TMI Blog2009 (2) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Andhra Pradesh to forbear from carrying on any works of the proposed project; 2. As indicated in the very opening paragraph, the writ petition was filed by the State of Orissa for a direction to the Central Government to constitute a Water Disputes Tribunal under the Inter-State Water Disputes Act, 1956 and to refer to the Tribunal the dispute contained in the complaint made by the State of Orissa on 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Vansadhara basin approximately 76.47 TMC water is available 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y both the States in the river bed or banks or on Flood flow Canal, till the final Report of the Technical Committee is submitted and accepted by both the Governments. 3) No work, which will jeopardize the interest of any State, shall be taken up. 4) The relevant Project information will be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y water-rate in contravention of the prohibition contained in Section 7. In this regard, reference may also be made to Article 262 of the Constitution of India, which provides as follows: 262. Adjudication of disputes relating to waters of inter-State rivers or river valleys: (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley; (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that despite all efforts, a negotiated settlement has eluded the parties and, on the other hand, the State of Andhra Pradesh has continued with the construction work of the Side Channel Weir and Flood Flow Canal Project at Katragada. 16. Having regard to the above, Mr. Ramachandran referred to the decision of this Court by a Bench of three Judges in Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his opening submission that there was, in fact, no dispute which was required to be referred to a Water Disputes Tribunal to be constituted under the 1956 Act, as both the States in principle had agreed to sharing of the waters of the Vansadhara river on an equal basis. All that was required was for the representatives of the States to sit together and with the help of their representatives and Technical Committees arrive at a solution whereby 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh regarding the diversion of the Vansadhara river waters by the construction of the Side Channel Weir and the Flood Flow Canal constitutes a water dispute within the meaning of Section 2(c) of the 1956 Act. Admittedly, in principle the two States had agreed to the sharing of the Vansadhara river waters on an equal basis. What we are called upon to decide is whether the diversion of a portion of the river waters into a Side Channel Weir and a Flood Flow Canal violates the 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnel Weir and the Flood Flow Canal, but primarily it involves the unilateral decision taken by the State of Andhra Pradesh to divert the river waters to the State of Andhra Pradesh, which could possibly disturb the agreement to share the waters of the river equally. 29. In my view, such a dispute must be held to be a water dispute within the meaning of Section 2(c)(i) of the 1956 Act, which refers to any dispute between two or more State Governments with regard to the use, distribution or control of the waters 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 W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... water shortages everywhere often leading to riots, road blocks and other disturbances and disputes for getting water. In many cities, in many colonies people get water for half an hour in a day, and sometimes not even that e.g. in Delhi, Tamil Nadu, Rajasthan, U.P., Northeast, etc.. In large parts of rural areas there is shortage of water for irrigation and drinking purpose. Rivers in India are drying up, ground water is being rapidly depleted, and canals are polluted. The Yamuna in Delhi looks like a black drain. Several perennial rivers like the Ganga and Brahamputra are rapidly becoming seasonal. Rivers are dying 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. In this connection, it has been observed in Delhi Water Supply Sewage Disposal Undertaking and Anr. v. State of Haryana and Ors. 1996CriLJ1887 : Water is a gift of nature. Human hand cannot be permitted to convert this bounty into a curse, an oppression. The primary use to which water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty.... 44. Similarly in Chameli Singh and Ors. v. State of U.P. and Ors. AIR1996SC1051 this Court observed: ...Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. 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 scien ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
