Supreme Court of India
STATE OF ANDHRA PRADESHversusSTATE OF MAHARASHTRA & ORS.
- Citation
- 2013 INSC 129
- Decided
- 28 February 2013
- Disposal
- Disposed off
- Bench
- RAJENDRA MAL LODHA
Holding
Maharashtra may utilize up to 60 TMC of Godavari water for new projects, including from the water spread area up to the Pochampad dam site, and no injunction is warranted against the Babhali barrage.
Summary
The State of Andhra Pradesh filed a suit under Article 131 of the Constitution seeking to restrain Maharashtra from constructing the Babhali barrage within the water spread area of Andhra's Pochampad dam and from drawing water from it. The dispute centered on the interpretation of the 6 October 1975 water‑sharing agreement and the Godavari Water Dispute Tribunal awards, particularly whether Maharashtra’s entitlement of up to 60 TMC for new projects could be exercised from the reservoir waters of Pochampad. The Court held that the agreement caps Maharashtra’s use at 60 TMC but does not restrict the source to flowing water alone, allowing use of water in the geographical basin, including the reservoir spread area. It found no substantial injury warranting an injunction and therefore denied Andhra Pradesh’s reliefs. However, a three‑member supervisory committee was constituted to monitor the operation of Babhali and Balegaon barrages. The suit was dismissed, and the parties were directed to comply with the committee’s oversight.
Issues considered
- Whether the suit is barred by Article 262 of the Constitution read with the Inter‑State Water Disputes Act, 1956.
- Whether the dispute is a ‘water dispute’ involving mere interpretation of the 6‑Oct‑1975 agreement.
- Whether the 6‑Oct‑1975 agreement merged into the Tribunal award and became an integral part of it.
- Whether the Tribunal adjudicated the subject matter of the 6‑Oct‑1975 agreement.
- Whether Maharashtra’s construction of Babhali barrage within the Pochampad water‑spread area violates the Tribunal award.
- Whether the award permits Maharashtra to construct Babhali barrage or to utilize water up to the Pochampad dam site.
- Whether Maharashtra is entitled to undertake its own project within the Pochampad project and draw water from the Godavari.
- Whether the Babhali barrage would enable Maharashtra to draw and utilize 65 TMC from Pochampad’s storage.
- Whether the factual and technical issues should be referred to a fresh tribunal under the 1956 Act.
- What reliefs, if any, the parties are entitled to.
Legislation cited
- Constitution of Indias. Art. 131
- Inter-State Water Disputes Act, 1956s. Section 5(2), s. Section 5(3)
- Supreme Court Ruless. O.23 rr.1, s. O.23 rr.2, s. O.23 rr.3
Subjects
inter‑state water disputeGodavari riverBabhali barragePochampad damArticle 131injunctionwater‑sharing agreementsupervisory committeeequitable distribution
Judgment
[2013] 2 S.C.R. 153
STATE OF ANDHRA PRADESH A
v.
STATE OF MAHARASHTRA & ORS.
(Original Suit No. 1 of 2006)
FEBRUARY 28, 2013.
B
[R.M. LODHA, T.S. THAKUR AND ANIL R. DAVE, JJ.]
Constitution of India, 1950:
Art. 131 of the Constitution read with 0. 23, rr. 1, 2 and 3 c
of the Supreme Court Rules - Suit by State of Andhra
Pradesh seeking to restrain the defendant State of
Maharashtra from constructing Babhali barrage on river
Godavari within the water spread area of Pochampad dam
and utilizing the water through the proposed barrage - Held: 0
Maharashtra can utilize waters not exceeding 60 TMC for new
projects, including any additional use over and above the
sanctioRed or cleared utilization, as the case may be - The
essence of Clause II (i) of the agreement is to put a cap on
the right of Maharashtra to utilize waters of Godavari river E
below the three dams mentioned therein up to Pochampad
dam site to the extent of 60 TMC for new projects and in no
case exceeding that limit - There is no demarcation made
that the utilization of waters not exceeding 60 TMC for new
projects by Maharashtra shall be from the flowing water -
State of Andhra Pradesh is not entitled to the reliefs as prayed F
for in the suit - However, a three member supervisory
committee as detailed in the judgment is constituted - The
committee shall surprise the operation of Babhali barrage and
Balegaon barrage in terms of the judgment.
