STATE OF TAMIL NADU versus STATE OF KARNATAKA AND ANOTHER on 14 November 2019

1. This Suit has been filed on 18.05.2018 by State of Tamil Naduunder Article 131 of the Constitution of India against State of Karnatakaand Union of India submitting inter alia,

A] “2.The plaintiff (State of Tamil Nadu), and Defendant No.1(State of Karnataka) are the two riparian States among the threebasin States and the union territory of Puducherry in which theInter-State River Pennaiyar flows. As a riparian State, thePlaintiff is entitled to and has been using the waters of the riverPennaiyar and its tributaries/rivulets, etc., except for thereasonable beneficial use of the 1[st] Defendant. The extent ofthe rights of the Party States, in the use, control and distributionof waters of the Inter State River, is recognized in an agreementof 1892 entered into between the then State of Madras andMysore (hereinafter referred to as 1892 Agreement), thepredecessor States of Tamil Nadu and Mysore/Karnatakarespectively.

3. The 2[nd] Defendant, Union of India is duty bound to ensurethat, none of the riparian States steal a march over the other byundertaking construction or execution of any works, either smallor big, or construct a Check Dam or diversion structure relatingto the use, control and distribution of waters of an Inter-StateRiver either in the main river or its tributaries/sub-tributarieswhich may defeat the right of one of the riparian States.

4. The 1[st] Defendant has taken up five different works in thePennaiyar river Basin of Karnataka, affecting the natural flowsof the river namely,

i) Construction of a pumping scheme to pump the waters ofPennaiyar river from Thattanur (Tattanur) village, Malurtaluk, Kolar district to Lakkur Tank, which is at about 65ft. higher elevation, for distributing the water to about 160tanks through underground PVC pipeline,

ii) Lift irrigation scheme at Ellamallappa Chetty tank(Yellamallappa Chetty tank) for pumping 22 MLD (284

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Mcft.) of water to fill up the Hoskote tank, which is locatedupstream, using 3 Nos. of 120 HP motors.

iii) Pump water from the main Pennaiyar river at Belahalli(Byalhalli) village for irrigation purpose,

iv) Diversion of surplus waters of Varathur Tank (VarturTank) to Narsapur Tank in Kolar district by pumpingthrough 2.5 m diameter pipeline and also implementationof pumping schemes to fill the tanks in Kolar district and

v) Construction of a reservoir of 500 Mcft storage capacity,across Markandeya river, a tributary of Pennaiyar river,near Yargol village, just upstream of Karnataka – TamilNadu border by Karnataka Urban Water Supply andDrainage Board.

5. The projects undertaken by the 1[st] Defendant would severelyaffect the livelihood of lakhs of farmers in Krishnagiri,Dharmapuri, Thiruvannamalai, Villupuram and Cuddalore districtsof Plaintiff State as the flow of the river will be drasticallyreduced/hampered besides affecting the drinking water needs ofthe Plaintiff state.”

B] The plaint narrates certain works taken up by the firstdefendant as under:-

“12.The river Markandeyanadhi is a tributary of Pennaiyar riverwhich originates in Karnataka and enters Tamil Nadu nearSigaralapalli village, in Krishnagiri District and joins withPennaiyar after traversing a distance of about 29.4 km in TamilNadu, upstream of Krishnagiri Reservoir. The sub basin area ofthe Markandeyanadhi falling in Karnataka is about 150 sq.km.The average annual rainfall in that area is about 730 mm. Thelower riparian State is entitled to realization of flow from theupstream areas. There are four Anicuts across Markandeyanadhiin Tamil Nadu, viz., Sigaralapalli Anicut, Marasandiram Anicut,Beemandapalli Anicut and Kollapatti Anicut having a total ayacutof 870.55 ha. (2150 acres). The 1[st] Anicut acrossMarkandeyanadhi is Sigaralapalli Anicut which is at a distanceof about 1.9 km from the Karnataka – Tamil Nadu State border,near Sigaralapalli village. This anicut is said to have beenconstructed during the Berigai Zameen Regime of Pre- Independence days, which is evidenced by way of dilapidatedbrick masonry and stone masonry which are still available. Itwas rehabilitated in the year 2008. The ayacut irrigated by thisAnicut in the Plaintiff State is 115.60 ha. (or 286 acres). It issubmitted that if any check dam or diversion structure is takenupstream of these Anicuts by the 1[st] Defendant, the ayacutirrigated by the above referred four Anicuts will be affected.

