TaxTMI 
TaxTMI 
2009 (2) TMI 896
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.... Pradesh to forbear from carrying on any works of the proposed project; 2. As indicated in the very opening paragraph, the writ petition was filed by the State of Orissa for a direction to the Central Government to constitute a Water Disputes Tribunal under the Inter-State Water Disputes Act, 1956 and to refer to the Tribunal the dispute contained in the complaint made by the State of Orissa on 13th February, 2006, as to whether the State of Andhra Pradesh was justified in constructing a Side Channel Weir and Flood Flow Canal Project on the river Vansadhara at Katragada, which would adversely affect the supply of water from the river to the State of Orissa and adversely affect the livelihood of thousands of people of Orissa in glaring violation of Article 21 of the Constitution of India. 3. In order to understand the stand taken by the State of Orissa in the matter, it would be necessary to set out the facts of the case giving rise to the dispute. 4. The river Vansadhara originates in the South West of Lanjigarh in the Kalahandi District of Orissa and continues its journey for 239 kms. before entering the Bay of Bengal. Out of the said 239 kms., a length of 154 kms. lies i....
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.... in monsoon. During non-monsoon months the yield may approximately be 7 TMC. All the available water will be shared between the two States on 50:50 basis annually. The above figure regarding water availability would be updated from time to time on the basis of additional data as and when available. (2) No area in Orissa will be submerged as a result of construction of the proposed Neradi Barrage, except 106 acres of land to be acquired in Orissa State for various purposes as indicated in the Project Report. (3) To ensure that the back water stretch is limited only to 3 kms on the upstream, the river has to be widened by removing construction between the chainage 10.37 to 13.65 kms to the section as suggested in the supplementary mathematical model run by the C.W.C. The Government of Orissa, in consultation with C.W.C. will however conduct sensitivity studies within a period of 3 (three) months incorporating varying `n' values which has not been carried out so far by the C.W.C. This study will indicate the water surface profile upstream and downstream of the barrage and the extent of likely back water stretch in Orissa. Based on the sensitivity study the height....
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....e furnished to the Central Water Commission, as per requirements. 5) The delegation of Ministers of both the States shall meet as frequently as possible to sort out all the matters of mutual interest as regards to Irrigation Project.... 7. It is the grievance of the State of Orissa that despite the resolution adopted at the Inter-State meeting held on 24th February, 2005, whereby four meetings were proposed to be held, no such meetings were convened, and, on the other hand, despite the undertaking given by the two States, the State of Andhra Pradesh continued with its construction work on the Flood Flow Canal by continuing with land acquisition and other preliminary works. Even Bhoomi Pujan was alleged to have been conducted by the State of Andhra Pradesh in connection with the aforesaid project. It is the said conduct of the officials of the State of Andhra Pradesh, which resulted in the filing of the writ petition and also a complaint under Section 3 of the Inter State Water Disputes Act, 1956 and the Rules framed thereunder to the Union of India. Following the said complaint, an Inter-State Meeting with Secretaries of the Irrigation/Water Resources Departments of the....
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....of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley; (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). 10. A similar provision is contained in Section 11 of the 1956 Act, which reads as follows: 11. Bar of jurisdiction of Supreme Court and other Courts - Notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act. 11. In the light of the above provisions, both of the 1956 Act and the Constitution, and having regard to the inaction of the State authorities to settle the dispute, Mr. Ramachandran submitted that the State of Orissa was compelled to file the complaint to the Central Government under Section 3 of the 1956 Act for the constitution of a Tribunal in terms of Section 4 thereof. 12. While considering the ....
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.... Urimai Padhugappu Sangam v. Union of India and Ors. [1990]3SCR83 , wherein in a similar application under Article 32 of the Constitution regarding the equitable distribution of the waters of the river Cauvery, a direction was sought on the Union of India for the constitution of a Water Disputes Tribunal under the 1956 Act. While considering the provisions of Section 4, this Court was of the view that in view of the mandatory provisions of Section 4 by use of the word "shall", it was both mandatory and obligatory on the part of the Central Government to constitute an appropriate Tribunal and to refer the dispute to it. Having held as above, this Court directed the Central Government to constitute such Tribunal for adjudication of the water dispute indicated in the judgment. Mr. Ramachandran submitted that a similar direction may also be issued in the instant case in view of the failure of the Central Government to act in terms of Section 4 on the complaint made by the State of Orissa under Section 3 of the 1956 Act. 17. Learned senior counsel, Mr. Dipankar Gupta, who appeared for the State of Andhra Pradesh, at the very outset contended that the relief prayed for by th....