G
Art. 131 - suit for injunction filed by one State against
other State - Guiding factors to grant injunction - Explained
- Evidence - Burden of proof.
153 H
154 SUPREME COURT REPORTS (2013) 2 S.C.R.
A Words and Phrases:
Expressions, 'dam', 'up to dam site', 'from the waters in
the area of Gadavari basin' and 'from the waters of Godavari
basin' - Connotation of.
B The State of Andhra Pradesh filed the instant suit
against State of Maharashtra, defendant no. 1 mainly.
Union of India was impleaded as defendant no. 2 and
States of Karnataka, Madhya Pradesh, Chhatisgarh and
Orissa were impleaded as defendants no. 3 to 6. It was
C the case of the plaintiff-State that pursuant to the
agreement dated 6.10.1975 between the two States and
the consequent award dated 27.11.1977 made by the
Godavari Water Dispute Tribunal (GWDT), the plaiantiff
completed Pochampad dam project on river Godavari
o near the border of State of Maharashtra; that the State of
Maharashtra was illegally and unauthorisedly
constructing Babhali barrage within the reservoir bridge
of Pochampad dam and its intention was to utilize the
water of Pochampad dam by invasion of reservoir water
E spread area by construction of Babhali barrage and
allowing its farmers to utilize water for irrigation by lifting
from Babhali pondage which would deprive the people
of the plaintiff State of having water for irrigation and
drinking purposes. The stand of defendant no. 1-State of
F Maharashtra was that by agreement dated 6.10.1975, it
was agreed that Maharashtra could utilize waters not
exceeding 60 TMC for new projects including any
additional use over and above the sanctioned utilization
in terms of the agreement dated 6.10.1975 from the water
in the area of Godavari basin below Paithan dam site and
G upto Pochampad dam site on Godavari. Out of the ten
issues framed in the suit, the parties felt that decision on
issues nos. 5,6,7 and 8 would be crucial. Taking these
issues together, the vital issue for consideration before
the Court was with regard to: "Maharashtra's entitlement
H to construct any project within the water spread area of
STATE OF ANDHRA PRADESH v. STATE OF 155
MAHARASHTRA & ORS.
Pochampad prqject." A
Disposing of the suit, the Court
HELD: 1.1 During the pendency of earlier disputes
before the Godavari Water Disputes Tribunal, the riparian
states entered into bilateral and multi-lateral agreements B
which were endorsed by the Tribunal in its Award dated
27.11.1979 and based its decision on these agreements.
The relevant agreements for the purpose of the instant
case are the agreements dated 06.10.1975 and 19.12.1975.
The Tribunal in Chapter IV of the award has noted that C
the entire area drained by the river and its tributaries is
called river basin. The expressions "Godavari basin",
"Godavari river basin" and "Godavari drainage basin" in
.. the award have been explained to mean the entire area
drained by the Godavari river and its tributaries. From the o
award, it is clear that the Tribunal put its seal of approval
and endorsed the agreement dated 06.10.1975 between
Maharashtra and Andhra Pradesh and the agreement
dated 19.12.1975 between Karnataka, Maharashtra,
Madhya Pradesh, Orissa and Andhra Pradesh and E
ordered that the allocation of waters in the Godavari river
and Godavari river basin between Maharashtra and
Andhra Pradesh and the clearance of projects for
utilization of waters of the Godavari and its tributaries
shall be observed and carried out as per the agreements.
[para 34, 35 and 41) [181-F-H; 182-A; 184-D-F]
F
1.2 The award dated 27.11.1979 and the further award
dated 07 .07 .1980 leave no manner of doubt that the
Tribunal has determined the distribution of water in the
Godavari river on the basis of the agreements of the G
parties. While doing so, the Tribunal was alive to the
position that in deciding water disputes in inter-State river,
the rule of equitable distribution of the benefits of the river
applies so that each State gets a fair share of the water
of the common river but there is no rigid formula for the H
156 SUPREME COURT REPORTS (2013] 2 S.C.R.
A equitable distribution of waters of a river because each
river system has its peculiarities. In terms of Clause I of
the agreement dated 06.10.1975, Maharashtra has been
given right to use for their beneficial use all waters up to
Paithan dam site on the Godavari, up to Siddheswar dam
8 site on the Purna. [para 45] [185-G-H; 186-A-B-E-F]
1.3 Clause fl of the agreement is in two parts. Clause
II (i) provides that 'from the waters in the area of the
Godavari basin' below Paithan dam site on the Godavari
and below Siddheswar dam site on the Purna and below
C Nizamsagar dam site on the Manjra and up to
Pochampad dam site on the Godavari, Maharashtra can
utilize waters not exceeding 60 TMC for new projects,
including any additional use over and above the
sanctioned or cleared utilization, as the case may be.