13. The Secretary of the Plaintiff State, vide, letter dated09.03.2012 to the 1[st] Defendant, stated, inter-alia, that it hasplanned to divert Pennaiyar waters at Orathur through Mindchallitank and to distribute the water to about 160 tanks in Malur taluk,and that the Pennaiyar, an inter-State river is one of the 15 riversnamed in the Schedule – A of the Madras-Mysore Agreementof 1892 and as per Clauses II and III of the Agreement, the 1[st]Defendant shall not without the previous consent of the PlaintiffState take up any new irrigation works etc., for execution andrequested to furnish the full details of the proposal.

14. It is stated that a news item appeared in Indian Express,Chennai Edition dated 23.02.2012 wherein it was reported that1[st] Defendant planned to block the flow of water to the Pennaiyarriver altogether. The water thus blocked is sought to be divertedto replenish some 160 tanks in the Malur taluk in Karnataka,which is emerging as a ‘vegetable basket’ in the region.”

C] The plaint then refers to various communications between theparties and recites:- “22. The Plaintiff came to know that the 1[st] Defendant wasproposing to construct a check dam across Markandeyanadhi, atributary of Pennaiyar river, near Yargol village which is statedto provide drinking water supply to the villages nearby. Theconcerned Executive Engineer, WRD, of the Plaintiff State,visited the site on 22.05.2013 and found the preliminary worksfor the Anicut were going on. The display board put up at thesite revealed that the Anicut work is being undertaken acrossMarkandeyanadhi near Yargol village in Bangarapettai Taluk tosupply drinking water to Kolar, Bangarapettai, Malur towns and45 enroute villages by Karnataka State Water Supply andSanitary Board, Bangalore. The details of the proposed Anicutfound in the display board was that the length of Anicut is ABC

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414 m, with a water storing capacity of 500 Mcft, with projectcost is Rs.87.18 Crore. The location of the Anicut is at a distanceof approximately, 9.0 km from the Inter State border whichincludes a distance of 2.5 km in the forest area and the locationof the site is in the forest area. If 1[st] Defendant constructs theAnicut across Markandeyanadhi with a capacity of 500 Mcft,the flows in the Markandeyanadhi at the entry point in the borderof Tamil Nadu, will get seriously affected.”

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D] Under the caption “Jurisdiction”, the plaint states:- “46.This Hon’ble Court has original jurisdiction under Article 131Cof the Constitution to entertain the present Suit. The inter-StateAgreement of 1892 is binding on the party States and the ruleof law forbid the 1[st] Defendant form taking any action in violationof the said Agreement. Thus, there exists a dispute betweenthe Plaintiff and the Defendants, which involves a question oflaw and fact with regard to the common law rights pertaining toDconstruction of various works executed or being taken up by the1[st] Defendant to the detriment of Plaintiff State. The 1[st]Defendant notwithstanding the request of the Plaintiff State failedto even share the details of the schemes/works undertaken by itis proceeding with construction activities. Further, the 2[nd]EDefendant has failed to take action on the request of the PlaintiffState.”

