# ATMA UNGA REDDY AND ORS v. UNION OF INDIA

- **Citation:** [2008] 10 S.C.R. 741
- **Court:** Supreme Court of India
- **Decided:** 2008-07-10
- **Bench:** C.K. Thakker, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/atma-unga-reddy-and-ors-v-union-of-india-23374
- **Pages:** 26

## Headnote

A
B
Inter State River Water Disputes Act, 1956: s.11 - Jurisdiction to entertain - Held: Not maintainable - s. 11 bars jurisdiction of all Courts including Supreme court to entertain ad- c
;udication of any water disputes - The effect of the provisions
of s. 11 read with Article 262 of Constitution is that the entire
judicial power of the State and, of the courts including that of
the Supreme court to adjudicate upon original dispute or complaint with respect to the use, distribution and '-::ontrol of the D
water river valleys has been vested in the Tribunal appointed
under s. 4 - Plea that the bar envisaged in s. 11 would not cover
cases of private individuals as pro bona publico and that its
application is limited to States not tenable - Constitution of India, 1950- Articles 262, 131.
Constitution of India, 1950: Articles 32, 262, 131 - Writ
petition seeking adjudication on river water disputes between
States - Maintainability of - Held: Not maintainable - s.11 of
1956 Act bars jurisdiction of all Courts including Supreme Court
E
to entertain adjudiction of any water disputes - On facts, the
F
question of construction of Mini Hyde/ Project, is before the
Tribunal constituted under the 1956 Act and the matter is sub
iudice - Tribunal has also considered various applications
and passed orders from time to time and therefore for this reason a/so writ petition is liable to be dismissed - Inter State G
River Water Disputes Act, 1956 - s11.
Administrative law: Public authority/State - Duty of, before the Court - Held: It is the duty of State orpublic authority
to place all the facts before the Court.
741
H
742
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
The present Writ Petition in the nature of Public Interest Litigation invoking Article 3.2 of the Constitution was
filed by residents of District Mehboobnagar in the State
of Andhra Pradesh wherein the petitioners prayed for an
appropriate writ, direction or order for restraining respon8
dent no.2, State of Karnataka and respondent no.4 from
constructing a Mini Hydro Power Project at Rajolibanda
Diversion Scheme (RDS) by quashing and cancelling the
power project. According to petitioners, the State of
Karnataka acted illegally and unlawfully in sanctioning
c and approving the Power Project in 2002-03 in favour of
respondent No. 4-a private party. Due to the said project,
sufficient water for drinking purpose and for irrigation facilities was not available to the residents and farmers of
District Mehboobnagar of the State of Andhra Pradesh. It
0
was alleged that the Managing Director of respondent no.4
company was related to the Chief Minister of the State of
Andhra Pradesh and the project was entrusted to respondent No. 4 with a view to oblige him.
It was further alleged that the Power Project would
E remain in operation for a period of thirty years from the
date of commissioning of the power house with a stipulation for renewal at the option of the private company for a
further period of twenty years.
F
Dismissing the Writ Petition, the Court
HELD: 1.1. In the light of the scheme as envisaged
by the Makers of the Constitution as also by Parliament
under the Inter-State River Water Disputes Act, 1956 in
connection with water disputes between inter-States, it
G is clear that such disputes cannot be made subject matter of petition either in a High Court under Article 226 or in
this Court under Article 32 of the Constitution. The Founding Fathers of the Constitution were aware and conscious
of sensitive nature of inter-State disputes relating to waters. They, therefore, provided machinery for adjudication
H
ATMA LINGA REDDY & ORS. v. UNION OF
INDIA
743
of such disputes relating to waters of inter-State rivers or A
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 any inter-State river or river valley.
v.
They, however, did not stop there. Th

## Text

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[2008] 10 S.C.R. 741
ATMA UNGA REDDY AND ORS.
v.
UNION OF INDIA
(Writ Petition (C) No. 197 of 2005)
JULY 10, 2008
[C.K. THAKKER AND D.K. JAIN, JJ.]
