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

2. It is stated by the petitioners in the petition that they are citizens of India and are residents of District Mehboobnagar in the State of Andhra Pradesh. They are having agricultural lands in the ayacut under RDS (Rajolibanda Diversion Scheme). According to the petitioners, RDS is anirrigational project covering lands in the States of Karnataka and Andhra Pradesh. The project comprises of an ayacut of RDS on the river Tunghabadrariver), tributary of river Krishna, near Village Rajolibanda in Raichur District in the State of Karnataka. The canal is of the length of about 89 miles (143 KM) having discharge capacity of 850 cusecs of water. It was constructed by the then Nizam of Hyderabad before more than fifty years.3. According to the petitioners, consequent upon the reorganization of States under the States Reorganization Act, 1956, the State of Andhra Pradesh was formed. 26/27 miles (41.6 KM) of the canal with an ayacut of 5,900 acres fell within the State of Mysore (now the State of Karnataka) while the remaining portion of about 63 miles (100.4 KM) of canal with an ayacut of 87,000 acres came within the State of Andhra Pradesh.4. The petitioners stated that RDS caters needs of drinking and irrigation water in Mehboobnagar District, which is aarea of the State of Andhra Pradesh. About 40,000 farmers, out of which 30,000 are small and marginal farmers, are entirely dependent on the water from the said canal for drinking, irrigation, sanitation and other domestic purposes.5. The petitioners contended that respondent No. 2State of Karnataka has acted illegally and unlawfully in sanctioning and approving the Power Project in favour of respondent No. 4a private party. Due to the said project, sufficient water for drinking purpose and for irrigation facilities is not available to the residents and farmers of District Mehboobnagar of the State of Andhra Pradesh. The petitioners in the larger interest of the public are, therefore, constrained to approach this Honble Court under Article 32 of the Constitution.6. The petitioners stated that for equitable distribution of water of river Krishna and the river valley thereof, the Central Government, by a notification dated April 10, 1969 under theWater Disputes Act, 1956 (ACT XXXIII of 1956) (hereinafter referred to asAct) created and established Krishna Water Disputes Tribunal, headed by Honble Mr. Justice Bachawat, the then sitting Judge of this Honble Court. The Tribunal was to resolve claims and disputes between various States and allocation of water of river Krishna and its tributaries among the riparian States. The States of Maharashtra, Karnataka and Andhra Pradesh are the riparian States of theKrishna river. Whereas the State of Karnataka is at the top, the State of Andhra Pradesh is the lowest riparian State. The Tribunal considered the competing claims of all the States and submitted interim report on December 24, 1973. The final report was submitted by the Tribunal on December 27, 1976 under Section 5 of the Act. The Central Government notified the final report as required by Section 6 of the Act. The decision of the Tribunal has the force of a decree of the Supreme Court (this Court).7. It is the allegation of the petitioners that inthe State of Karnataka granted unilateral sanction and approval to respondent No. 4 to construct and operate a Mini Hydel Power Project to generate 4.5 Mega Watts power using the water of RDS without the consent of the State of Andhra Pradesh. An agreement was entered into between the State of Karnataka (respondent No. 2) and Sree Swarna Energyprivate Company (respondent No. 4) on September 26, 2003. The action was taken by respondent No. 2State of Karnataka illegally and unlawfully with a view to oblige respondent No.4. Apart from the State of Andhra Pradesh, approval or consent of other riparian State, i.e. the State of Maharashtra was also not taken nor was the matter referred to Central Electrical Authority (CEA) or to Central Water Commission (CWC). As the lowest riparian State, the State of Andhra Pradesh will suffer the most. Moreover, the execution of the Power Project was entrusted to a private agency. It was alleged that one Mr. Y.V. Subba Reddy, who is the Managing Director of the Company isof Dr. Y.S. Rajasekhar Reddy, Honble the Chief Minister of the State of Andhra Pradesh. Thus, the project has been entrusted to respondent No. 4 with a view to oblige the said respondent. The Power Project would remain in operation for a period of thirty years from the date of commissioning of the power house and as per the term in the agreement, thereafter it would be handed over to the State of Karnataka. But in the agreement itself, there is a stipulation for renewal at the option of the company for a further period of twenty years. Thus, virtually, the power project has been assigned to an individual operator and put in the hands of privatemanagement for a period of half a century.8. Petitioners have further stated that the power channel is so designed that it will take away water from pondage of RDS which would result in substantially curtailing the flow of water diverting water to Power Project. It would adversely affect 40,000 farmers, their family members and the residents in the ayacut area of RDS canal in the State of Andhra Pradesh.9. According to the petitioners, water is the most essential natural resource upon which the life of all living beings depends. The human need of drinking water is paramount, perennial and eternal. Of all human needs, need for drinking and domestic use of water is inevitable. Equally important is the role of water in irrigation which is the only source that enables production ofanother essential component for survival of human life. Right to water, therefore, is held to be part and parcel of right to life within the meaning of Article 21 of the Constitution. In multiple uses of water, drinking purpose must have the top most priority. The second preference should be given to irrigation. Power production cannot have precedence over them. Use of water for producing electricity can never be preferred at the cost of drinking purpose or irrigation facility. The petitioners have, therefore, prayed that appropriate relief is required to be granted by this Court by allowing the petition and by issuing necessary directions to the respondents.10. On May 9, 2005, notice was issued by this Court. Affidavits and further affidavits were filed by the parties. The Registry was then directed to place the matter for final hearing on aday. That is how the matter has been placed before us.

Reasoning:
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.