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E] Finally, it is prayed:-

“a) Declare that the unilateral action of the 1[st] Defendant,in proceeding to construct/having proceeded toconstruct new Check Dams/Dams and diversionstructures across the Pennaiyar river its tributaries,Streams etc to divert the water by gravity or pumping,and pumping from tanks surplusing into the Pennaiyarriver or its tributaries without obtaining the priorconsent of the Plaintiff State is illegal and violates thefundamental rights of the inhabitants of the PlaintiffState; F

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b) Grant permanent injunction restraining the 1[st]Defendant, from proceeding with the construction ofCheck Dam/Anicut across Markandeyanadhi near H

Yargol village in Bangarapettai Taluk and constructionof check dam/diversion structure across the Pennaiyarriver and its tributaries, and pumping water from themto the existing tanks in the Pennaiyar basin by the 1[st]Defendant;

c) Direct the 1[st] Defendant to ensure the natural flowsin the Pennaiyar river and its tributaries to the PlaintiffState:

d) Grant mandatory injunction directing the 2[nd] Defendantto take action on the Plaintiff’s letter dated 16.03.2018with reference to construction of Dams and diversionstructures and pumping schemes undertaken by the 1[st]Defendant in the Pennaiyar river; and

e) Pass such further decree or decrees or order or ordersas this Hon’ble Court may deem fit and proper in thefacts and circumstances of the case.”

2. In its Written Statement filed on 05.12.2018, the seconddefendant-Union of India submitted:- “It is pertinent to mention that no request for appointment ofArbitrator under Rule-IV of Agreement 1892 has been receivedfrom either State Government in this regard and action as perthe agreement could not be taken so far by the CentralGovernment.

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…..Under Section 3 of Inter-State River Dispute Act, 1956, theState Government may send a request to Central Governmentstating that water dispute has arisen or is likely to arise by reasonof the fact that the interests of the State, or of any of theinhabitants thereof, in the waters of an Inter-state river or rivervalley have been, or are likely to be, affected prejudicially. ThisAct provides for setting up of Water Disputes Tribunal foradjudication of disputes relating to Inter-State Rivers whennegotiations do not lead o fruitful results. However, no requestfrom any of the State Governments has been received under theprovision of the ISWD Act, 1956.”

3. In its Written Statement filed in March 2019, the first defendanthas submitted interalia:- A

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“2.Article 262 of the Constitution of India specifies thatParliament may by law provide for the adjudication of any disputeor complaint with respect to the use, distribution or control ofthe waters or in any inter State river or river valley and that,Parliament may by law provide that neither the Supreme Courtnor any other court shall exercise jurisdiction in respect of anysuch dispute or complaint. Pursuant to Art. 262, Parliament haspromulgated the Inter State River Water Disputes Act, 1956 (ACTfor short) for adjudication of disputes relating to waters of InterState rivers and river valleys. Section 11 of the Act specifiesthat notwithstanding anything contained in any other law neitherthe Supreme Court nor any other court shall have or exercisejurisdiction in respect of any water dispute which may be referredto the Tribunal under the Act.

3. The dispute sought to be raised by the State of Tamil Nadurelates to distribution of water of South Pennaiyar river, whichis an inter-state river originating in the State of Karnataka andrunning through the States of Tamil Nadu and Union Territoryof Puducherry. In fact, the Pennaiyar river, which is also knownas South Pennar river also receives water from some of thetributaries originating in the State of Andhra Pradesh. The entiredispute is an interstate water dispute. Therefore the suit is notat all maintainable and is liable to be dismissed in limine.

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6. The main grievance of the State of Tamil Nadu is that theState of Karnataka has violated the terms and conditions of theAgreement of the year 1892. It is submitted that the Agreementof the year 1892 has been further modified and amended as perthe Agreement of the year 1933. The State of Karnataka hasnot violated any of the terms and conditions either of the 1892Agreement or the 1933 Agreement. It is further submitted thatunder the 1933 Agreement, there is no necessity for the Stateof Karnataka to inform the State of Tamil Nadu or any otherriparian States to utilize the waters of South Pennaiyar river basinfor the purpose of drinking water. The relevant portion of theagreement of 1933 reads as under:

“An anicut will include any construction of rough stone (dry)or masonry across a river either in part or full and in anydirection, which will have the effect of diverting water from STATE OF TAMIL NADU v. STATE OFKARNATAKA AND ANOTHER [UDAY UMESH LALIT, J.]

the river, but the consent of the Madras Government will notbe required under the agreement of 1892 for the constructionof any anicut if there is to be no irrigation under it.”