D Clause II (ii) enables Andhra Pradesh to build
Pochampad project with FRL+1091 feet and MWL+1093
feet. Andhra Pradesh under this Clause has been given
liberty to utilize all the balance waters up to Pochampad
dam site in any manner it chooses for its beneficial use.
E [para 46-47] [186-G-H; 187-A-B]
1.4 The words "from the waters in the area of
Godavari basin" in Clause ll(i) have two significant
expressions, one, 'Godavari basin' and the other, 'in the
F area or. The expression "Godavari basin" along with the
other two expressions "Godavari river basin" and
"Godavari drainage basin" in the award have been
explained to mean the entire area drained by the Godavari
river and its tributaries. By use of the words "from the
waters in the area of Godavari basin" in contradistinction
G to "from the waters of Godavari basin", the parties have
intended to mean waters in the geographical area of
Godavari basin and not confined to flowi.ng waters of
Godavari basin. If the intention of Andhra Pradesh was
that Maharashtra should not utilize the waters of
H
STATE OF ANDHRA PRADESH v. STATE OF 157
MAHARASHTRA & ORS.
Pochampad reservoir in its territory, such limitation A
would have been provided expressly. In the absence of
any express limitation, except quantity on the use of water
by Maharashtra within its territory in Clause ll(i) of the
agreement dated 6.10.1975, no other limitation can be
read. [para 48-49) [187-E-F; 188-B-F] B
1.5 Moreover, apportionment of the Godavari river was
agreed to by the two States in a typical situation in as
much as building of Pochampad project by Andhra
Pradesh with FRL+1091 feet and MWL+1093 feet involved
submergence of certain areas in the State of Maharashtra.
c
But for Maharashtra's consent to submergence of its area,
Andhra Pradesh could not have built Pochampad dam
with capacity of 112 TMC; rather its capacity would have
been limited to 40 TMC. Thus, in the absence of any
express clause, it cannot be said that Maharashtra was D
given right to utilize waters not exceeding 60 TMC for new
projects from the flowing waters of the Godavari basin
.alone. On careful reading of Clause ll(ii), it is evident that
this Clause gives right to Andhra Pradesh to utilize all the
balance waters up to Pochampad dam site in any manner E
it chooses for its beneficial use. The use of the expression,
"all the balance waters up to Pochampad dam site"
signifies that parties agreed that on utilization of waters
not exceeding 60 TMC for new projects by Maharashtra
from the waters in the geographical area of the Godavari F
basin, all the balance waters up to Pochampad dam site
is left for utilization by Andhra Pradesh for its beneficial
use. [para 50) [188-G-H; 189-A-DJ
2.1 The common meaning of the word "dam" is the G
structure across the stream, including the abutment on
the sides. The dam is an obstruction to the natural flow
of the water of a river or a barrier to prevent the flowing
water. A dam is built across a water course to confine and
keep back flowing water. [para 51) [189-E]
H
158 SUPREME COURT REPORTS (2013] 2 S.C.R.
A Morton v. Oregon Short Line Ry. Co. 87 P. 151, 153, 48
Or. 444; and Co/we/I v. May's Landing Water Power Co. 19
N.J. Eq. (4 C.E.Green) 245, 248 - referred to.
Indian Standard Glossary of Terms Relating To River
Valley Projects, Part 8; Dams and Dam Sections [First
8
Revision], paragraph 2.27; Glossary of Irrigation and Hydro-
E/ectric Terms and Standard Notations used in India, Third
Edition, published by Central Board of Irrigation and
Power, "Introduction to dams", Publication No. 220 by
C Central Board of Irrigation and Power under the Chapter
"Dam Sites - Large Dams" - referred to.