A
B
Inter State River Water Disputes Act, 1956: s.11 - Jurisdiction to entertain - Held: Not maintainable - s. 11 bars jurisdiction of all Courts including Supreme court to entertain ad- c
;udication of any water disputes - The effect of the provisions
of s. 11 read with Article 262 of Constitution is that the entire
judicial power of the State and, of the courts including that of
the Supreme court to adjudicate upon original dispute or complaint with respect to the use, distribution and '-::ontrol of the D
water river valleys has been vested in the Tribunal appointed
under s. 4 - Plea that the bar envisaged in s. 11 would not cover
cases of private individuals as pro bona publico and that its
application is limited to States not tenable - Constitution of India, 1950- Articles 262, 131.
Constitution of India, 1950: Articles 32, 262, 131 - Writ
petition seeking adjudication on river water disputes between
States - Maintainability of - Held: Not maintainable - s.11 of
1956 Act bars jurisdiction of all Courts including Supreme Court
E
to entertain adjudiction of any water disputes - On facts, the
F
question of construction of Mini Hyde/ Project, is before the
Tribunal constituted under the 1956 Act and the matter is sub
iudice - Tribunal has also considered various applications
and passed orders from time to time and therefore for this reason a/so writ petition is liable to be dismissed - Inter State G
River Water Disputes Act, 1956 - s11.
Administrative law: Public authority/State - Duty of, before the Court - Held: It is the duty of State orpublic authority
to place all the facts before the Court.
741
H
742
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A
The present Writ Petition in the nature of Public Interest Litigation invoking Article 3.2 of the Constitution was
filed by residents of District Mehboobnagar in the State
of Andhra Pradesh wherein the petitioners prayed for an
appropriate writ, direction or order for restraining respon8
dent no.2, State of Karnataka and respondent no.4 from
constructing a Mini Hydro Power Project at Rajolibanda
Diversion Scheme (RDS) by quashing and cancelling the
power project. According to petitioners, the State of
Karnataka acted illegally and unlawfully in sanctioning
c and approving the Power Project in 2002-03 in favour of
respondent No. 4-a private party. Due to the said project,
sufficient water for drinking purpose and for irrigation facilities was not available to the residents and farmers of
District Mehboobnagar of the State of Andhra Pradesh. It
0
was alleged that the Managing Director of respondent no.4
company was related to the Chief Minister of the State of
Andhra Pradesh and the project was entrusted to respondent No. 4 with a view to oblige him.
It was further alleged that the Power Project would
E remain in operation for a period of thirty years from the
date of commissioning of the power house with a stipulation for renewal at the option of the private company for a
further period of twenty years.
F
Dismissing the Writ Petition, the Court
HELD: 1.1. In the light of the scheme as envisaged
by the Makers of the Constitution as also by Parliament
under the Inter-State River Water Disputes Act, 1956 in
connection with water disputes between inter-States, it
G is clear that such disputes cannot be made subject matter of petition either in a High Court under Article 226 or in
this Court under Article 32 of the Constitution. The Founding Fathers of the Constitution were aware and conscious
of sensitive nature of inter-State disputes relating to waters. They, therefore, provided machinery for adjudication
H
ATMA LINGA REDDY & ORS. v. UNION OF
INDIA
743
of such disputes relating to waters of inter-State rivers or A
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 any inter-State river or river valley.
v.
They, however, did not stop there. They went ahead and B
empowered Parliament to exclude the jurisdiction of all
Courts including the final Court of the country in such
disputes. The intention of Framer.: of the Constitution, was
clear, obvious and apparent. It was thought proper and
appropriate to deal with and decide such sensitive issues c
once and for all by a law made by Parliament. [Paras 2s;
30] [755-H; 756-A; 757-0,E & F]
1.2 It is no doubt true that Article 262 of the Constitution is not self-executory inasmuch as it does not, by it1
self, take away the jurisdiction of this Court in respect of D
disputes relating to waters of inter-State rivers or rivervalleys. It is an enabling provision and empowers Parliament to enact a law providing for adjudication of such
disputes or complaints, excluding the jurisdiction of all
Courts including this Court. Article 131 of the ConstituE.
tion which enables the Central Government or a State Government to institute a suit in this Court on its Original Side
in certain cases also cannot be invoked in inter-State
water disputes in view of s.11 of the Act. In other words,
the provisions of Article 131 of the Constitution have to F
be construed harmoniously subject to the provisions of
Article 262 of the Constitution. A petition under Article 32
of the Constitution, hence, cannot be entertained by this
Court. [Para 28] [756-C,D & E]
Tamil Nadu Cauvery Sangam v. Union of India, (1990) 3 G
sec 440 - relied on.
