SCA/3358/1999 1/47 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3358 of 1999 With CIVIL APPLICATION No. 1947 of 2005 In SPECIAL CIVIL APPLICATION No. 3358 of 1999 With CIVIL APPLICATION No. 2374 of 2005 In SPECIAL CIVIL APPLICATION No. 3358 of 1999 With CIVIL APPLICATION No. 2241 of 2005 In CIVIL APPLICATION - FOR INJUNCTION No. 1947 of 2005 For Approval and Signature: 2HONOURABLE MR.JUSTICE KSHITIJ R.VYAS HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== KACHCHH JAL SANKAT NIVARAN SAMITI - Petitioner(s) Versus STATE OF GUJARAT & 8 - Respondent(s) ============================================================== Appearance : Mr Mihir Joshi, Sr.Advocate with Mr N V Anjaria for petitioners. Mr S N Shelat, Advocate General with Ms Maithili D Mehta for respondent no.1. Mr Kamal Trivedi, Addl.Advocate General with Ms. Amee Yajnik for respondent no.2. ================================================================== CORAM:HONOURABLE MR.JUSTICE KSHITIJ R.VYAS and HONOURABLE MR.JUSTICE AKSHAY H.MEHTA SCA/3358/1999 2/47 JUDGMENT Date : 04.10.2005 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE KSHITIJ R.VYAS) The petitioner, Kachchh Jal Sankat Nivaran Samiti, through its Convener and other Citizens of Kachchh, by way of this Public Interest Litigation voiced grievance as regards the meagre allocation of water from Sardar Sarovar Project by the Government to the District of Kachchh which constitute 1/4th of the total area of the State which is a 100% drought prone district. The locus standi of the petitioners, as indicated in para 3.1 of the petition makes the petition of a representative character on behalf of the people of Kachchh voicing their grievance as well as the aspirations of the people. To appreciate the grievances of the petitioners, it is necessary to give certain background of the factual aspects. 2. In the year 1969, the Government of India constituted a Tribunal named Narmada Water Dispute Tribunal ( hereinafter referred to as 'NWDT''/Tribunal) headed by Justice V Ramaswamy, a retired Judge of the Supreme Court to decide the inter-state dispute of sharing water of river-Narmada. On 16.8.1978, the tribunal declared its award under section 5(2) read with section 5(4) of the Inter-State Water Disputes Act, 1956 (for short, 'the Act'). Thereafter, references No.1,2,3,4 and 5 of 1978 SCA/3358/1999 3/47 JUDGMENT were filed by the Union of India and the states of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan respectively under section 5(3) of the said Act which were heard by the tribunal and on 7.12.1979, gave its final order. The same was published in the Extraordinary Gazette by the Government of India on 12.12.1979. In arriving at its final decision, issues regarding allocation of water, height of dam, hydrology and other related issues came to be subjected to comprehensive and thorough examination by the tribunal. Extensive studies were done by the Irrigation Commission and Drought research Unit of India, Meteorological Department in matters of catchment area of Narmada basin, climate, rainfall, variability of rainfall, and the semi-arid zones and scarcity area of Gujarat. The report also suggests that the tribunal also have taken into consideration various technical literature before giving its award. 3. The issue of allocation of Narmada waters at Sardar Sarovar Dam site was determined on the basis of 75% dependability at 28 Million Acre Feet (in short, 'MAF'), It further ordered that out of the utilisable quantum of Narmada water, the allocation between the Sate should be as under: Madhya Pradesh 18.25 MAF Gujarat 9.00 MAF Rajasthan 0.50 MAF Maharashtra 0.25 MAF SCA/3358/1999 4/47 JUDGMENT As a result of the award of the tribunal from the Sardar Sarovar Dam and related constructions, the main canal system known as Narmada Main Canal, 458 km long which is to carry away water meant for irrigation and drinking purposes to the canal systems of Gujarat and Rajasthan is constructed. It may be stated at this stage that the State of Gujarat demanded 20.73 MAF of water out of the total demand of 22.02 MAF of water before NWDT for total 71.38 lacs acres area. The demand included 6.57 MAF of water for reclaiming and/or irrigating 12.17 lakhs Acres of land of the District of Kachchh for area under zone XI-C, Banni and Ranns . However, the tribunal did not consider the demand of the State of Gujarat for Banni and Ranns of Kachchh on the ground that these areas are barren and sparsely populated and the soil is highly saline having , very low permeability and a vertical permeability of nearly nil, a high ground water table and an impervious layer near the ground water surface, high evaporation and low rainfall. Thus, the tribunal rejected the claim of the State for irrigating 11 lakhs acres in Ranns and Banni areas