2.2 It is sound principle of interpretation that if an
expression has been used in an agreement at more than
one place, such expression must bear the same meaning
D at all places unless expressed otherwise. When the
agreement dated 06.10.1975 is read carefully, it would be
seen that in Clause V, it is provided that Maharashtra and
Andhra Pradesh will be free to use additional quantity of
300 TMC of water each below Pochampad 'dam site' for
E new projects. The 'dam site' in the agreement has the
same meaning in all clauses and it means the concrete
structure of the dam. Therefore, Clause II (i) that provides
that Maharashtra can utilize waters not exceeding 60 TMC
for new projects from the waters in the area of the
F Godavari basin below three dam sites noted therein and
up to Pochampad dam site on the Godavari gives right
to Maharashtra to utilize waters of the Godavari river up
to Pochampad site which may be water flowing through
the river from the catchment area or the water spread area.
G Such utilization is not confined to the water flowing
through the river from the catchment area. The thrust of
the parties in Clause II (i) and the essence of this clause
is to put a cap on the right of Maharashtra to utilize waters
of Godavari river below the three dams mentioned therein
up to Pochampad dam site to the extent of 60 TMC for
H
STATE OF ANDHRA PRADESH v. STATE OF 159
MAHARASHTRA & ORS.
new projects and in no case exceeding that limit. There A
is no demarcation made that the utilization of waters not
exceeding 60 TMC for new projects by Maharashtra shall
be from the flowing water. While reaching the agreement,
the two States must have sought to equalize the burden
and benefits. [para 52 and 81 (i) and (ii)] [192-E-F, G-H; 193- B
A-DJ
2.3 As a matter of fact, Andhra Pradesh understood
the location of Pochampad dam site at particular latitude
and longitude and not the reservoir. This also indicates
that by Pochampad dam site what is meant in the C
agreement dated 06.10.1975 is the structure and not the
spread area. [para 53] [193-E]
Orient Papers & Industries Ltd. and Another v. Tahsildar-
c u m-1 rrig ation Officer and Others 1998 (1) Suppl. D
SCR 442 =1998 (7) SCC 303 - held inapplicable.
2.4 In the instant case, the Court is concerned with
the interpretation of the words "up to dam site" occurring
in the agreement between the two states which was
entered into when the dispute was already pending E
before the Tribunal and Andhra Pradesh was intending
to construct Pochampad dam with 112 TMC that would
submerge certain areas of Maharashtra. Therefore, these
words have to be understood in the context of the
agreement and terms thereof. In the overall context it is F
very difficult to hold that dam site is given meaning in the
agreement as spread area of dam. [para 54.1) [194-E-G]
2.5 Generally, there cannot be a dam within a dam.
This is also true that generally there cannot be lake/ G
pondage of a project of one State within the lake/
pondage of the project of another state. But this Court is
concerned with specific water sharing agreement
between the two states which has been endorsed by the
Tribunal. Like any other agreement, the terms of inter- H
160 SUPREME COURT REPORTS [2013] 2 S.C.R.
A State agreement ordinarily must be found out from the
actual words employed therein. In Clause II (i), there is no
limitation imposed upon Maharashtra to utilize the waters
of the Godavari river from the water flowing through the
river from the catchment area only in its territory. What
8 Maharashtra has to ensure is that it does not utilize waters
of Godavari river in its territory exceeding 60 TMC for new
projects and it does not interfere with natural and
continuous flow of '!'later into Pochampad reservoir. [para
55] [195-A-E]
C 3.1 In a suit for injunction filed by one State against
the other State, the burden on the complaining State is
much greater than that generally required to be borne by
one seeking an injunction in a suit between private
parties. The complaining State has to establish that
D threatened invasion of rights is substantial and of a
serious magnitude. In the matter between States,
injunction would not follow because there is infraction of
some rights of the complaining State but a case of high
equity must be made out that moves the conscience of
E the Court in granting injunction. [para 58] [196-D-F]
State of Washington v. State of Oregon 297 US 517 -
referred to.