2. 5.3 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 H
744
SUPREME COURT REPORTS
[2008] 10 S.C.R.
-'.-...
A
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. Therefore, it is abundantly clear that such a
B dispute is covered by Article 262 of the c.onstitution and
")(
should be dealt with in accordance with the provisions of
1956 Act and it cannot be challenged in any Court including this Court. [Para 33] [758-G & H; 759-A & B]
Cauvery Water Disputes Tribunal, Re (1993) Supp 1
c SCC 96 (II) - relied on.
3. The submission of the petitioners that the bar envisaged by s.11 of the Act would not cover cases of private individuals or petitioners approaching this Court as
D pro bona publico, and its application is limited to States
t
has no force. 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, s.3 has been worded widely. It provides for conE stitution 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. Therefore, the present petition under Article 32 is
not maintainable. [Paras 37,38] [760-8,C,D & E]
F
-ly
State of Haryana v. State of Punjab (2002) 2 SCC 507;
State of Karnataka v. State of Andhra Pradesh & Ors. (2000) 9
sec 572 - held inapplicable.
Narmada Bachao Andholan v. Union of India & Ors.
G (2000) 10 SCC 664; AP Pollution Control Board II v. Prof
M. V Nayudu (Retd.) & Ors. (2001) 2 SCC 62 - referred to.
~~
¥
4. There is yet another equally sustainable and wellfounded reason for not entertaining the so-called grievH ance of the petitioners raised in this petition. The ques-
ATMA UNGA REDDY & ORS. v. UNION OF
!NOIA
745
tion of construction of Mini Hyde! Project, challenged in A
the present proceedings, is very much before the Tribunal constituted under the 1956 Act and the matter is sub
iudice. The State of Andhra Pradesh prayed for interim relief in respect of the above issue by filing Interim Applica-
-.r:
tion No. 8 of 2006 before the Tribunal. One of the prayers B
in I.A. 8 of 2006 related to 'Rajolibanda Anicut Mini Hyde!
Scheme' and injunction was sought restraining the State
of Karnataka from constructing or proceeding with the
said project. The Tribunal, however, did not grant interim
relief by an order dated November 15, 2006. The State of C
Andhra Pradesh filed another application being Interim
Application No. 28 of 2006 under sub-section (3) of s.5 of
the Act before the Tribunal for clarification of the earlier
order but even that application was dismissed on April
27, 2007 observing that no clarification was required. Tri0
bunal 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. [Paras
45,47,49,51] [762-B,C,F,G & H; 763-A,D,E; 765-F]
5. The State of Andhra Pradesh filed its counter affiE
davit in this matter on January 31, 2006. Before that date,
the Tribunal had already been constituted under the Chairmanship of Hon'ble 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 F
(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 in G
April, 2008 i.e. after substantial period of disposal of both
v
the applications. No reference whatsoever was made on
behalf of the State of Andhra Pradesh either to the Interim
Applications or to the orders passed thereon. The contesting respondents referred to those applications and H
746
SUPREME COURT REPORTS
[2008] 10 S.C.R.
A 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.
s 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 writ
petition is not maintainable and is liable to be dismissed,
c no further action is called for. [Para 52] [765-G & H; 766A,B,C,D & E]
D
E
F
G
H
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
197 Of 2005
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
A. K. Ganguli, G. Prabhakar and A. Raghunath for the Petitioners.
Anoop Choudhary, Annam D.N. Rao, Neelam Jain, Ashok
Bhan, WasimA. Quadri, Sunit Sharma, D.S. Mahra, D. Bharathi
Reddy, Aftaf Fatma, Debojit Barkakoti, Sanjay R. Hegde, Amit
Kumar Chawla and A. Rohan Singh for the Respondents.
