Case: Atma Linga Reddy &amp; Others Vs. Union Of India &amp; Others

mentioned in paragraph 2.1 of the said order was not in control of the Rajolibanda Diversion Canal. It seems that this may be through oversight or due to absence of specific information being made available to this Tribunal. It may be a case that this part of the river being in the mid stream may not be within the control of the Tungabhadra Board, though, however, the release of water for the Diversion Canal is regulated by the said Board, but then it would make no difference because of the reasoning given in paragraph 7.1 of the said order. The Hydel Power Scheme, as it appears at the moment, for diversion of water to the Hydel Power Canal at Rajolibanda, proposes to utilize electronic sensors, which would not operate until the level of water is 15 cm above he anicut. The depth of the sill level of Rajolibanda Diversion Canal being 1082 ft. compared to the crest level of the anicut at 1090 ft. is sufficient at the moment to divert sufficient water in Rajolibanda Diversion Canal for the purpose and object it was conceived and constructed to enable AP to receive major part of the water through Rajolibanda Diversion Canal. Even if the sill level of the Hydel Power Canal is at 1083 ft., it will not operate until the water level is 15 cm above 1090 ft. If it is so from the argument made by Mr. Holla, it does not seem that there will be any effect on the diversion of water in Rajolibanda Diversion Canal. If the water level is 15 cm above he anicut, then there will be sufficient water to cater both to Rajolibanda Diversion Canal and the Hydel Power Canal. If it is up to 15 cm; no water will flow to the Hydel Power Canal but if it is above 15 cm, then water would have gone directly to the mainstream and it would be so going both over the anicut and through the Hydel Power Canal since this diversion joins Krishna ultimately downstream the anicut. 10.1. It is apprehended by Andhra Pradesh that the electronic sensors may not operate properly. Mr. Holla stated that it would take another two years to make the Hydel Power Canal functional. Therefore, at the moment there could be no such apprehension. It is in the womb of the future. Mr. Gupta contended that in such a case either this Tribunal should appoint an `Authority to inspect the installation of the electronic sensors, and its functioning and functionality after it is installed or there may be an option given to AP to depute its officers to inspect either alone or jointly with the officers of Karnataka, both at installation and at the functioning and functionality after installation of the sensors. We think that, this could be considered after the sensors are installed and become functional, provided any difficulty is actually felt in its operation. 10.2. The scheme as proposed does not seem to be contrary to the Bachawat Award; inasmuch as no water is utilized for operating a hydel project and it was rightly found by this Tribunal that at this prima facie stage there seems to be nothing before this Tribunal to conclude that the proposed diversion would enable Karnataka to utilize the Tungabhadra waters inconsistent with the Bachawat Award. However, we have also observed that in case power could be generated without affecting the existing irrigation system, then we found no reason to interfere at this stage, on the basis of the information and the materials placed before this Tribunal by the respective parties. As such, we do not think that there is any necessity of Clarification-III as contended by Mr. Gupta. That apart, the right of Karnataka and that of AP are well protected in the said order in paragraph 9 as pointed out earlier". 51. From the above observations also, it is clear that the Tribunal is mindful of the controversy and the issues raised relating to Power Project. The matter is very much before the Tribunal. It has also considered various applications and passed orders from time to time. And for that reason also, the present petition is liable to be dismissed.52. Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in the affidavit-in-reply. Interim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The present writ-petition was heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondent - State of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]33. Bare reading of the above provisions leaves no room for doubt that they are very wide. Section 3 deals with situations not only where a water dispute has actually arisen between one State and another State, but also where such dispute is "likely to arise". Moreover, it applies not only to those cases in which interest of the State has been prejudicially affected, but also embraces within its sweep interest of any of the inhabitants thereof which has been affected or likely to be affected. To us, therefore, it is abundantly clear that such a dispute is covered by Article 262 of the Constitution and should be dealt with in accordance with the provisions of Act XXXIII of 1956 and it cannot be challenged in any Court including this Court.In view of the above legal position, the submission of the petitioners that the bar envisaged by Section 11 of the Act would not cover cases of private individuals or petitioners approaching this Court as pro bono publico, and its application is limited to States has no force and we express our inability to agree with the learned counsel.38. Ultimately, what is contemplated by the Act is to look into, to protect and to safeguard interests of the State as also of its subjects and citizens. Precisely for that reason, Section 3 has been worded widely. It provides for constitution of Tribunal for adjudication by the Central Government on a dispute raised or complaint made by any State that interest of the State or any of the inhabitants thereof has been prejudicially affected or likely to be affected. In our considered opinion, therefore, the present petition under Article 32 is not maintainable.Reference was also made to A.P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd.), (2001) 2 SCC 62. In that case also, the Court referred to Resolution of UNO, observations of this Court in Narmada Bachao Andolan and emphasized the right to access to drinking water as basic and fundamental to life and a duty of the State under Article 21 to provide clean drinking water to its citizens. The Court also insisted on the need of healthy environment and sustainable development as a part of fundamental right to life embodied in Article 21 of the Constitution.Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in theInterim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The presentwas heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondentState of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for.In exercise of power under Article 262 of the Constitution, Parliament enacted a law known as theRiver Water Disputes Act, 1956 (ACT XXXIII of 1956) with a view "to provide for the adjudication of disputes relating to Waters ofrivers and river valleys".In our considered opinion, however, preliminary objections raised on behalf of the contesting respondents are well founded and are required to be upheld. We have already extracted the relevant provisions of the Constitution as also of Act XXXIII of 1956. The Founding Fathers of the Constitution were aware and conscious of sensitive nature ofdisputes relating to waters. They, therefore, provided machinery for adjudication of such disputes relating to waters ofrivers or river valleys. By enacting Article 262, they empowered Parliament to enact a law providing for adjudication of any dispute or complaint with respect to the use, distribution or control of waters of anyriver or river valley. They, however, did not stop there. They went ahead and empowered Parliament to exclude the jurisdiction of all Courts including the final Court of the country in such disputes. The intention of Framers of the Constitution, in our opinion, was clear, obvious and apparent. It was thought proper and appropriate to deal with and decide such sensitive issues once and for all by a law made by Parliament.In view of the above legal position, the submission of the petitioners that the bar envisaged by Section 11 of the Act would not cover cases of private individuals or petitioners approaching this Court as pro bono publico, and its application is limited to States has no force and we express our inability to agree with the learned counsel.38. Ultimately, what is contemplated by the Act is to look into, to protect and to safeguard interests of the State as also of its subjects and citizens. Precisely for that reason, Section 3 has been worded widely. It provides for constitution of Tribunal for adjudication by the Central Government on a dispute raised or complaint made by any State that interest of the State or any of the inhabitants thereof has been prejudicially affected or likely to be affected. In our considered opinion, therefore, the present petition under Article 32 is not maintainable.From the relevant provisions of the Constitution, Act XXXIII of 1956 and the decisions referred to hereinabove, there is no doubt in our mind that the present writ petition under Article 32 of the Constitution is not maintainable.45. But this is not the only ground on which the petition is liable to be dismissed. There is yet another equally sustainable andreason for not entertaining thegrievance of the petitioners raised in this petition.From the above observations also, it is clear that the Tribunal is mindful of the controversy and the issues raised relating to Power Project. The matter is very much before the Tribunal. It has also considered various applications and passed orders from time to time. And for that reason also, the present petition is liable to be dismissed.52.Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in theInterim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The presentwas heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondentState of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for.