3.2 Maharashtra has suggested without prejudice to
F its rights and contentions that it is willing to reimburse
0.6 TMC of water to Andhra Pradesh by releasing the
same on 1st March every year. Maharashtra has
submitted that the operation of Babhali barrage can be
supervised by a committee consisting of representatives
G of Central Water Commission and of States of A1"1dhra
Pradesh and Maharashtra. This committee will supervise
that the gates are lowered on the 28th October each year
and will remain in operation till the end of June n~.xt year
and that on the 1st of March the gates will be lifted to allow
H the flow of water of 0.6 TMC to Andhra Pradesh. Thus,
STATE OF ANDHRA PRADESH v. STATE OF 161
MAHARASHTRA & ORS.
even 0.6 TMC will not be made use of by Maharashtra. A
[para 62] [198-G-H; 199-A]
3.3 The commitment of Maharashtra that the Babhali
barrage project requires 2.74 TMC of water out of the
allocation of 60 TMC for new projects under the 8
agreement of which only 0.6 TMC is from the common
submergence of Pochampad reservoir and Babhali
barrage if accepted and its compliance is ensured, it may
be conveniently held that Babhali barrage would not
enable Maharashtra to draw and utilize 65 TMC of water C
from the storage of Pochampad project as alleged by
Andhra Pradesh. [para 81 (iii)] [211-E-F]
3.4 Even if the interpretation placed upon the
agreement dated 06.10.1975 by Andhra Pradesh is
accepted that utilization of waters to the extent of 60 TMC D
for new projects by Maharashtra from below the three
dam sites mentioned in Clause ll(i) up to Pochampad dam
site can be only from water flowing through the river from
the catchment area and not from the pondage/wate·r
spread area of Pochampad dam, on the basis of facts E
which have· come on record, a case of substantial injury
of a serious magnitude and high equity that moves the
conscience of the Court has not been made out by
Andhra Pradesh justifying grant of injunction. [para
81(iv)] [211-G-H; 212-A] F
3.5 This Court, therefore, holds· that Andhra Pradesh
is not entitled to the reliefs, as prayed for, in the suit. [para
82] [212-B]
3.6 However, a three member supervisory Committee G
as detailed in the judgment is constituted. The Committee
shall SUfprise the operation of the Babhali barrage and
Balegaon barrage in terms of the judgment. [para 83]
[212-C-E]
H
162 SUPREME COURT REPORTS [2013) 2 S.C.R.
A Case Law Reference:
1998 (1) Suppl. SCR 442 held inapplicable para 26
87 P. 151, 153, 48 Or. 444 referred to para 51.1
19 N.J. Eq. (4 C.E.Green) referred to para 51.2
B
245, 248
297 us 517 referred to para 58
CIVIL ORIGINAL JURISDICTION : Original Suit No. 1 of
c 2006
Under Article 32 of the Constitution of India.
WITH
W.P. Nos. 134 of 2006, 210 & 207 of 2007.
D
Conmt. Pet. (C) No. 142 of 2009 in Orgnl. Suit No. 1 of 2006.
K. Parasaran, Altaf Ahmad, A.K. Ganguli, T.R.
Andhyarujina, Ravindar Rao, Krishnamurthi Swami, P. Venkat
Reddy, Anil Kumar Tandale, S. Udaya Kumar Sagar, Bina
E Madhavan, Anindita Pujari (for LawYer's Knit & Co.), D.M.
Nargolkar, Soumik Ghosal, Amey Nargolkar, R.K. Rathore,
Rashmi Malhotra, D.S. Mahra, B.S. Banthia, Radha Shyam
Jena, Anitha Shenoy, V.N. Raghupathy, Naresh Kumar, C.K.
Sucharita, Rumi Chandar, Parekh & Co., Shakil Ahmed Syed,
F Asha Gopalan Nair, Guntur Prabhakar, D. Bharathi Reddy for
the appearing parties.
The Judgment of the Court was delivered by
G R.M. LODHA, J.
Original Suit No. 1 of 2006
1. Two riparian states -Andhra Pradesh and Maharashtra
- of the inter-state Godavari river are principal parties in the
H
....,
STATE OF ANDHRA PRADESH v. STATE OF 163
MAHARASHTRA & ORS. [R.M. LODHA, J.]
suit filed under Article 131 of the Constitution of India read with A
Order XXlll Rules 1,2 and 3 of the Supreme Court Rules, 1966.