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37. Regarding the Construction of a reservoir of 500 Mcft storagecapacity across Markandeya river referred to in para 4(v), it issubmitted that the Urban Water Supply and Drainage Board hastaken up the project for meeting drinking water supply to Malur,Bangarpet Kolar towns and 45 en-route village.

38. The Markandeya Project was constructed near Yargol villageat an estimated cost of 240 crores. The justification for projectwas that drinking water is supplied from bore wells which arecompletely dried up. The Sate Water Quality Atlas prepared in2002 has declared that the ground water exploitation in Malurtown is about 85% classifying it as dark areas and Kolar cityand Bangarpet towns where ground water exploitation as 50%to 85% which have been classified as grey area. The presentproject is constructed to alleviate the drinking water problemsarising out of non-availability of potable ground water in borewells. The population and the demand of water for thepopulation at different points of time is as follows:

39. So far as construction of Markandeya reservoir with acapacity of 500 mcft is concerned, it is only to supply drinkingwater to Kolar, Bangarpet and Malur towns. This project is takenup by the State of Karnataka through KUWS & DB. In regardto this project, 70 to 75% of the work is completed. Since, it isa project to supply drinking water, no permission or consent isrequired from the State of Tamil Nadu either under the 1892Agreement or under the Agreement of 1933. Therefore, thereis no basis for Tamil Nadu in instituting this suit.

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A40. An approval has been granted to construct a reservoir witha capacity of 500 Mcft in order to supply water to drought pronetowns of Kolar, Bangarpet and Malur and 45 enroute villages.This project has been approved in the year 2007. The estimatedcost of the project is about 240 crores, out of which 160 croresis the budgetary allocation of the State of Karnataka and theBremaining 79.92 crores is from the Government of India. Theproject is taken up under a scheme known as UIDSSMT.Clearances have also been obtained from Government of India,Ministry of Urban Development and also from Ministry ofEnvironment and Forest. For the purpose of this project, 375.37Cacres of land has been acquired, out of which 127.10 acres isthe lands of the farmers, 153.15 acres of land is forest, for whichclearance has also been obtained from the Ministry of Forest andEnvironment. The remaining 95.12 acres of land is thegovernment gomala (grazing land). As of now, more than 70%of the work has been complete. Since, it is a drinking waterDproject, there is no need to obtain the consent or intimate theState of Tamil Nadu in view of the Agreement of 1933.

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84. The allegation in paragraph 46 that this Hon’ble Court hasEoriginal jurisdiction under Article 121 of the Constitution toentertain the present suit is not true. The allegation that theAgreement of the year 1892 binds the party States is notadmitted to be true and correct. The allegation that dispute existbetween the plaintiff and the defendant, which involves questionof law and fact with regard to common law rights pertaining toFconstruction of various works executed or undertaken by the 1[st]defendant are not admitted to be true and correct. This Hon’bleCourt has no jurisdiction to entertain the present suit.”

