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This article talks about the nature of Inter State River Water Disputes in India and the place of the Constitution in the adjudication of these disputesTRANSCRIPT
Inter State Water Disputes – Resolution of Disputes
under our Constitution : the place of the Supreme
Court.
1. We read a lot in the press these days about water disputes
between sister States of our Union. What exactly are inter
state water disputes ?
2. When one State claims a share in the waters of a river or a
stream to the exclusion, partial or otherwise, of another, an
inter State river water dispute arises and an unresolved
dispute leads to a cause of action before an appropriate court
or tribunal.
3. Our Constitution furnishes, in Article 131, the forum for the
redressal of disputes between States or between a State and
the Union. That forum is the Supreme Court.
4. To start with, Article 131 (excluding the proviso thereat) is an
original provision under the Constitution. It says:
Article 131. Original Jurisdiction of the Supreme Court:
Subject to the provisions of this Constitution, the Supreme
Court 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
1
(b)between the Government of India and any State or
States on one side and one or more States on the
other; or
(c)between two or more States;
if and in so far as the dispute involves any question
(whether 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,
engagement, sanad or other similar instrument which,
having been entered into or executed before the
commencement of this Constitution, continues in
operation after such commencement, or which provides
that the said jurisdiction shall not extend to such a
dispute.
5. An early interpretation of Article 131 by the Hon’ble Supreme
Court lays down the essence of Article 131 and this
interpretation continues to govern suits filed under Article 131.
“..Mere wrangles between governments have no place in
the scheme of that (131) article. They have to be
resolved elsewhere and by means less solemn and
sacrosanct than a court proceeding. The purpose of
Article 131 is to afford a forum for the resolution of
disputes which depend for their decision on the
2
existence or extent of a legal right. It is only when a
legal, not a mere political, issue arises touching upon the
existence or extent of a legal right that Article 131 is
attracted.
State of Rajasthan and Ors Vs. Union of India and Ors (1977)
(Original Suits 1 to 6 of 1977)
A.I.R 1977 SC 1361 : (1977) (3) SCC 592. Decided on 06-05-
1977.
6. Article 131 of the Constitution is one of the most unique
provisions of the Constitution in that the interpretation of this
Article by the Supreme Court is not limited by considerations
that ordinarily limit a Court below that tries an original suit.
Article 131 lays down the forum for adjudicating a dispute
between a State and the Union or between two or more States
or between the Union joined by one or more States and
another State or States. That forum is the Supreme Court.
7. When States discover a mutual conflict of interest in the
waters of a river or a stream, are their competing claims
governed by Article 131 ?
8. The answer must be ‘NO’. Article 131 is not and was not
designed to override other provisions of the Constitution in the
event of a conflict. Article 262 seeks to exclude Article 131
when a dispute between States concerns waters. It says:
Disputes relating to Waters
3
Article 262. Adjudication of disputes relating to waters of
inter state river 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 of, or in, any inter
state river or river valley.
(2) Notwithstanding anything in this Constitution,
Parliament may by law provide that neither the Supreme
Court nor any other Court shall exercise jurisdiction in
respect of any such dispute or complaint as is referred to
in clause (1).
9. Is it justified to say that the Supreme Court may not entertain
any claim under Article 131 when such a claim is covered by
Article 262 ?
10. YES.
11. Article 262 is an original provision under the Constitution. In
exercise of power facilitated to the Parliament under Article
262 (1), the Parliament of India passed the Inter State Water
Disputes Act [INTER STATE RIVER WATER DISPUTES ACT, 1956
– Act No.33 of 1956] in the year 1956. This Statute defines a
‘water dispute’ and provides for a solution to States that claim
a share in disputed waters and above all, mandates that ‘water
disputes’ referable under this Act shall not be amenable to the
4
jurisdiction of any court including the Supreme Court of India.
Some of the provisions of this Act may be noted:
12. Section 2(c) defines a ‘Water dispute’. It says:
(c) “Water dispute” means any dispute or difference
between two or more State Governments with respect to
i. The use, distribution or control of the waters of, or
in, any inter-state river or river valley; or
ii. The interpretation of the terms of any agreement
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 7.