The suit has been filed by Andhra Pradesh (Plaintiff)
complaining violations by Maharashtra (1st Defendant) of the
agreements dated 06.10.1975 and 19.12.1975 which were
endorsed in the report dated 27.11.1979 containing decision B
and final order (hereafter to be referred as "award") and further
report dated 07.07.1980 (hereafter to be referred as "further
award) given by the Godavari Water Disputes Tribunal (for
short, 'Tribunal'). The violations alleged by Andhra Pradesh
against Maharashtra are in respect of construction of Babhali c
barrage into their reservoir/water spread area of Pochampad
project. The other four riparian states of the inter-state Godavari
river - Karnataka, Madhya Pradesh, Chhattisgarh and Orissa
have been impleaded as 3rd, 4th, 5th and 6th defendant
respectively. Union of India is 2nd defendant in the suit. 0
2. The Godavari river is the largest river in Peninsular India
and the second largest in the Indian Union. It originates in the
Sahayadri hill ranges at an altitude of 3500 ft. near
Triambakeshwar in Nasik District of Maharashtra and flows for
a total length of about 1465 Km. (910 miles) through E
Maharashtra and Andhra Pradesh before joining the Bay of ·
· Bengal. The river has its basin area spread into other States
like Karnataka, Orissa, Chhattisgarh and Madhya Pradesh. In
the high rainfall zone in Sahayadris, the river is joined by Darna
and Kadwa tributaries on its right and left banks respectively. F
Downstream at a distance of 217 Km. (135 miles), the
combined waters of Pravara and Mula tributaries join the river.
About 45 Km. (28 miles) downstream of Pravara confluence,
Maharashtra constructed the Paithan Dam (Jaikwadi Project)
to utilize the flows available up to that site. Further downstream, G
the river while in Maharashtra, receives waters of Sindphana,
Puma and Dudhna tributaries. At the border between ~
Maharashtra and Andhra Pradesh, Godavari receives the
1
combin~d waters of Manjra (Manjira), Manar and Lendi rivers.
After it enters Andhra Pradesh, at a distance of 764 Km. (475 H
164 SUPREME COURT REPORTS [2013] 2 S.C.R.
A miles) from its origin, Pochampad dam has been constructed
by Andhra Pradesh.
3. The river basin is divided into 12 sub-basins. The
subject matter of the present suit falls in G-1 and G-5 sub-
B basins, details of which are as follows:
G-1 Upper Godavari:-This sub-basin includes the reach
of the river Godavari from its source to its confluence with
the Manjra. The sub-basin excludes the catchment areas
of the Pravara, the Puma and the Manjra but includes that
C of all other tributaries which fall into the Godavari in this
reach.
G-2 Pravara:- This sub-basin includes the entire
catchment of the Pravara from the source to its confluence
0 with the Godavari including the catchment areas of the
Mula and other tributaries of the Pravara.
G-3 Puma:-This sub-basin includes the entire catchment
of the Puma and of all its tributaries.
E G-4 Manjra:- This sub-basin includes the entire
catchment of the Manjra from its source to its confluence
with the Godavari including the catchment areas of the
Tima, the Karanja, the Haldi, the Lendi, the Manar and
-
other tributaries.
F
G-5 Middle Godavari:-This sub-basin comprises the river
Godavari from its confluence with the Manjra to its
confluence with the Pranhita. The sub-basin includes the
direct catchment of the Godavari in this reach as well as
of its tributaries, except the Maner and the Pranhita.
G
4. Rainfall during monsoon months (i.e. June to
September) is the major contribution to the Godavari river flows.
Monsoon contributes about 90% of river,flow. Non-monsoon
season contributes only about 10% of the flows which are not
H
STATE OF ANDHRA PRADESH v. STATE OF 165
MAHARASHTRA & ORS. [R.M. LODHA, J.]
well defined and well spread as that of South West monsoon. A
5. On 10.04.1969, the 2nd defendant constituted the
Tribunal under the Inter-State Water Disputes Act, 1956 (for
short, "1956 Act"). On the same day, disputes among the
riparian states regarding the inter-state Godavari river and the B
river valley thereof were referred to the Tribunal for adjudication.
The Tribunal investigated the matters referred to it and made
its award on 27 .11.1979 setting out the facts as found by it and
giving its decision on the matters referred to it. The Tribunal
gave further award under Section 5(3) of the 1956 Act on
07.07.1980. The bilateral and other inter-state agreements C
entered into by the riparian states during the period 1975 to
1980 for the distribution of water of Godavari river form the
· main features of the award.