4. In its Replication filed on 30.04.2019 to the Written Statementof the second defendant, the Plaintiff stated:- G

“i. The averment of the 2[nd] Defendant that as no request forappointment of Arbitrator was received from StateGovernment, under Rule-IV of the 1892 Agreement, is thereason for the Central Government not being able to takeaction is wholly untenable. It is stated that whetherHMarkandeyanadhi, which is a tributary of Pennaiyar river, is specifically mentioned in the 1892 Agreement or not isnot relevant. Moreover, the principles envisaged in theAgreement is important, i.e., no new structure should beconstructed without the concurrence of lower riparian Stateor without affecting the existing utilization (drinking &irrigation) in the downstream areas. The construction ofa large dam across Markandeyanadhi would prejudiciallyaffect the downstream areas in Tamil Nadu and no dropof water would flow downstream of the dam underconstruction. If such constructions are encouraged, theexisting utilizaiton would be seriously affected.

ii. The 2[nd] Defendant has stated that no request has beenreceived from any State Government for constitution ofBoard under the provisions of River Boards Act, 1956 andfor setting up of Tribunals under Act, 1956. The saidcontention is denied. Regulation of water of an inter-Stateriver, is covered under Entry 56 of List I (Union List). TheDefendant No.2 has failed to initiate action to stop theunilateral action of 1[st] Defendant from going ahead withsuch un-authorized diversions. The 2[nd] Defendant has nottaken any effective action even after the representationsmade by the Plaintiff State were received except sendingan inspection team and conducting one meeting in 2018,while the issue has cropped up in 2012 itself.

iii. With regard to the contention of 2[nd] Defendant that norequest was received from any State Government forsetting up of Tribunal for adjudication of disputes relatingto Inter-State river Pennaiyar under the provisions of Act,1956, it is stated that the issue is not related to allocationof waters amongst the basin States but related to un-authorized diversions from the inter-State river and itstributary, which is a violation. However, 2[nd] Defendanthas not considered the representations made by the Plaintifffrom 2012 onwards to protect and safeguard the interestof the lower riparian State as envisaged in Clause II ofAgreement, 1892 and the rights guaranteed under Article21 of the Constitution.”

5. Replication was also filed on 07.05.2019 to the WrittenStatement filed by the first defendant submitting inter alia:- AB

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A“6. It is reiterated that the Suit is maintainable as the DefendantState is a party to the Agreement. The 1[st] Defendant by itssuo-motu action of diverting the Pennaiyar river water directlyby pumping in number of places, and also pumping the surpluswaters from the tanks draining into the river to other tanks, whichwere not fed by the river and thereby preventing surplus flowsBfrom the tanks flowing to the river, has deprived the flows dueto the lower riparian State. Thus, the action of the 1[st] Defendantin interfering with the rights of the Plaintiff State and the Suit ismaintainable under Article 131, the redressal of the grievance.”

6. Thereafter, IA No.95384 of 2019 has been filed by the PlaintiffCseeking following directions:- “a) restrain the 1[st] Defendant and its instrumentalities fromproceeding further with the construction of dam acrossMarkandeyanadhi near Yargol Village;

b) direct the State of Karnataka and its instrumentalities notto obstruct the natural flows to the downstream State ofTamil Nadu pending disposal of the present application;and”

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“2. It is stated that the officials of the Applicant State made avisit to the site on 16.05.2019 and found the following activitiesacross Markandeyanadhi to divert water by State of Karnatakafor its use which would completely impound the natural flowsdue to downstream State of Tamil Nadu.

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i. A massive dam construction work is going on acrossMarkandeyanadhi at Yargol (Karnataka State) and it is nota check dam.

ii. As per local enquiry, the height of the dam is about 50m.At present concrete dam is constructed to a height of about35m and the work is in progress, the length of the damseems to be around 400m. The left flank bund has beenraised and it has almost reached the top bund level. Theupstream bund revetment work is also progressing.

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iii. A large amount of materials collections are seen in theHupstream of the dam.

iv. Pumping station works are progressing.”

7. Statement of objection filed by the first defendant to theaforementioned interim application, states as under:-

“8. So far as construction of Markandeya reservoir with acapacity of 500 mcft is concerned, it is only to supply drinkingwater to Kolar, Bangarpet, Malur towns and en-route 45 villages.This project is taken up by the State of Karnataka throughKarnataka Urban Water Supply & Drainage Board (KUWS &DB), Bangalore. In regard to this project, 70 to 75% of the workis completed. Since, it is a project to supply drinking water, nopermission or consent is required from the State of Tamil Nadueither under the 1892 Agreement or under the Agreement of1933. Therefore, there is no basis for Tamil Nadu in institutingthis suit.