13. Section 3 lays down the manner of cognizance of a ‘Water
dispute’ by the Central Government. It says:
3.If it appears to the 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 by-
a) any executive action or legislation taken or passed, or
proposed to be taken or passed, by the other State; or
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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.
14. Section 6 of the Act provides:
6 (1). The Central Government shall publish the decision
of the Tribunal in the Official Gazette and the decision
shall be final and binding on the parties to the dispute
and 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
sub-section (1), shall have the same force as an order or
decree of the Supreme Court.
15. Section 11 excludes the jurisdiction of the Supreme Court and
of other courts in respect of a ‘Water dispute’. It says:
11. Notwithstanding anything contained in any other law,
neither the Supreme Court nor any other court shall have
6
or exercise jurisdiction in respect of any water dispute
which may be referred to a Tribunal under this Act.
16. As such, the Inter State Water Disputes Act of 1956 is a self
contained code and authority is taken in this statute to exclude
the jurisdiction of the Supreme Court under Section 11 of the
Act. This means a Tribunal constituted under this Act for the
purpose of adjudicating a water dispute between contesting
states is the exclusive venue for States to agitate a ‘water
dispute’ and within the scheme of this Act, the decision of such
a Tribunal is final and binds the party states.
17. Does an appeal lie against the order of a Water Disputes
Tribunal under Article 136 of the Constitution? Within the plain
meaning of all the relevant provisions, the answer is a simple
‘no’. Article 136 of the Constitution is an original provision
under the Constitution and provides as under:
Article 136. Special Leave to Appeal by the Supreme Court:
(1). Notwithstanding anything in this chapter, the
Supreme Court may, in its discretion, grant special leave
to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or
made by any Court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment,
determination, sentence or order passed or made by
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any Court or Tribunal constituted by or under any law
relating to the Armed forces.
18. Article 136 of the Constitution does not and cannot override
Article 262 of the Constitution. Within the scheme laid out in
Chapter IV that covers Articles 124 to 147, Article 136(1)
overrides every other provision except 136(2). However, the
Supreme Court of India being the highest judicial organ of the
State, it may expand the scope of Article 136 to an extent that
does not conflict with the ouster of its jurisdiction under Article
262 read with the provisions of the Inter State Water Disputes
Act,1956.
19. A reasonable and uncontroverted basis exists to assume that
neither Article 131 nor Article 136 affords any relief to a State
not happy with the order of a Water Disputes Tribunal.
20. We may now look for whether this conclusion is supported by
prior case law and by the outcome of disputes raised and
controversies brought before the Supreme Court.
21. However, before we begin, we may note that Suits or petitions
previously filed before the Supreme Court under Article 131 or
136 that warranted the consideration of whether the same was
barred by Article 262 have never survived any challenge under
Article 262 in all cases where the Supreme Court held that
claims raised thereat were barred by Article 262.
8
22. States that did not wish to concede that Article 262 bars one or
more of their claims had advanced and fashioned a variety of
arguments and yet, none rose to a level necessary to compel
the Supreme Court to disregard the removal of its jurisdiction
under Article 262 subsequent to the coming into force of the
Inter State Water Disputes Act, 1956. It is not difficult to see
why.
23. The Supreme Court has consistently held that a complaint over
some aspects of the Tribunal’s order or of another State’s
conduct alone may be advanced before it, presumably under
Article 131 or 136, only as long as the same can be shown to
not vary the adjudication of the Tribunal made in response to a
dispute referred to it under Section 3 of the Inter State Water
Disputes Act.
24. Therefore, any such complaint that complies with this
requirement may not be adequate at all to afford relief to a
State to an extent that it seeks. In fact, affected States in the
past have filed suits under Article 131 or 136 before the
Supreme Court by resting their claim against the Respondent
State on the premise that the Respondent State has breached
a duty to act or to refrain from acting in a certain manner and
that such ‘action or refusal’ is not covered under Section 2 (c)
of the Inter State Water Disputes Act, 1956.