6. The case of Andhra Pradesh in the plaint is that D
construction of irrigation project to its full potential at
Pochampad, which is located close to the inter-state border of
. Andhra Pradesh and Maharashtra, involved submergence of
area within Maharashtra. On 06.10.1975, in the course of
pendency of disputes before the Tribunal, an agreement (which E
was endorsed by the Tribunal) was entered into between
Andhra Pradesh and Maharashtra whereby Maharashtra
agreed that Andhra Pradesh can go ahead with Pochampad
dam project. Acting on the agreement, Andhra Pradesh
constructed Pochampad dam on Godavari river at a distance F
of 764 km. (from its origin) near Pochampad village in its
Nizamabad district. The dam is located by 5 km. upstream of
Soan Bridge on Hyderabad - Nagpur Highway. The
Pochampad dam is 140 feet high masonry dam, forming a
reservoir with Full Reservoir Level (FRL) + 1091 feet and G
Maximum Water Level (MWL)+1093 feet. The storage capacity
of the reservoir at FRL is 112 TMC and it has a water-spread
area of about 175 square miles at MWL extending into the
territory of Maharashtra. At FRL, the reservoir water spreads
upstream up to S39th km. of the Godavari river from its origin. H.
166 SUPREME COURT REPORTS [2013] 2 S.C.R.
A A total length of 125 km of the Godavari river bed gets
submerged when the reservoir is at FRL +1091 feet. Out of the '
submerged river bed length of 125 km, the river bed to a length
of 55 km is located in the territory of Maharashtra. A length of
16 km of Manjira river bed before its confluence with river
B Godavari also gets submerged within its banks.
7. Andhra Pradesh has stated that an expenditure of about
Rs.2,700 crores has been incurred on Pochampad dam project.
The total irrigation potential under the Pochampad project is
about 16 lac acres and a total quantity of 196 TMC is proposed
C to be utilized under the project to cater to the needs of the
backward districts of Telangana, Andhra Pradesh is said to
have reimbursed Rs. 551.11 lacs to Maharashtra for
construction of five bridges at Siraskhod, Babhali, Chirli-Digras,
Balegaon, Belur across the Godavari river and two bridges
D across the Manjira river at Machnur (Nagani) and Yesgi and the
roads to provide proper transportation facilities connecting
villages on either sides of the Godavari and Manjira rivers.
8. The wrongs against which redress is sought are, first,
E Maharashtra's illegal and unauthorised act of construction of
Babhali barrage within the reservoir bridge of Pochampad dam
contrary to the award and without any right and entitlement; and,
second, Maharashtra's intention to utilize the water of "'
Pochampad by invasion of reservoir water spread area by
F construction of Babhali barrage which would deprive Andhra
Pradesh in general and its inhabitants in particular in the
districts of Adilabad, Nizamabad, Karimnagar, Warangal,
Nalgonda, Khammam and Medak of having water for irrigation
and drinking purposes and allow its farmers to utilize water for
G irrigation by lifting from Babhali pondage.
9. Andhra Pradesh complains that construction of Babhali
barrage will interfere with natural and continuous flow of water
by stopping the freshes into Pochampad reservoir resulting in
Pochampad project getting water only when. the Babhali-
H
STATE OF ANDHRA PRADESH v. STATE OF 167
MAHARASHTRA & ORS. [R.M. LODHA, J.]
barrage gets filled up and surpluses. According to Andhra A
Pradesh, Babhali barrage is being built by Maharashtra with
storage capacity of 2.74 TMC. The necess!ty to file suit arose
since all the efforts made by Andhra Pradesh in stopping
construction of Babhali barrage by Maharashtra failed and
despite pendency of a writ petition before this Court in the B
nature of Public Interest Litigation, Maharashtra continued with
construction of Babhali barrage.
10. Maharashtra has traversed the claim of Andhra
Pradesh. Although diverse preliminary objections have been C
raised by Maharashtra in its written statement (which also came
to be amended) but these preliminary objections were not
pressed in the course of arguments and, therefore, we do not
think it necessary to refer to the preliminary objections.