9. An approval has been granted to construct a reservoir with acapacity of 500 Mcft in order to supply water to drought pronetowns of Kolar, Bangarpet, Malur and 45 en-route villages. Thisproject has been approved in the year 2007 and subsequentlymodified Government Order was issued in 2008. The estimatedcost of the project is about Rs.240 crores, out of which Rs.160crores is the budgetary allocation of the State of Karnataka andthe remaining Rs.79.92 crores is from the Government of India.The project is taken up from financial assistance of Rs.79.92crores under Urban Infrastructure Development Scheme forSmall and Medium Tanks (UIDSSMT) of Government of India,known as UIDSSMT. For the purpose of this project, 375.37acres of land has been acquired, out of which 127.10 acres isthe lands of the farmers, 153.15 acres of land is forest, for whichclearance has also been obtained from the Ministry of Forest andEnvironment, Government of India. The remaining 95.12 acresof land is the government gomala (grazing land). As of now,more than 75% of the work has been completed. Since, it is adrinking water project, there is no need to obtain the consent orintimate the State of Tamil Nadu in view of the Agreement of1933.”

8. In the rejoinder to the statement of objection and in sur-rejoinder thereto, the parties reiterated their respective stands.

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A9. We heard Mr. Shekhar Naphade, learned Senior Advocate forthe Plaintiff, Mr. Shyam Divan, learned Senior Advocate for the firstdefendant and Mr. S. Wasim A. Quadri, learned Senior Advocate forthe second defendant.

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A) As laid down by this Court in State of Karnataka v. Stateof Tamil Nadu and Others[1], an Inter State River passingthrough corridors of riparian States constitutes a nationalasset and no single State can claim exclusive ownershipof its water. However, the attempts on part of firstCdefendant were to appropriate the water exclusively toitself.

B) Though river Markandeyanadhi was not referred to in theAgreement of 1933 entered into between the erstwhileStates of Madras and Mysore, going by the law laid downDby this Court in State of Tamil Nadu v. State of Keralaand Another[2]a tributary would be part of the Inter StateRiver and as such would be covered by said agreement.

C) Clause 1(3) of the Agreement of 1933 permitted creationof anicuts i.e. smaller canals if no irrigation was involved.EHowever, such provision would not apply to irrigationprojects where a dam is being constructed with 36 metresof height.

D) Documents at page 215-216 of the paper book show thatFgrievance was raised by the plaintiff and request was madefor full information about all the schemes in Pennaiyar basinbut no requisite information was supplied. Thoughrepresentations and complaints were made by the plaintiffto the second defendant, no action was taken.

GE) Since the Agreement of 1933 was violated by the firstdefendant, the second defendant ought to have interferedin the matter but there was total inaction on part of thesecond defendant.

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F) Dealing with the issue whether the matter ought to gobefore a Tribunal under the Indian State River WaterDisputes Act, 1956 (‘the Act’, for short) reliance wasplaced on the decisions of this Court in State of Orrisa v.Government of India and Another[3] and Tamil NaduCauvery Neerppasana Vilaiporulgal Vivasayigal NalaUrimai Padhugappu Sangam v. Union of India andOthers[4] and it was submitted in the alternative that interimrelief as prayed for be granted till the appropriate stepswere taken by the second defendant to constitute suchTribunal.