and granted a limited allocation of 9.00 MAF of water in favour of the State of Gujarat. The tribunal has, however, given the concerned States choice to utilise the quantity of water falling to their share in their own way. 4. The State Government, out of 9 MAF water provided, 7.94 MAF water diverted or for irrigation and 1.06 MAF allocated for domestic and SCA/3358/1999 5/47 JUDGMENT industrial use. It appears that because of the limited water allocation, proportionate water requirement for Kachchh region was worked out as 0.15 MAF. 5. The petitioners in this petition, have challenged the decisions of meagre allocation of water to the Kachchh areas on various grounds and are also seeking directions for reconsideration of the decisions taken by the State in relation to allocation of water to Kachchh. 6. We have heard Mr Mihir Joshi, learned Sr.Counsel appearing with Mr N V Anjaria for the petitioners, Mr S N Shelat, learned Advocate General appearing for respondent no.1-State of Gujarat and Mr Kamal Trivedi, learned Addl.Advocate General appearing for Sardar Sarovar Nigam Ltd. (for short 'SSNL'), respondent No. 2 at length. We have also gone through the entire pleadings and various reports and decisions cited before us. 7. Learned Counsel for the petitioner submitted that the decisions of the State Government regarding allocation of water for irrigation to Kachchh district ignores the constitutional imperative of distributing material resources of the community so as best to sub-serve the common good. According to the learned counsel, water of Narmada river apportioned to the State of Gujarat by the NWDT to be allocated for such use and in such areas within its territory as determined by the State, SCA/3358/1999 6/47 JUDGMENT constitutes a material resource of the community. The State is obliged under Article 38(2) of the Constitution to strive to minimise inequalities of income, to eliminate inequalities in status, facilities and opportunities not only amongst individuals but also amongst group of people residing in public areas. By inviting our attention to Article 39(a) of the Constitution, it was submitted that the State was obliged to direct its policy towards securing the right to an adequate means of livelihood and under (b) that the ownership and control of the mateiral resources of the community are so distributed as best to sub-serve the common good. According to the learned counsel, 'common good' envisaged in the Constitution is not merely the greatest good of the greatest number but is governed by the key word 'distribute' which is the genus of the article and must be given full play as it fulfils the basic purpose of restructuring the economic order. Each word in the article has a strategic role and the whole article has a mission. By inviting our attention to various authorities on the point as under, (i) State of Karnataka v. Ranganath Reddy (AIR 1978 SC 80 (iv Jacob v. Kerala Water Authority (1991) 1 SCC 28 (ii) Madan Mohan Pathak v. Union of India (1978) 2 SCC 50 (iii) Video Electronic v. State of Punjab (1990) 3 SCC 87 SCA/3358/1999 7/47 JUDGMENT it was submitted that the Directive Principles enshrined in Articles 38 and 39 must be harmonised with economic unity as well as economic development of developed and under developed areas. Elaborating his submission, it was stated that the special disadvantages of Kachchh in relation to availability of water, availability of an alternative source of livelihood other than agriculture and dependence of a large number of people on such availability of water, would oblige the State to undertake an affirmative action by unequal (higher) allocation of water to the region to bring about real equality. The learned counsel highlighted the circumstances by showing that Kachchh suffers special disadvantages regarding availability of water and its need for water would take precedence over the necessity and/or requirement of water to other regions by inviting our attention to various grounds narrated given in the petition and details of the factual aspects of the case. 8. On minutely examining the aforesaid authorities cited before us wherein, it has been laid down that although Articles 38 and 39 of the Constitution and the Directive Principles laid down therein are fundamental in the governance of the country, the State is under the obligation to implement them in making laws. The Court can also give vitality and effect by using them as criteria of reasonableness while SCA/3358/1999 8/47 JUDGMENT deciding the question of validity of legislation and executive action. There cannot be any dispute with respect to the principles laid down in the aforesaid decisions. The question which requires to be considered is whether allocation of the water is consistent with the provisions of