Some of the decisions of the Supreme Court may be noted:
9
25. A Writ Petition came to be filed under Article 32 of the
Constitution in 1983 by a private group, Tamil Nadu Cauvery
Neerppasana Vilaiporugal Vivasayigal Nala Urimai Padhuguppu
Sangam against the Union of India and four riparian States
sharing the Cauvery River Basin. The Petitioner pleaded for an
effective relief to the plight of the farmers dependant upon the
Cauvery Water flows into Tamil Nadu on the premise that the
Cauvery Water flows into Tamil Nadu were fast dwindling due
to the impounding of ever larger quantity of water by the State
of Karnataka. The Court declined to take judicial notice of facts
adverted to in the petition except the mutual conduct of the
contesting states and the Union after which the Court said it
became
“necessary that the legal machinery provided by the
Statute is set in motion before the dispute escalates”.
The Court directed the Central Government to immediately
constitute a Tribunal as provided for under the Inter State
Water Disputes Act, 1956. As to Article 262 and Section 11 of
the Inter State Water Disputes Act, the Court held:
“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”
10
Tamil Nadu Cauvery Neerppasana Vilaiporugal Vivasayigal
Nala Urimai Pudhugappu Sangam Vs. Union of India and ors.
A.I.R 1990 SC 1316 : (1990) (3) SCC 440. Decided on 14-05-
1990.
26. A certain determination of the Cauvery Water Disputes
Tribunal was successfully challenged under Article 136 by the
State of Tamil Nadu (in State of Tamil Nadu Vs. State of
Karnataka and Ors) and by the Union Territory of Pondicherry
(in Union Territory of Pondicherry Vs. State of Karnataka and
Ors). The State of Tamil Nadu and the Union Territory of
Pondicherry had sought interim relief before the Cauvery
Water Disputes Tribunal, but the Tribunal declined to consider
them (CMPs No. 4 and 9 of 1990) however, on the premise
that the matter of interim relief was not referred to the
Tribunal by the Central Government and that it was not open
to the Tribunal to adjudicate on a dispute unless the same was
referred to it by the Central Government. Aggrieved by this
order, the affected States made a successful showing before
the Supreme Court that
“the Supreme Court has the jurisdiction to decide the
scope of the powers of the Tribunal under the Act and in
case the Tribunal has wrongly refused to exercise
jurisdiction under the Act, then this Court is competent
to set it right and direct the Tribunal to entertain such
application and to decide the same on merits”.
11
Partly accepting the contention advanced by the Petitioner
States, the Supreme Court concluded that it
“is the ultimate interpreter of the Inter State Water
Disputes Act, 1956 and has an authority to decide the
limits, powers and the jurisdiction of the Tribunal
constituted under the Act”.
However, the Court concluded that it would not decide in the
instant case whether the Tribunal possessed the power to
grant interim relief because such an exercise was not
warranted in view of the Court’s finding that in the dispute
already referred by the Central Government to the Tribunal,
there was sufficient material to indicate that the
“reliefs prayed for by them (petitioner States) in their
CMPs 4, 5 and 9 of 1990 were covered in the reference
made by the Central Government”.
State of Tamil Nadu Vs. State of Karnataka and Ors
WITH
Union Territory of Pondicherry Vs. State of Karnataka and
Ors.
(1991) Supp (1) SCC 240 : 1991 (2) SCR 501. Decided on 26-
04-1991.
27. In response to a Presidential Reference to the Supreme Court
under Article 143 of the Constitution (Special Reference No.1
of 1991) In the matter of the Cauvery Water Disputes
12
Tribunal, the Supreme Court discussed at length its advisory
role and then went on to distinguish between its advisory
jurisdiction and its appellate jurisdiction under other provisions
of the Constitution. In response to questions of law posed by
the President, the Supreme Court made several observations
with regard to Article 262. It may be noted that the Presidential
Reference stated that the passing of an Ordinance by the State
of Karnataka that had the outcome of overriding the interim
order of the Cauvery Water Disputes Tribunal was a cause for
concern. It may also be noted that the State of Karnataka took
the contention that it had good faith to believe that the order
of the Tribunal granting interim relief was not merely without
jurisdiction but was also likely to adversely affect Karnataka’s
constitutionally protected interests in irrigation.