11. On the other hand, Mr. Divan, learned Senior Advocateappearing for the first defendant submitted:-

a) The instant suit itself was not maintainable in view of theexpress mandate under Article 262 of the Constitution ofIndia read with Section 11 of the Act.

b) Agreement of 1933 would apply only in respect of irrigationprojects and would not cover drinking water projects. Thereport of Central Water Commission (CWC) was alsorelied upon in support of the submission.

c) The projects for supply of drinking water have been givenhighest priority under the National Water Policy and in anycase 80% of the water supplied for drinking purposeswould normally come back by return flows into the basin.

d) About 75% to 80% of construction work was alreadycompleted which was undertaken after due sanctions andpermissions from the concerned authorities. The steps inthat behalf were undertaken from the year 2013 onwardsand the instant application preferred by the plaintiffsuffered from delay and laches.

e) Considering the length of the Inter State River, 75% of thebasin including the catchment area is in the State of TamilNadu and the projects undertaken by the first defendantwould not cause any prejudice to the plaintiff.

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A12. Mr. S. Wasim A. Quadri, learned Senior Advocate for thesecond defendant submitted that though various communications wereaddressed by the plaintiff, at no stage any request was made in theprescribed form invoking the powers of the second defendant in termsof the provisions of the Act to constitute a Tribunal to consider thedisputes in question.B

13. The rival contentions advanced by the parties touching uponmerits of the matter including maintainability of the suit will certainlybe gone into after the parties are allowed opportunity to lead evidencein accordance with law and to make appropriate submissions. At thisjuncture we are called upon to consider whether pending considerationCof the present suit, any interim directions are required to be passed.

14. From the record it is prima facie evident that the project inquestion was undertaken after receiving all requisite sanctions andpermissions. The issue was engaging the attention of the authorities fora while; the construction work began few years back; and as of nowD75% work is complete. Therefore, in our prima facie view, no case ismade out for granting any interim relief.

15. We now consider the alternative submission of Mr. Naphade,learned Senior Advocate and the decisions of this Court in State ofOrrisa[3]and Tamil Nadu Cauvery[4] case relied upon by him. In theEfirst case the State had approached this Court under Article 32 of theConstitution submitting inter alia that despite several requests madeby it for constituting an Inter State River Water Disputes Tribunal, therewas complete inaction on part of the Central Government. The principalrelief claimed in the petition was for appropriate direction to the CentralFGovernment to constitute an Inter State River Water Disputes Tribunaland pending such decision by the Central Government, interim reliefwas prayed for. This is clear from paragraphs 1, 2, 47, 49, 50, 51, 52and 53 of the decision of Kabir, J. (as the learned Chief Justice thenwas), with whom Katju, J. concurred:- G“1. The State of Orissa has filed this writ petition under Article32 of the Constitution of India, wherein the Government of Indiahas been made Respondent 1 and the State of Andhra Pradeshhas been made Respondent 2, inter alia, for the following reliefs:

“(a) direct the Government of India to constitute anHappropriate Tribunal under Section 4 of the Inter-State Water Disputes Act, 1956 and thereafter, refer to it thedispute relating to the construction of Side ChannelWeir and Flood Flow Canal Project at Katragada onRiver Vansadhara by the State of Andhra Pradesh; (b) issue a writ of mandamus commanding the State ofAndhra Pradesh to forbear from carrying on anyworks of the proposed project;”

2. As indicated in the very opening paragraph, the writ petitionwas filed by the State of Orissa for a direction to the CentralGovernment to constitute a Water Disputes Tribunal under theInter-State Water Disputes Act, 1956 and to refer to the Tribunalthe dispute contained in the complaint made by the State of Orissaon 13-2-2006, as to whether the State of Andhra Pradesh wasjustified in constructing a Side Channel Weir and Flood FlowCanal Project on River Vansadhara at Katragada, which wouldadversely affect the supply of water from the river to the Stateof Orissa and adversely affect the livelihood of thousands ofpeople of Orissa in glaring violation of Article 21 of theConstitution of India.

