. 19- Though, the plaintiff-State of
Andhra Pradesh on its own estimation, has made an averment in paragraph 68(b)
to the effect that the plan utilisation by the State of Karnataka in K2 sub-basin
is 428.75 TMC on the basis of which the aforesaid issue has been framed, but no
positive datas have been placed before us to come to the aforesaid conclusion.
On the other hand, the State of Karnataka in its written statement has asserted
that under Upper Krishna Project, the utilisation would be to the tune of 173
TMC and this is apparent from several documents placed before the tribunal as
well as in this proceeding In this view of the matter, we answer this issue by
holding that the plaintiff has failed to establish that the cumulative
utilisation in K2 sub-basin of the State of Karnataka would be to the tune of
428.75 TMC. At any rate, since we have already held that the allocation was
enbloc and there is no restriction for utilisation in K2 sub-basin in the
decision of the tribunal. The issue really does not survive for consideration.
The issue is answered accordingly.
ISSUE NO. 20- This issue relates to the
decision of the tribunal in Clause (IX), under which Clause, restrictions have
been put to the extent indicated thereunder. But the State of Andhra Pradesh
has not been able to establish the allegation made in this regard nor even the
counsel, appearing for the State has made any submission thereon. During the
course of hearing of the suit, on behalf of the State of Andhra Pradesh,
written submissions had been filed and even after the close of the hearing, the
State of Andhra Pradesh has filed a written submission on 15th of March, 2000,
in which also, there has been no mention about the alleged violation in
sub-basin K-6, K-8 and K-9. We, therefore, answer this issue by holding that
the plaintiff has failed to establish the same and the issue is answered
against the plaintiff accordingly.
ISSUE NO. 21- This issue relates to
utilisation of water under Almatti. In paragraph 66(iii), the plaintiff has
made the averment, which has been denied and explained in the written statement
by the State of Karnataka vide paragraph 12.85 and the State of Karnataka
further averred that the entire utilisation at Almatti is within its allocable
share and no injury is caused to the State of Andhra Pradesh thereunder.
Since, we have already held that under the
decision of the tribunal, the allocation was enbloc and not project-wise, even
if it is held that utilisation under Almatti would be of the order of 91 TMC,
as claimed, the same would not violate the decision of the tribunal. That
apart, we do not have any positive material, on the basis of which, it can be
said that the utilisation under Almatti would be of the order of 91 TMC. The
issue is answered accordingly.
In course of arguments Mr. Ganguli, the
learned Senior counsel for the State of Andhra Pradesh had raised a contention
that the State of Karnataka to frustrate any decree to be passed by this Court
injuncting the defendant no.1 from raising the construction of the Dam at
Almatti at a height of 524.256 has already incorporated an autonomous body,
called Krishna Bhagya Jala Nigam Limited (KBJNL)and the State Government has
divested itself of all powers relating to the construction of Dam at Almatti
with the aforesaid Nigam and this has been designedly made so that any order or
decree for injunction would not be binding.
Since this argument had been advanced towards
the concluding stage and there was no assertion in the plaint in this regard,
nor any issue had been struck by the Court, the State of Karnataka had been
permitted to file an affidavit indicating the correct state of affairs in
relation to the constitution of KBJNL and to allay or apprehension in the minds
of the plaintiff State. An affidavit had been filed by the Secretary to the
Government of Karnataka, Irrigation Department, who has also been nominated as
Director of KBJNL, the said nomination having been made under Article 147(c) of
the Articles of Association of the Companies. It has been categorically stated
in the said affidavit that for facilitation of mobilising funds and providing
sufficient funds to complete irrigation projects the constitution of KBJNL has
been constituted with the sole idea to complete the works of Upper Krishna
Projects by 2000AD. This company is a Government Company which has been
established with an approval of the Cabinet in the State of Karnataka by its
decision dated 6th May, 1994 and the Chief Minister of the State of Karnataka
is the Chairman of the Company whereas Deputy Chief Minister is the Vice-
Chairman of the Board of Directors. All the Subscribers to the Memorandum are
Government Officials and it has been declared to be a Government Company. The
Memorandum of Articles of Association have been exhibited as Exhibited PAP 210.
The affidavit has given the details as to how the State Government retains full
control over KBJNL and on going through the said affidavit we have no
hesitation to come to the conclusion that the apprehension of the plaintiff
State is wholly mis-conceived and devoid of any substance.
In view of our conclusions drawn on different
issues, it is not possible for the Court to grant the relief of permanent
mandatory injunction, so far as construction of the Dam at Almatti is concerned
as well as the reliefs sought for in paragraphs (b) to (k). But at the same
time, we make it clear that there is no bar for raising the height of the Dam
at Almatti upto 519.6 meters subject to getting clearance from the Appropriate
Authority of the Central Government and any other Statutory Authority, required
under law. The question of raising the height upto 524.256 meters at Almatti
could be appropriately gone into by a Tribunal, to be appointed by the Central
Government, on being approached by any of the three riparian States and such
Tribunal could also go into the question of apprehension of submergence within
the territory of the State of Maharashtra and give its decision thereon, in the
event the height of the Dam at Almatti is allowed to be raised upto 524.256
meters. The Tribunal would also be entitled to go into the question of
reallocation of the water in river Krishna basin, if new datas are produced by
the States on the basis of improved method of gazing.
The suit is disposed of accordingly. There
will be no order as to costs.
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