Th~ Judgment of the Court was delivered by
C.K. THAKKER, J. 1. The present writ petition is insti-
· tuted by the petitioners as pro-bono publico and is in the nature
of Public Interest Litigation (PIL). The petitioners have appreached this Court by invoking Article 32 of the Constitution
praying for an appropriate writ, direction or order, restraining
respondent No. 2 - State of Karnataka and respondent No. 4 -
Sree Swarna Energy Limited, from constructing a Mini Hydro
Power Project at Rajolibanda Diversion Scheme ('RDS' for
short), Raichur District, Karnataka, by quashing and canceling
the PowerProject. A prayer is also made to direct the State of
Karnatakato regulate water at RDS anicut and to ensure smooth
flow of water in the RDS canal to the extent of full allocated wa-
•
t
+
..
-v
'
ATMA UNGA REDDY & ORS. v. UNION OF
747
INDIA [C.K. THAKKER, J.]
ter of 15.9 TMC to the State of Andhra Pradesh. By way of A
interim relief, a prayer is made to grant stay against construction of Power Project at RDS.
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
8
in the ayacut under RDS (Rajolibanda Diversion Scheme). According to the petitioners, RDS is an inter-State irrigational
project covering lands in the States of Karnataka and Andhra
Pradesh. The project comprises of an ayacut of RDS on the
river Tunghabadra (inter-State river), tributary of river Krishna, C
near Village Rajolibanda in Raichur District in the State of
Karnatka. 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.
D
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 remainE
ing p-ortion 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 drink-
-1
· ing and irrigation water in Mehboobnagar District, which is a
F
' '
~
drought-prone area 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.
G
5. The petitioners contended that respondent No. 2 - State
of Karnataka has acted illegally and unlawfully in sanctioning
and approving the Power Project in favour of respondent No. 4
....., a private party. Due to the said project, sufficient water for
H
,I
' .
748
SUPREME COURT REPORTS
[2008] 10 S.C.R.
'( •
A
drinking purpose and for irrigation facilities is not available to
the residents and farmers of District Meliboobnagar of the State
of Andhra Pradesh. The petitioners in the larger interest of the
public are, therefore, constrained to approach this Hon'ble Court
under Article 32 of the Constitution.
I
B
f6. The petitioners stated that for equitable. distribution of
·~
y
I
water of river Krishna and the river valley thereof, the Central
I
i
Government, bf a notification dated April 10, 1969 under the
'·
inter-State Water Disputes Act, 1956 (ACT XXXI 11 of 1956)
1.-
(hereinafter referred to as 'the Act') created and established
c Krishna Water Disputes Tribunal, headed by Hon'ble Mr. Justice Bachawat, the then sitting Judge of this Hon'ble 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,
D Karnataka and Andhra Pradesh are the riparian States of the
f
•.
inter-State Krishna river. Whereas the State of Karnataka is at
' r
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
~
E
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).
F
· 7. It is the allegation of the petitioners that in 2002-03, the
~
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
G agreement was entered into between the State of Karnataka
~
(respondent No. 2) and Sree Swarna Energy Limited-a private Company (respondent No. 4) on September 26, 2003. The ,,
").
action was taken by respondent No. 2 - State of Karnataka
illegally and unlawfully with a view to oblige respondent No.4.
H
~
•.
ATMA LINGA REDDY & ORS. v. UNION OF
749
l
INDIA [C.K. THAKKER, J.]
Apart from the State of Andhra Pradesh, approval or consent of A
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
y
riparian State, the State of Andhra Pradesh will suffer the most.
Moreover, the execution of the Power Project was entrusted to 8
a private agency. It was alleged that one Mr. Y.V. Subba Reddy,
who is the Managing Director of the Company is co-brother of
Dr. Y.S. Rajasekhar Reddy, Hon'ble 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. c
The Power Project would remain in operation for a period of
thirty years from the date of commissioning of the power ho.use
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 comD
pany for a further period of twenty years. Th us, virtually, the power
project has been assigned to an individual operator and put in
the hands of private-management 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
E
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
F
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 of G
'
food-grains, another 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 irrigaH
..
.
750
SUPREME COURT'.REPORTS
·. [2008] 10S.C.R.
i" ..
A
tion. 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
y
B necessary directions to the respondents.
10. On May 9, 2005, notice was issued by this.Court. Affidavits ~nd further affidavits were filed by the parties. The Registry was then directed to pl~ce the matter for final hearing on a
no_n-miscellaneous day. That is how the matter has b~en placed
c before us.