Varied interpretations of Article 131 and Article 262 were
advanced by all the four contesting States – the States of
Karnataka, Tamil Nadu, Kerala and the Union Territory of
Pondicherry. The Court said:
“It is clear from the Article (131) that this Court has
original jurisdiction, among other things, in any dispute
between two or more States where the dispute involves
any question whether of law or fact on which the
existence and extent of a legal right depends except
those matters which are specifically excluded from the
said jurisdiction by the proviso. However, the Parliament
has also been given power by Article 262 of the
13
Constitution to provide by law that neither the Supreme
Court nor any other Court shall exercise jurisdiction in
respect of any dispute or complaint with respect to the
use, distribution or control of the water of, or in, any
interstate river or river valley. Section 11 of the Act,
namely, the Inter State Water Disputes Act, 1956 has in
terms provided for such exclusion of the jurisdiction of
the Courts”.
In the Matter of: Cauvery Water Disputes Tribunal.
A.I.R 1992 SC 522 : (1991) Supp. (2) SCR 497. Decided on 22-
11-1991.
28. In an original suit filed by the State of Karnataka against the
State of Andhra Pradesh and Others (Original Suit No.1 of
1997) under Article 131 of the Constitution, the State of
Karnataka sought, among others, that the Court direct the
Union of India to recognise that its publication of the final order
of the Krishna Water Disputes Tribunal was incomplete without
the inclusion of ‘Scheme B’ that was referred to in the final
order as well as in the modified final order of the Tribunal. A
five judge bench of the Supreme Court declared in answer to
objections raised by the State of Andhra Pradesh in relation to
the said suit being barred under Article 262:
“.. Thus Article 131 being subject to the other provisions
of the Constitution including Article 262, if Parliament
has made any law for adjudication of any water dispute
14
or a dispute relating to distribution or control of water in
any inter state river or river valley, then such a dispute
cannot be raised before the Supreme Court under Article
131 even if the dispute be one between the Centre and
the State or between two states. In exercise of
Constitutional power under Article 262 (1), the
Parliament, in fact has enacted the law called the Inter
State Water Disputes Act, 1956 and Section 11 of the
Act provides that neither the Supreme Court nor any
other Court shall have jurisdiction in respect of any
water dispute which could be referred to a Tribunal
under the Act. This being the position, what is necessary
to be found out is whether the assertions made in the
plaint filed by the State of Karnataka and the relief
sought for, by any stretch of imagination can be held to
be a water dispute, which could be referred to the
tribunal, so as to oust the jurisdiction of the Supreme
Court under Article 131”
State of Karnataka Vs. State of Andhra Pradesh and Ors.
A.I.R 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-Apr-
2000.
29. In a matter connected with the above suit, another Original
Suit (Original Suit No. 2 of 1997) was filed by the State of
Andhra Pradesh against the State of Karnataka and others. The
plaintiff State sought several declarations from the Court with
a view to restrain, among others, the upper riparian State of
15
Karnataka from proceeding with projects which the plaintiff
State claimed were a continuing violation of the adjudication
effected by the Krishna Water Disputes Tribunal. The State of
Maharastra, Defendant No.3 in this Suit, advanced an objection
that the prayer made by the plaintiff State should not be
entertained under Article 131 in view of the bar placed upon
the jurisdiction of this Court under Article 262 of the
Constitution. The Court answered thus:
“It is not in dispute between the parties that the Inter
State Water Disputes Act, 1956 (hereinafter referred to
as the Disputes Act) is a legislation passed under Article
262 of the Constitution. It is equally not in dispute that
Section 11 thereof excludes jurisdiction of this Court in
respect of water disputes referred to the Tribunal. It
will, therefore, have to be seen whether the State of
Andhra Pradesh, as plaintiff, having invoked the
jurisdiction of this Court under Article 131 has, in
substance, raised ‘Water Dispute’ which will exclude the
jurisdiction of this Court as per Section 11 of the
Disputes Act read with Article 262 Sub-Article (2). In
other words, if in substance, the plaintiff wants
adjudication of any water dispute between it and the
other contesting States, namely, the State of Karnataka
or the State of Maharastra which are the upper riparian
States located in the Krishna basin through which the
river Krishna, which is admittedly an inter-state river,
flows”
16
“..Keeping in view the aforesaid salient features of the
plaint of the State of Andhra Pradesh, the nature of
controversies raised therein, reliefs claimed and the
issues which fall for consideration of the Court, it is
difficult to agree with the contentions of contesting
defendants…It is obvious that the disputes raised by the
plaintiff State of Andhra Pradesh pertain to the alleged
non-implementation of the binding award of the Krishna
Water Disputes Tribunal by defendant No.1 State. It has
nothing to do with raising of a fresh water dispute”.