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47. It is now almost three years since the complaint was madeby the State of Orissa but the Central Government has not takenany action in the matter. In this scenario, the prayer made bythe State of Orissa does not appear to be unreasonable sincethe dispute between the two States does not confine itself to theconstruction of the side channel weir and the flood flow canal,but primarily it involves the unilateral decision taken by the Stateof Andhra Pradesh to divert the river waters to the State ofAndhra Pradesh, which could possibly disturb the agreement toshare the waters of the river equally.

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49. Coming to the question of grant of interim order during theinterregnum, I am satisfied that unless some interim protectionis given till the constitution of the Water Disputes Tribunal bythe Central Government, the objection raised by the State ofOrissa will be rendered infructuous, which certainly is not theintention of the 1956 Act.

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A50. Notwithstanding the powers vested by Section 9 of the Actin the Water Disputes Tribunal to be constituted by the CentralGovernment under Section 4, which includes the power to grantthe interim order, this Court under Article 32 of the Constitutionhas ample jurisdiction to pass interim orders preserving the statusquo till a Tribunal is constituted which can then exercise itsBpowers under Section 9.

51. The bar under Section 11 of the Act will come into play oncethe Tribunal is constituted and the water dispute is referred tothe said Tribunal. Till then, the bar of Section 11 cannot operate,as that would leave a party without any remedy till such time asCthe Tribunal is formed, which may be delayed.

52. I, accordingly, allow the writ petition and direct the CentralGovernment to constitute a Water Disputes Tribunal within aperiod of six months from the date and to refer to it the disputerelating to the construction of the Side Channel Weir and FloodDFlow Canal Project at Katragada on River Vansadhara by theState of Andhra Pradesh for diversion of the waters of the saidriver which could adversely affect the supply of water from thesaid river to the State of Orissa.

53. I also direct that pending constitution of the Water DisputesETribunal and reference of the above dispute to it, the State ofAndhra Pradesh will maintain status quo as of date with regardto the construction of the side channel weir and the flood flowcanal at Katragada. Once the Tribunal is constituted the partieswill be free to apply for further interim orders before theTribunal.”F

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The second case dealt with the maintainability of a Writ Petitionby the concerned Writ Petitioners.

16. In the present case neither in the plaint, nor in the interimapplication any relief in the nature of directions to constitute a TribunalGunder the Act is claimed.

17. We repeatedly asked Mr. Naphade, learned Senior Advocateto show any communication where the plaintiff had invoked the powerof the Central Government and sought constitution of an Inter StateRiver Water Disputes Tribunal to consider the present controversy. Mr.HNaphade accepted that there was no such express communication but submitted that the request ought to be inferred from variouscommunications addressed by the plaintiff to the Central Government.

18. It must be stated that Section 3 of the Act postulates that arequest be made in such form and manner as may be prescribed,whereafter the requisite power can be exercised by the CentralGovernment. The rules framed pursuant to rule making power conferredupon the Central Government under Section 13 of the Act also prescribea particular form. It is not as if that there was lack of proper legalopinion in the matter. The State would normally be guided by expertlegal advice in such matters. It is also possible to say that in a givencase, a State may not be inclined to have any Inter State River WaterDisputes Tribunal to be constituted and would therefore consciouslyavoid any direct request asking for such constitution of the Tribunal.There could be variety of reasons. It will not therefore be correct onour part to infer such an idea from the communications addressed bythe plaintiff to the second defendant and then find second defendant tobe at fault for not constituting a Tribunal under the Act.

19. In the circumstances all we can do at this stage is to permitthe plaintiff to make an appropriate application invoking the powers ofthe Central Government in terms of the provisions of the Act and seekconstitution of an Inter State River Water Disputes Tribunal. If theplaintiff is so advised, such request may be made within four weeksfrom the date of this order.

20. Subject to the aforesaid, we see no reason to entertain thepresent application. I.A. No.95384 of 2019 is therefore dismissed. Letthe Suit be listed for further directions on 10[th] January, 2020.

Nidhi Jain

I.A. dismissed.

AB

C

D

E

F

G

H