11. An affidavit in reply is filed by the State of Karnataka. It
is, inter alia, contended in- the said affidavit that a writ petition
filed by the petitioners under Article 32 of the Constitution is not
maintainable in view of Article 262(2) ofthe Constitution ~ead
t
D with Section 11 of Act XXXlll of 1956 which bars jurisdiction of
all Courts, including this Court. It is also stated that water disputes regarding RDS is pending for consideration before
Krishna Water Disputes .Tribunal and on that ground also, the
E
petition· is not tenable.· One more prelimina,.Y objection is r_aised
that petitioners have no locus standi to agitate water disputes
or a matter connected therewith or related to such dispute. It is
urged that even if the dispute involves enforcement of adjudicated decision under the Act (since it has the force of a decree
of this Court), the remedy is available to the aggrieved State to
+
F
get it executed/implemented. Again, it is only a State which can
file a suit in this Court under Article 131 of the Constitution to
get any dispute adjudicated in certain cases. Obviously, therefore, a petition filed by the petitioners is not maintainable and
cannot be entertained.
G
12. On merits, it was contended that the grievance raised
. '
by the petitioners that the Mini Hydel Power Project would con-
--,.: ..
......
sume water is totally unfQunded and ill·-conceived. The scheme
contemplates production of eleetficity on the run-off-the-river
(
teyhnology which involves 'no consumptive utilization of water'
~
H
l
at all.
ATMA UNGA REDDY & ORS. v. UNION OF
!NOIA [C.K. THAKKER, J.]
13. The scheme works thus;
751
"a.
A separate canal would be cut at a distance of about
120 metres above the Rajolibanda Diversion.
A
b.
It is the surplus water which would be utilized under 8
the Mini Hydel Scheme.
c.
The drawal level of the canal would be one foot higher
than the drawal level of Rajolibanda Diversion Canal,
which will ensure that the water meant to be utilized c
under the Rajolibanda Diversion Canal is not
affected. The gates of the proposed canal will be
electronically operated through s.ensors. The gates
will open automatically only when the depth of water
over the anicut is more than 15 cm. When the water D.
level comes back to 15 cm. above the anicut, the
gates of the canal get automatically closed. By this
process, the designed discharge of 850 cusecs (24
cumecs) in the Rajolibanda Diversion Scheme
Irrigation Canal is always ensured when the water
level is up to the crest level of the Rajolibanda
E
Diversion Scheme anicut."
14. It is also stated that the decision of the Krishna Water
Disputes Tribunal permits utilization of water for 'production of
power'. Diversion of water for the purpose of 'Power Project',
F
hence, cannot be termed illegal, unlawful or against the award
of the Tribunal.
15. An affidavit is also filed by respondent No. 4 - Company supporting the stand taken by the State of Karnataka in its
affidavit. The Managing Director of the Company asserted that G
'
~
the project had been designed as a "run-off-river-scheme" which
does not involve consumption of water at all and the power would
be generated only when there is a spill over of water over the
anicut after meeting the irrigation demands. The petition has
been filed with a view to stall the project. The litigation is not a
H
~
752
SUPREME COURT REPORTS
[2008] 10 S.C.R.
-i •
A
Public Interest Litigation (PIL) and is instituted only to make
political gains by the opposition parties and to malign the present
Chief Minister. It was further stated that wheri the, Project was
cleared, another political Party was in power and not the present
Chief Minister. Moreover, the entire project is located in the State
B of Karnataka. It was stated that the cost of project is about Rs.
y
20.60 crores. Necessary approval has been granted by the State
/
concerned, i.e. State of Karnataka and there is no illegality in
the grant of project. The work had already commenced on November 25, 2004 and major portion thereof is over. About 9.40
....
c _crore rupees hao been spe_nt. It was also stated that being a
Mini Hyder Project, it was not required to be referred to other
States., Central Electrical Authority (CEA) or Central Water Commi~sidn (CWC). They have been joined as party-respondents
in the writ petition only with a view to cause delay to the project.
,,.
I
D The writ petition is thus an abuse of process of court and the
)
Court is being used as a political platform to achieve political
mileage by the opposition parties.