State of Andhra Pradesh Vs. State of Karnataka and Ors.
A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-
2000.
30. Also, during the proceedings in the above Suit, (Original Suit
No.2 of 1997) filed under Article 131, the State of Maharastra,
defendant No.3, sought leave of the Court to raise an objection
to the raising of the height of the Almatti dam (controlled and
operated by the State of Karnataka) and this objection was
taken on the premise that some territories in Maharastra could
endure drowning or submergence thereof if the height of the
dam was not kept in check. The Court was further informed
that this objection was never raised by Maharastra before the
Krishna Water Disputes Tribunal because Maharastra did not
see any occasion to do so – the Tribunal had not considered
the question of clearance of any height of Almatti dam. The
Court observed:
17
“The aforesaid grievance of the State of Maharastra
which is defendant No.3 against defendant No.1 is really
a dispute between the two defendants and does not
project any dispute qua the plaintiff state, but even
proceeding on the basis that suit under Article 131 is a
comprehensive one and seeks to resolve the simmering
dispute between all the contesting States which are the
riparian states situated in the inter state river Krishna
basin and not applying the strict yardstick of a suit
before an ordinary Civil Court, we have to appreciate the
real grievance voiced by the State of Maharastra against
the height of Almatti dam”.
“… it may be mentioned that the dispute sought to be
raised by defendant No.3 State of Maharastra is against
defendant No.1 State, namely, State of Karnataka
regarding any increase in the height of Almatti Dam
beyond 519 metres or for that matter beyond 512 metres
which, according to the …State of Maharastra can be the
permissible height and which would have no adverse
affect of submergence in the Maharastra territory.
However, this dispute cannot be resolved in the present
proceedings for the simple reason that it would assume
the character of a ‘water dispute’ as we will presently
see”.
“..Thus on a conjoint reading of Section 2 (c ) (i) and
Section 3(a) of the Disputes Act such a grievance voiced
18
by defendant No.3 State against defendant No.1 would
consequently fall within the fore corners of the Disputes
Act enacted by the legislature under Article 262. Once
that conclusion is reached, the result becomes obvious.
This type of grievance and dispute cannot be adjudicated
upon by us under Article 131 and it is for the Maharastra
State if so advised to raise such a dispute which earlier
it did not raise, by filing an appropriate complaint under
Section 3 of the Disputes Act before the Central
Government and once that happens Section 4 of the Act
would be automatically attracted”.
“Thus the grievance about submergence raised by
Defendant No.3 State squarely falls within the scope of
‘water dispute’ between defendant No.3 State and
defendant No.1 State. For its resolution, adjudication by
the Tribunal is the only way out. ..In other words, it
remains an open dispute calling for its adjudication. It
cannot be considered by us under Article 131”.
State of Andhra Pradesh Vs. State of Karnataka and Ors.
A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-
2000.
31. Also, in the judgment and order made in the above Suit
(Original Suit No.2 of 1997), Justice Banerjee observed:
“…Significantly, Sub Article 2 of Article 262 by its
unequivocal language expressly provides for a total
19
ouster of jurisdiction of courts including the Supreme
Court by parliamentary legislation as regards resolution
of such disputes. The subsequent legislation as
introduced into the Statute Book, namely the Inter State
Water Disputes Act, 1956 is such a legislation under
Article 262 of the Constitution and Section 11 thereof
excludes jurisdiction of the Courts including that of the
Supreme Court in respect of a water dispute”
“…Article 262 is specific as regards adjudication of
disputes pertaining to water whereas Article 131
provides for a general power and conferment of
jurisdiction of the Supreme Court…”
“There is, therefore, a total ouster of jurisdiction of all
courts…”
“..The Test of maintainability of a legal action initiated
by a State in a Court would thus be whether the issues
raised therein are capable of being referred to a
Tribunal for adjudication. In the factual matrix of the
matter under consideration, question of adjudication of
any water dispute within the meaning of Section 2 ( c )
would not arise. The suit pertains to implementation but
does not require any further adjudication of water rights
between the States..”
State of Andhra Pradesh Vs. State of Karnataka and Ors.