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....by the aforesaid construction work could be undertaken without disturbing the flow of water to the State of Orissa accenting to its entitlement. 20. The submissions made by Mr. Dipankar Gupta were to some extent supported by the stand taken on behalf of the Union of India. Referring to the averments made in the counter-affidavit filed on behalf of the Union of India, Mr. Navin Prakash, learned Counsel, submitted that it had always been and is still the endeavor of the Union of India to settle the dispute which has arisen between the two States by a negotiated settlement. In fact, this submission has been repeated throughout the counter- affidavit filed on behalf of the Union of India and orally it was also submitted that the Union of India was still making attempts to solve the said disputes through negotiated settlement. 21. While advancing submissions on the writ petition, submissions were also advanced by learned Counsel on prayer (b) in the writ petition praying for a Mandamus to command the State of Andhra Pradesh from carrying on any work in respect of the proposed project. Mr. Ramachandran contended that unless the State of Andhra Pradesh was restra....
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.... said agreement and if it does, whether the same would amount to a water dispute between the two States. 26. The said proposal of diverting the waters of the river was disputed by the State of Orissa from as far back as in 2005, when the construction work on the said two projects had just commenced. It is not disputed that several joint meetings were held between the representatives of the two State Governments on this issue, including several meetings between the Chief Ministers of the two States. It is also evident that the Union of India, to whom the complaint had been made by the State of Orissa on 13.2.2006, had made attempts to bring about a negotiated settlement between the two States which did not materialize. On the one hand the complaint made by the State of Orissa remains indisposed of, and on the other, the construction of the Side Channel Weir and the Flood Flow Canal and the Neradi Barrage had continued. 27. During the hearing, an amendment made to Section 4 of the 1956 Act, which became effective from 28.3.2002, was brought to our notice. Sub-section (1) of Section 4, which is relevant for our purpose originally read as follows: 4. ....
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....of or/in any inter-State river or river valley. Moreover, the time frame inserted into Sub-section (1) of Section 4 of the Act also persuades me to grant the reliefs prayed for by the State of Orissa since its complaint is pending from 13.2.2006. 30. Coming to the question of grant of interim order during the interregnum, I am satisfied that unless some interim protection is given till the constitution of the Water Disputes Tribunal by the Central Government, the objection raised by the State of Orissa will be rendered infructuous, which certainly is not the intention of the 1956 Act. Notwithstanding the powers vested by Section 9 of the Act in the Water Disputes Tribunal to be constituted by the Central Government under Section 4, which includes the power to grant the interim order, this Court under Article 32 of the Constitution has ample jurisdiction to pass interim orders preserving the status quo till a Tribunal is constituted which can then exercise its powers under Section 9. The bar under Section 11 of the Act will come into play once the Tribunal is constituted and the water dispute is referred to the said Tribunal. Till then, the bar of Section 11 cannot operate, as th....
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.... or declining, and aquifers are getting over-pumped. Industries, hotels, etc. are pumping out groundwater at an alarming rate, causing sharp decline in the groundwater levels. Farmers are having a hard time finding ground water for their crops e.g. in Punjab. In many places there are serpentine queues of exhausted housewives waiting for hours to fill their buckets of water. In this connection John Briscoe has authored a detailed World Bank report, in which he has mentioned that despite this alarming situation there is widespread complacency on the part of the authorities in India. 38. Often there are disputes between States in India relating to the waters of inter State rivers, as in the present case. To resolve these disputes Parliament has enacted the Inter State Water Dispute Act, 1956, which was amended in 2002. This Act has provided for a mechanism for resolving such water disputes between States through Tribunals constituted under Section 4 of the Act. 39. Experience has shown that while such Tribunals have played a role in resolving such disputes to a certain extent, but they have not, and cannot resolve the water shortage problem permanently. For instance if there is ....
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.... These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.... 45. The same view was taken in several other decisions by this Court in various other decisions. 46. I, therefore, recommend to the Central Government to immediately constitute a body of eminent scientists in the field who should be requested to do scientific research in this area on a war footing to find out scientific ways and means of solving the water shortage problem in the country. This body of scientists should be given all the financial, technical and administrative help by the Central and State Governments for this purpose. They should be requested by the Central and State Governments to do their patriotic duty to the nation in this connection, and by scientific research to find out the ways of solving the water shortage problem in the country. The help and advice of foreign scientific experts and/or Indian scientists settled abroad who are specialized in this field may also be taken, since the solu....