16. An affidavit-in'"reply is filed by the State of Andhra
Pradesh indirectly supporting the case of the petitioners. It was
E
alleged that the State of Karnataka has been utilizing more than
.,,;_
its allocated share of water taking advantage of its location at
the top and having control of flow of water as a riparian State. It
is further stated that Mini Hydel Sch,eme would adversely affect
the State of Andhra Pradesh and it would be detrimental to the
F
interests of the farmers of the State. It was, therefore, stated
-\-"
that the State of Karnataka could not have entered into an agreement with respondent No. 4 without the consent of the State of
Andhra Pradesh.
17. In a counter affidavit filed by the Central Water ComG mission (CWC) respondent No. 1, it was stated that the Ministry of Water Resources and Central Water Commission 'has no
..,.:
..,,;'-·
role in the issue' involved in the petition. It went on to state that
the Mini Hyde! Project is likely to have an impact on the flow of
\
RDS Scheme. It was also stated that the project was not reH ferred to by the State of Karnataka to the Central Electrical Au-
ATMA UNGA REDDY & ORS. v. UNION OF
INDIA [C.K. THAKKER, J.]
thority (CEA) for clearance.
753
18. In paragraph 10 of the Affidavit, the Commission
stated;
A
"That it is also relevant to point out that second Krishna
Water Disputes Tribunal has already been constituted a.nd
B
in the construction of the proposed project any issue
involved is inter-State between the States of Andhra
Pradesh and Karnataka then the matter should be referred
to the Tribunal for examination."
19. Rejoinder-affidavits to all the counter-affidavits have
been filed by the petitioners reiterating what was averred and
contended in the writ petition. Additional Affidavits have also
been filed by the parties.
c
20. We have heard the lea.med counsel for parties. The 0
learned counsel for the contesting respondents raised certain
preliminary objections to maintainability of the writ petition. It
was submitted that a petition in this Court under Article 32 of
the Constitution is not maintainable in view of the provisipns of
the Constitution as also the provisions of the Act.
21. Let us consider legal position in the light of preliminary
objections against the maintainability of the writ-petition.
22. Article 262 deals with "Disputes relating to Waters"
and is of great importance. It may, therefore, be quoted in extenso;
E
F
I
262. Adjudication of disputes relating to waters of interstate 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 G
of, or in, any inter-State river or river-valley.
1
~+
(2) Notwithstanding anything in this Constitution1
111111
Parliament may by law provide that neither the Supreme
Court nor any other court shall exercise jurisdiction in
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SUPREME COURT REPORTS
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respect of any such dispute or complaint as is referred
to in clause (1)."
(emphasis supplied)
23. Article 131 of the Constitution is another material proB
vision. It confers original jurisdiction on this Court in certain
~
cases and reads thus;
"131. Original jurisdiction of the Supreme Court.-Subject
to the provisions of this Constitution, the Supreme Court
c
shall, to the exclusion of any other court, have original
jurisdiction in any dispute-
(a)
between the Government of India and one or more
States; or
(b)
between the Government of India and any State or
D
States on one side and one or more other States on
the other; or
(c) · between two or more States,
If and insofar as the dispute involves any question (whether
E
of law or fact) on which the existence or extent of a legal
right depends:
.....
Provided that the said jurisdiction shall not extend to a
dispute arising out of any treaty, agreement, covenant,
~
F
engagement, sanad or other similar instrument which,
having been entered into or executed before the
--t
commencement of this Constitution, continues in operation
after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.
G
24. In exercise of power under Article 262 of the Constitution, Parliament enacted a law known as the Inter-State River
Water Disputes Act, 1956 (ACT XXXI 11 of 1956) with a view "to
(
J
provide for the adjudication of disputes relating to Waters of
inter-State rivers and river valleys".
H
25. Section 3 deals with complaints by the State Govern-
ATMA UNGA REDDY & ORS. v. UNION OF
755
INDIA [C.K. THAKKER, J.]
+
•
ments as to water disputes and enacts that if it appears to the A
Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason
of the fact that the interests of the State, or of any of the inhabitants thereof, in the waters of an inter-State river or river valley
have been, or are likely to be, affected prejudicially, it may reB
yquest the Central Government to refer the water dispute to a
__.
Tribunal for adjudication. Whereas Section 4 provides for constitution of Tribunal, Section 5 relates to adjudication of water
disputes.