Articles 39[b] and [c] of the Constitution of India. In other words, whether distribution of Narmada water made by the State to various districts is to sub-serve the common good. It is required to be borne-in- mind that the Directive Principles of State Policy and Article 39 of the Constitution cannot in the very nature of things can be enforced by a Court of law and therefore, the said decision taken by the State in the present case, cannot be challenged on the ground of violation of the said Article. However, in the instant case, the parties have argued extensively on this question and, therefore, we have to decide the legality and validity of the decision of the State Government regarding the distribution of the Narmada Water for Kachchh region. 9. Learned counsel for the petitioner submitted that the decisions of the State Government are not based on the relevant criteria/parameters but on irrelevant considerations. The learned counsel has given the relevant parameters for allocation of water as under: “i. That requirement of irrigation should have priority over power. ii. That irrigation should be extended to the maximum area within SCA/3358/1999 9/47 JUDGMENT physical limits of command subject to availability of water and in particular to arid border areas to encourage settlement. iii. Culturable area. iv. Population dependent on water v. Drought areas vi. Economic needs including requirements for irrigation vii. Geography, hydrology, climate viii. Economic and social needs ix. Comparative costs of alternative means of satisfying the economic and social needs of the region. x. Availability of other resources. xi. To cover as large a part of the State to be commanded by the project as possible. xii. To cover special areas where water is relatively scarce and rainfall is undependable even though such areas would be relatively difficult from the point of irrigation. xiii. To spread water thinly over the area in order to maximise total returns from water.” 10. In the submission of the learned counsel for the petitioners, the decision taken by the State in relation to the allocation of water to Kachchh did not take into account the aforesaid factors but are based on and/or supported by the NWDT award and the reports of the Narmada Planning Group (in short 'NPG') and the D T Buch Committee which are irrelevant, in consequential and in any case do not even support such decisions on facts. He invited our attention SCA/3358/1999 10/47 JUDGMENT to the aforesaid award/reports and submitted that the decision to allocate water of 0.15 MAF for irrigating 42,800 hectares of Kachchh is stated to be based only on the NWDT award. He further submitted that NWDT has not assessed or adjudicated that Kachchh is entitled to irrigation in respect of 1,14000 acres (42,800 hectares) as this was not even the issue before the tribunal, which was only concerned with equitable apportionment of water amongst parties States. He also submitted that in absence of any determination by the NWDT regarding the area to be irrigated in Kachchh and the decision to adopt the purported determination is wholly misconceived. In any case, in absence of any independent justification for seeking to irrigate only 42,800 hectares (1,14,000 acres) out of 23,63,000 hectares of Kachchh (excluding the Ranns and Banni), by inviting our attention to the award of NWDT wherein it was specifically stipulated that for a variety of reasons, it may become necessary to provide water for irrigation to areas not covered by proposals for use of Narmada waters at present and it is therefore, reasonable to give the party Sates the freedom to vary within their share of water the pattern of water use and the areas to be served by such use within their respective State Boundaries as it may consider necessary, the State could not have considered to allocate the water on account of NWDT award. 11. Learned counsel for the petitioner also challenged the said decision SCA/3358/1999 11/47 JUDGMENT of the revision in the allocation of water from 0.203 MAF to 0.256 MAF is stated to be only on the basis of the report submitted by the Narmada Project Group. By contending that NPG report does not justify or even incorporate a decision/finding regarding enhancement of area or water allocation. Similarly, the revision by the State in the area from 42,800 hectares to 57,300 hectares and of allocation of water from 0.203 MAF to 0.256 MAF which is stated to be only on the basis of this assessment was challenged on the ground that the assertion by the State is vague purported to have been placed on record. He has submitted that the report of D.T. Buch committee whereby a decision was taken to the effect that the revision in the area from 57,300 hectares to 1,12,700 and of allocation of water from 0.256 MAF to 0.496 