20
A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-
2000.
32. In an Original Suit filed under Article 131 by the State of
Haryana (Original Suit No.6 of 1996) against the State of
Punjab and the Union of India seeking a mandamus to a certain
effect from the Supreme Court was resolved thus when a
challenge was mounted by the State of Punjab upon the
jurisdiction of the Supreme Court to entertain a suit under
Article 131 in view of Article 262 of the Constitution read with
Section 11 of the Inter State Water Disputes Act,1956:
“..The averments in the plaint and the relief sought for
by the State of Haryana is not in the water from Ravi
Beas project. The entire dispute centres around the
question of the obligation on the part of the State of
Punjab to dig the portion of SYL Canal within its
territory which canal became necessary for carrying
water from the project to the extent the said water has
already been allocated in favour of the State of Haryana
under the provision of the Punjab Reorganisation Act
and the Subsequent agreement between the parties…
Thus the construction of SYL Canal is essentially one for
the purpose of utilising the water that has already been
allotted to the share of Haryana and consequently,
cannot be construed to be in any way inter-linked with
the distribution or control of water of, or in any inter-
state river or river valley”.
21
“There cannot be any dispute with the proposition that
in the event the present dispute between the two States
would come within the definition of ‘water dispute’ in
Section 2 ( c ) of the Act and as such is referable to a
Tribunal, under Sec.11 of the Act then certainly the
jurisdiction of this Court would be barred in view of
Article 262 of the Constitution read with Section 11 of
the Act”.
State of Haryana Vs. State of Punjab and Anr.
(2002) (2) SCC 507) : 2002 (1) SCR 227. Decided on 15-Jan-
2002.
33. In deference to the issues raised and the answer awarded
thereat in the Original Suit filed by the State of Haryana
(referred to in above paragraph) the State of Punjab filed an
Original Suit (Original Suit No.1 of 2003) before the Supreme
Court seeking several reliefs by placing State of Haryana as
the Respondent and the State of Haryana in response
advanced an additional prayer under its subsisting Original Suit
(Interlocutory Application No.4 in Original Suit No.6 of 1996)
whereof, among other things, the Supreme Court was asked to
revisit its stand on the role of Article 262 in foreclosing a Suit
filed under Article 131. The Court answered thus:
“The objection as to the jurisdiction of this Court on the
basis of Article 262 was specifically negatived in the
22
judgment dated 15-Jan-2002 (State of Haryana Vs. State
of Punjab and Anr.) (Supra)”
“As we have said, both issues pertaining to the Court’s
jurisdiction under Article 145(3) and 262 have been
considered and decided by this Court. The issues have
been concluded inter parties and cannot be raised again
in proceedings inter parties”.
State of Haryana Vs. State of Punjab and Anr.
WITH
State of Punjab Vs. State of Haryana and Ors.
(2004) (12) SCC 673 : 2004 (6) SCALE 75. Decided on 04-01-
2004.
34. In a Writ Petition filed before the Supreme Court, the
Petitioner, Mullaperiyar Environmental Protection Forum, a
private group, raised several objections to the raising of the
Mullaperiyar Dam beyond a certain level and for a declaration
that the Agreement of 1886 (between Maharajah of Travancore
and Secretary of State for India in Council) and the Modified
Agreement of 1970 (between the State of Kerala and the State
of Tamil Nadu) be declared as ‘null and void’. It may be noted
that the States of Kerala and Tamil Nadu have maintained
competing claims over certain operational aspects of the
Mullaperiyar Reservoir.
23
To decide the controversy on hand, the Supreme Court framed
as one of the issues,
“whether the jurisdiction of this Court is barred in view
of Article 262 read with Sec.11 of the Inter State Water
Disputes Act,1956”.
Reiterating that the jurisdiction of the court was indeed barred
under Section 11 of the Inter State Water Disputes Act, 1956
read with Article 262 of the Constitution in the matter of a
‘water dispute’, the Court specified that the controversy before
it was not a water dispute. It said,
“In the present case, however, the dispute is not the one
contemplated by Section 2 ( c ) of the Act. Dispute
between Tamil Nadu and Kerala is not a ‘water dispute’.