26. Section 6 requires the Central Government to publish c
decisions of the Tribunal and the effect of such publication. It
reads thus;
6. Publication of decision of Tribunal
(1)
The Central Government shall publish the decision D
of the Tribunal in the Official Gazette and the decision
shall be given effect to by them.
(2)
the decision of the Tribunal, after its publication in
the Official Gazette by the Central Government under E
sub-section ( 1), shall have the same force as an order
or decree of the Supreme Court.
27. Section 11 is extremely important provision and may
be reproduced;
11. Bar of jurisdiction of Supreme Court and other Courts. -
F
f
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."
28. In the light of the scheme as envisaged by the Makers G
of the Constitution as also by Parliament under the Act XXXlll of
"
1956 in connection with water disputes between inter-States, it
\
t-
\ -
is clear to us that such disputes cannot be made subject matter
of petition either in a High Court under Article 226 or in this H
756
SUPREME COURT REPORTS
[2008] 10 S.C.R.
4A
Court under Article 32 of the Constitution. Probably, Article 262
•
is the only provision which enables Parliament to oust and exelude jurisdiction of all Courts including the Supreme Court (this
Court). It is also pertinent to note that Clause (2) of Article 262
contains non-obstante clause ("Notwithstanding anyttiing in this
B
Constitution"). It is no doubt true that Article 262 of the Constitution is not self-executory inasmuch as it does not, by itself, take
....,,
away the jurisdiction of this Court in respect of disputes relating
~
to waters of inter-State rivers or river-valleys. It is an enabling
provision and empowers Parliament to enact a law providing
c for adjudication of such disputes or complaints, excluding the
jurisdiction of all Courts including this Court (Supreme Court).
Article 131 of the Constitution which enables the Central Government or a State Government to institute a suit in this Court
on its Original Side in certain cases also cannot be invoked in
D
inter-State water disputes in view of Section 11 of the Act [vide
Tamil Nadu Cauvery Sangam v. Union of India, (1990) 3 SCC
440]. In other words, the provisions of Article 131 of the Constitution have to be construed harmoniously subject to the provisions of Article 262 of the Constitution. A petition under Article
E
32 of the Constitution,· hence, cannot be entertained by this
Court.
29. The learned counsel forthe petitioners, however, strenu-
""
ously urged that on more than one ground, the present petition
is not barred. Firstly, the petition is not filed by a State and hence
F
bar contemplated by Article 262(2) read with Article 131 of the
Constitution and Section 11 of the Act has no application. Sec-
-'(-
ondly, it has been held by this Court in several cases that right
to get water is ·a part of right to life under Article 21 of the Constitution. If it is so, Article 32 can certainly be invoked by the
G petitioners, particularly when the petition is in the nature of PIL.
Thirdly, the petitioners cannot approach the Tribunal constituted
under the Act for the enforcement of their rights to get water. In
fact, an Interim Application NO. 34 of 2006was filed by the pe-
,,
-t
'~
titioners before the Tribunal but was dismissed observing that
,-----
...
H
the petitioners have no locus standi. If this Court holds that a
ATMA UNGA REDDY & ORS. v. UNION OF
757
INDIA [C.K. THAKKER, J.]
petition is not maintainable in this Court, they have no remedy A
for the enforcement of their right recognized by the Constitution
and guaranteed by Article 32 enshrined in Part Ill of the Constitution. It would violate basic philosophy of Rule of Law reflected
in the well-known maxim ubi jus ibi remedium (wherever there
is right, there is remedy). It was, therefore, submitted that the
B
y
present petition is maintainable and should be decided on
merits.
30. 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 ex- c
tracted the relevant provisions of the Constitution as also of Act
XXXlll of 1956. The Founding Fathers of the Constitution were
aware and conscious of sensitive nature of inter-State disputes
relating to waters. They, therefore, provided machinery for adjudication of such disputes relating to waters of inter-State rivers D
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 any inter-State river or river valley. They, .however, did
not stop there. They went ahead and empowered Parliament to E
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 ParliaF
·-t
ment.