MAF is stated to be on the basis of the said report. The learned counsel has challenged the decision of the State Government on the basis of D.T. Buch committee's report by contending that this is stated to be a technical study undertaken with the objectives of studying how best irrigation water allocation for Kachchh region from SSP can be further augmented within the constraints of the NWDT Award. The study recommended the option of augmenting water supply by storage of surplus water. This was calculated to be 0.223 MAF. Therefore, it was submitted that this study was not concerned with enhancement of allocation of water from 9MAF allocated to the State of SCA/3358/1999 12/47 JUDGMENT Gujarat. It was further submitted that enhancement of area from 57300 hectares to 1,12,700 hectares is mere mathematical extrapolation on the basis that 0.256 MAF would serve 55,700 hectares and therefore, additional 0.223 MAF would pro-rata serve 55,700 hectares . This indicates that if more water were to be allocated to the region further additional areas could be brought under irrigation. If this is accepted as a basis, the decision of the State is wholly irrational since determination of area to be irrigated based on the relevant parameters must precede the consequential allocation of water and it cannot be the other way round, more so when the study itself recommends that it is not possible to allocate more water to Kachchh since farmers in Central Gujarat, North Gujarat and Saurashtra want more water. Learned counsel criticised the report of Buch Committee by contending that there is no study, finding or averment that land other than 42,800 hectares of Kachchh is unsuitable for irrigation for any reason whatsoever. It is submitted that Buch Committee report in fact finds that there is scope of putting a considerable part of the lands to productive use with spread out irrigation. The fact that the study has recommended pro-rata revision of culturable command area to 1,12,700 hectares underlines the potential of irrigating additional land. However, the study does n not assess or determine why land more than 1,12,700 hectares should not be considered for irrigation. SCA/3358/1999 13/47 JUDGMENT 12. On the basis of the WAPCOS report in relation to allocation of surplus water recommends irrigation of 3,12,000 hectares, it was submitted that the said fact once again highlights the fact that the restriction of area to 42,800 hectares at the first stage was wholly unjustified and by correctly identifying land for irrigation a substantially higher allocation of water ought to have been made by the State at the first stage itself. It was further submitted that the claim for 42,800 hectares appears to be based on redundant planning. Initially a limited area of Kachchh was proposed to be irrigated from the Saurashtra branch canal by lift system. This is why Kachchh is placed under zone XI relating to Saurashtra, though it is an independent district. The other part of Kachchh district was proposed to be served through the Banni branch canal. Presently the Kachchh branch canal takes off from the main canal itself and carries water by flow, and the Banni branch was done away with after the NWDT award, though it was to carry water for irrigating 1.60 lakhs acres of Kachchh mainland and reinstituted only in part thereafter, despite which the same area of 42,800 hectares has been proposed to be irrigated. 13. Learned counsel also challenged the decisions of the State Government by contending that the same are arbitrary, discriminatory and SCA/3358/1999 14/47 JUDGMENT unconstitutional since far from undertaking affirmative action by positive discrimination in water allocation for Kachchh on account of its special facts and disadvantages as contended above, the State has allocated a lower share of water and adopted a lesser area of Kachchh, than would otherwise come to its share even on proportionate/equal allocation by producing the following relevant comparative data regarding allocation of water: District Cultivable area (ha) Average rainfall (mm) Alternativ e sources(lo cal irrigation projects- ground water) SSP Irrigation (ha.) Water Allocation (MAF) Bharuch 5,07,800 877 Yes 1,59,559 0.668 Vadodara 5,93,000 917 Yes 2,62,310 1.170 Panchmahals 5,47,400 1026 Yes 6201 0.028 Kheda 5,36,100 769 Yes 1,01,876 0.454 Gandhinagar 51,900 533 Yes 9608 0.043 Ahmedabad 6,76,200 782 Yes 3,67,379 1.484 Mehsana 7,53,200 613 Yes 1,93,194 0.740 SCA/3358/1999 15/47 JUDGMENT District Cultivable area (ha) Average rainfall (mm) Alternativ e sources(lo cal irrigation projects- ground water) SSP Irrigation (ha.) Water Allocation (MAF) Banaskantha 9,25,600 751 Yes 2,55,071 1.138 Surendranag r 7,82,500 487 Yes 3,47,711 1,494 Bhavnagar 7,03,100 620 Yes 64475 0.267 Rajkot 8,10,000 594 Yes 