The right of Tamil Nadu to divert water from Periyar
reservoir to Tamil Nadu for integrated purpose of
irrigation or to use the water to generate power or for
other uses is not in dispute. The dispute is also not about
the lease granted to Tamil Nadu in the year 1886 or
about supplementary agreements of 1970. It is not in
dispute that the dam always had and still stands at the
height of 155 Ft. and its design of full water level is 152
Ft. There was also no dispute as to the water level till
the year 1979. In 1979, the water level was brought
down to 136 ft. to facilitate State of Tamil Nadu to carry
out certain strengthening measures suggested by the
Central Water Commission. The main issue now is about
24
the safety of the dam on increase of the water level to
142 Ft. For determining this issue, neither Article 262 of
the Constitution of India nor the provisions of the Inter
State Water Disputes Act, 1956 have any applicability”.
Mullaperiyar Environmental Protection Forum Vs. Union of
India and Ors.
A.I.R. 2006 SC 1428 : (2006) (3) SCC 643. (Decided on 27-
Feb-2006).
35. The above decisions fully support the conclusion that neither
Article 131 nor Article 136 affords a statutory or other relief to
any State that is not happy with the order of a Water Disputes
Tribunal.
36. Further, certain continuing actions before the Supreme Court
that pertain to water disputes between States may have to be
monitored and noted for departure from previous rulings.
Some of them are:
37. By its Judgment and order dated 04-06-2004 coming after its
direction on an Original Suit (referred to in para 23 above), the
Supreme Court ordered the State of Punjab to hand over the
SYL Canal works to a central agency that was envisaged to
complete the work on the SYL canal and arrangements in this
respect were thrust upon the States of Punjab and Haryana
and the Union Government. The Court said that such an action
became necessary after persistent refusal by the State of
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Punjab to abide by its obligation to complete the work on the
SYL canal within its territory and which work was nearly 90 %
complete. Aggrieved by this Order, the Legislature of the State
of Punjab passed the “Punjab Termination of Agreements Bill,
2004” on 12-July-2004 which received the assent of the
Governor of Punjab shortly afterwards. The “Punjab
Termination of Agreements Act, 2004” was passed for the
express purpose of enabling the State of Punjab to abrogate its
prior commitments and obligations to other States in the
matter of sharing the waters in the Ravi, Beas and Sutlej rivers.
The Central Government, hindered by this development,
preferred the directions of the Supreme Court on 15-Jul-2004.
The President of India sought the advice of the Supreme Court
on 22-July-2004 in the matter under Article 143 of the
Constitution. Acting on the Presidential Reference, the
Supreme Court directed notices to the States of Punjab,
Haryana, Himachal Pradesh, Rajasthan, Delhi and Jammu and
Kashmir on 2-Aug-2004. The Supreme Court is yet to deliver its
verdict on this Reference.
38. Writ Petition (Civil) No.537 of 1992 filed by a private person
before the Supreme Court involved the issue of supply of
drinking water to the inhabitants of Delhi (Comdr.Sureshwar D
Sinha and Ors against the Union of India and others). One of
the respondents, the State of Haryana had challenged the
jurisdiction of the Supreme Court on certain aspects of this
issue by reason of the bar placed under Article 262 of the
Constitution and by the provisions of the Inter State Water
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Disputes Act, 1956. Arguments in this case continue and the
Supreme Court has, in response to the objection raised by the
State of Haryana, directed that the constitutional challenges
raised by the State of Haryana should be separately
considered and dealt with.
39. It therefore appears that either under Article 131 or Article
136, the Supreme Court may not choose to sit on appeal over
the order of a Water Disputes Tribunal to an extent that a
State, not happy that the Tribunal’s order does not advance its
claims and views, is afforded substantial relief thereby.
40. It may therefore be said that the Constitution excludes the
jurisdiction of the Supreme Court from adjudicating upon a
water dispute between States and that the Supreme Court is
not ousted from jurisdiction to restrain a State from violating
the terms of an award issued by the competent water dispute
tribunal. The authority of the Supreme Court to restrain a State
from engaging in any conduct detrimental to the interests of
other States in disputed waters extends to, among others,
directing the Central Government to constitute a tribunal to
adjudicate upon a water dispute raised before it and to
determine if a tribunal is competent and authorised to offer a
relief sought by a party State.
Regards
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