31. The provisions of Act XXXlll of 1956 are also relevant
and pertinent. Clause (c) of Section 2 defines 'water dispute' to
mean "any dispute or difference between two or more State
Governments with respect to -
G
(i)
the use, distribution or control of the waters of, or in,
"-
any inter-State river or river valley; or
"f"
(ii)
the interpretation of the terms of any agreement
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SUPREME COURT REPORTS
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relating to the use, distribution or control of such
waters or the implementation of such agreement; or
. (iii) the levy of any water rate in contravention of the
prohibition contained in section ?".
·
s
32. Section 3 of the Act provides for "C9mplaints by State
D
E
F
Governments as to water disputes". ltruns as under;
Section 3 - Complaints by State Governments as to water
disputes-If it appears to the Government of any State
thata water disputes.with the Government of another State
has arisen or is likely to arise by reason of the fact that the
interests of the State, or of any of the inhabitants thereof,
in the waters of an inter~State river or river valley have
been, or are likely to be, affected prejudicially by-
(a)
any executive action or legi$1ation taken or passed,
or proposed to be taken or passed, by the other
State; or
(b)
the failure of the other State or any authority therein
to exercise any of their powers with respect to the
use, distribution or control of such waters; or
(c)
the failure of the other State to implement the terms
of any agreement relating to the use, distribution or
control of such waters the State Government may, in
such form and manner as may be prescribed, request
the Central Government to refer the water dispute to
a Tribunal for adjudication.
33. Bare reading of the above provisions leaves no room
for doubt that they are very wide. Section 3 deals with situaG tions 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
H
ATMA UNGA REDDY & ORS. v. UNION OF
759
INDIA [C.K. THAKKER, J.]
?-
us, therefore, it is abundantly clear that such a dispute is covA
ered by Article 262 of the Constitution and should be dealt with
in accordance with the provisions of Act XXXlll of 1956 and it
cannot be challenged in any Court including this Court.
34. In Tamil Nadu Cauvery Sangam, this Court observed;
B
y
"It is thus clear that Section 11 of the Act bars the jurisdiction
of all courts including this Court to.entertain adjudication
of disputes which are referable to a tribunal under Section
3 of the Act. Therefore, this Court has no jurisdiction to
enter upon the factual aspects raised in the writ petition". c
35. In Cauvery Water Disputes Tribunal, Re, 1993 Supp
(1) SCC 96 (II), a Reference was made to this Court by the
Hon'ble the President of India under Article 143 of the Constitution and opinion of the Court was sought on certain questions.
This Court considered the provisions of Articles 262 and 131 of D
the Constitution as also Section 11 of the Act.
36. The Court inter alia opined;
"The effect of the provisions of Section 11 of the present
Act,. viz., the Inter-State Water Disputes Act read with
E
Article 262 of the Constitution is that the entire judicial
power of the State and, therefore, of the courts including
that of the Supreme Court to adjudicate upon original
dispute or complaint with respect to the use, distribution
or control of the water of, or in any inter-State river or river F
_,
valleys has been vested in the Tribunal appointed under
Section 4 of the said Act. It is, therefore, not possible to
accept the submission that the question of grant of interim
relief falls outside the purview of the said provisions and
can be agitated under Article 131 of the Constitution. Hence G
any executive order or a legislative enactment of a State
which interferes with the adjudicatory process and
. '+
adjudication_ by such Tribunal is an interference with the
-..
If
judicial power of the State. In view of the fact that the
Ordinance in question seeks directly to nullify the order of H
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the Tribunal passed on 25th June, 1991, it impinges upon
the judicial power of the State and is, th~refore, ultra vi res
·the Constitution".
·
-·
(emphasis supplied)
B
37. In view of the above legal position, the submission of
y
the petitioners that the bar envisaged by Section 11 of the Act
would not cover cases- of private individuals or petitldners appfoaching this Court as pro bona publico, and its application is
limited to States has no force and we express our inability to
c agree with the learned counsel.
38. Ultimately, what is contemplated by the Act is to look
into, to pr0tect arid 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
D for adjudication by the Central Government on a dispute raised
or complaint made by any State that interest of the State or an·y
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.
E
. 39. The learned counsel for the petitioner, however, referred
to .a .. decision of this Court in Narmada Bachao Andholan v.
Union of India & Ors., (2000) 10 SCC 664. In para 248 of the
reported decision, the majority, after referring to Resolution of
F
United Nations Organization (UNO), observed;
"248.