44716 0.199 Kachchh 23,63,100 340 No 1,12,700 0.496 It was submitted by the learned counsel that the above table indicates the discriminatory allocation of water and area for Kachchh, which would amount to discrimination even otherwise. Finally, he submitted that the decision making process suffers from lack of transparency, undue haste and premeditation. To elaborate the same, it was submitted that the decision/s regarding allocation of water to Kachchh, despite their public importance, have not been formally expressed at all at any stage and that the State has not even produced the decisions regarding allocation of SCA/3358/1999 16/47 JUDGMENT water to Kachchh. It was submitted that it is not known as to who has taken the decision or the procedure adopted for the same. There is no contemporaneous record establishing considerations/factors which have weighed with the Government in taking the decisions. In support of this, our attention was invited to a decision rendered by the Apex Court in the case of Gulabrao v. State of Gujarat, (1996) 2 SCC 26 wherein the Apex Court observed that the cabinet is driving and steering body responsible for governance and its primary function is to formulate policies in conformity with the directive principles of the Constitution and carry on the executive function of the State as per the Constitution and the laws. 13.1. One more decision was cited by the learned counsel in the case of R K Jain v. Union of India, (1993) 4 SCC 119. In para 25 it was observed that the cabinet is a constitutional mechanism to ensure that before important decisions are reached many sides of the questions are weighed and considered which would mean that much work must be done beforehand in inter-departmental discussion and preparation. 14. Applying the aforesaid principles o the present case, it was submitted that the decision to allocate water for 42,800 hectares of Kachchh area for irrigation was taken within 24 hours of the award of the NWDT on 16.5.1978, this would go to show that the pre-meditation is SCA/3358/1999 17/47 JUDGMENT apparent since even after the NWDT clarified the issue in its amended final award on 7.12.1979 that within its territory each State had the freedom to vary the area and use of water as found necessary, there was no reconsideration of the matter. It was further submitted that there is no decision on record adopting either wholly or in part any recommendations of the NWDT, NPG report or the D T Buch Committee report, particularly in the context of the fact that all the reports contemplate further studies. 15. Mr Shelat has submitted that this petition itself is misconceived. Since there is no enforceable right in favour of the petitioners to receive water for irrigation purpose, only out of limited, 7.94 MAF allocated by the tribunal to the State. He has submitted that the State has taken decisions from time to time to increase the quantity of water to Kachchh district and at present total availability of water for irrigation purpose would be 1.496 MAF. It is his submission that while determining of quantity of water for allocation to Kachchh district, the State has kept i n view the interest of all concerned and also the factors relevant for this purpose. He has placed reliance on several decisions of the Apex Court which will be discussed at appropriate place in the judgment. 15.1. Mr Trivedi submitted that the initial allocation of water for irrigation in case of Kachchh district was based on adjudication of water SCA/3358/1999 18/47 JUDGMENT dispute by NWDT which was made after extensive study of all relevant factors which came to be approved even by the Apex Court. He has further submitted that against the total demand of 22.02 MAF water by the State of Gujarat before the NWDT including the demand of 6.57 MAF for Kachchh, only 9 MAF water i.e. 7.94 MAF for irrigation and 1.06 MAF for domestic purpose was allocated to the State. He has further submitted that even thereafter the demand of Kachchh district has been considered several times and gradual increase in the quota for the said district has been made. He has brought to our notice the fact that initially as per the award of the tribunal 0.15 MAF was allocated for Kachchh district which was increased from time to time and ultimately 1.583 MAF quantity of water has been earmarked for the said district. He has also stated that in terms of percentage of the increase is from 6.25% to 13.7%. According to Mr Trivedi, out of the total irrigable mainland i.e. 10.25 lakh ha, 5.14 ha, will be irrigated with the help of Narmada water which forms a substantial portion of the main land. Lastly, he has submitted that so far as the requirement of water is concerned, the allocation of water to Kachchh district will fully meet the requirement., He has