Maharashtra has replied that by agreement dated 06.10.1975
between the two states, which was filed before the Tribunal D
based on which award came to be passed, it was agreed that
Maharashtra can utilize waters not exceeding 60 TMC for new
projects including any additional use over and above the
sanctioned or cleared utilization on 06.10.1975 from the waters
in the area of the Godavari basin below Paithan dam site on E
-
the Godavari, and below Siddheswar dam site on the Puma,
and below Nizamsagar dam site on the Manjira and up to
Pochampad dam site on Godavari. Maharashtra says that this
is an enbloc utilization permitted to it anywhere in the Godavari
basin between Paithan dam site, Siddheswar dam site, F
Nizamsagar dam site and Pochampad dam site on the main
Godavari river. There is no restriction on any projects of
Maharashtra or where they are to be located .. The only
restriction is that Maharashtra cannot utilize more than 60 TMC.
There is also no mention or restraint on location of storages in G
this stretch of the basin, number of storages and the sizes of
such storages which Maharashtra can construct to enable it to
utilize its share of 60 TMC for new projects to be sanctioned
or cleared after 06.10.1975.
168 SUPREME COURT REPORTS [2013) 2 S.C.R.
A 11. Maharashtra asserts that it has not forfeited its right
to take its share of Godavari waters from any portion of its own
territory as it deems fit. The rights over its own land including
the submerged portion of its territory by Pochampad storage
continue to vest with it and not Andhra Pradesh. No lands have
B been acquired in Maharashtra for Pochampad storage by
Andhra Pradesh. Construction of projects for using its share of
water is its prerogative; the only cap is that the utilization should
not exceed 60 TMC.
12. Maharashtra has denied that the aggregate water
C utilisation by it is 63.018 TMC. It has asserted that aggregate
planned utilization of projects sanctioned after 06.10.1975 shall
be less than 60 TMC.
13. It is the case of Maharashtra that there is necessity to
D have storage reservoirs in the entire Godavari basin to harness
the river water not only in Telangana region but also in
Marathwada area of Maharashtra. According to Maharashtra,
Andhra Pradesh can conveniently harness the admitted
available flows by constructing storages and barrages below '·
E Sriramsagar to meet not only the reasonable needs of
Telangana region in the Godavari basin but also in the adjoining
Krishna basin.
14. Maharashtra has set out the features of Babhali
•
barrage and its need. Maharashtra says that Babhali barrage
F is located on the main Godavari river in Nanded district; 7.0
Kms. upstream of Maharashtra - Andhra Pradesh border. The
Pochampad dam on the Godavari river is 81 Kms. downstream
of Babhali barrage. Pochampad storage stretches to a
distance of 32 Kms. within Maharashtra territory and its
G submergence is contained within river banks in its territory
under static conditions. According to Maharashtra, there is
acute water need and no other alternate resource is available
in the vast area and population of Nanded district on both the
banks of Godavari over a stretch of 97 Kms. Lift irrigation
H
STATE OF ANDHRA PRADESH v. STATE OF 169
MAHARASHTRA & ORS. [R.M. LODHA, J.]
schemes had been constructed by it during 1972 to 1975 for A
lifting water from the main Godavari river for drinking water and
some Rabi irrigation. There was no objection by Andhra
Pradesh to such schemes even though the water was extracted
from the submergence of the Pochampad project in
Maharashtra. After some time, difficulties were experienced in B
getting the needed water supplies in the assured manner from
these lift irrigation schemes. There was acute agitation and
pressure from the local people of 58 villages to provide them
with a regulating scheme to get assured supply of water for
irrigation and drinking water according to their needs. To enable c
this requirement, it was decided in 1995 to create a small
pondage at Babhali to assure and regulate the needed
supplies. As Pochampad dam is 81 Kms. downstream of
Babhali barrage, the level of stored water at Pochampad
recedes completely away from 32 Kms. in Maharashtra territory D
by about December. The gates of Babhali barrage are,
therefore, proposed to be kept open during monsoon period
·up to latter half of October as if there is no barrage and lowered
thereafter to create necessary small pondage in fair-weather
to meet the needs in Maharashtra out of the permitted share
of 60 TMC. The barrage crest level at Babhali is at river bed E
level and there will be no obstructions to Godavari river flows
up to Pochampad dam during monsoon period. The small
pondage at Babhali having a capacity of 2.74 TMC for the use
during fair-weather is a negligible fraction of Pochampad
storage of 112 TMC out of which only 0.6 TMC is a common F
storage. By the middle of December, Pochampad storage
recedes totally away from Maharashtra territory and, therefore,_
the pondage at Babhali during operation does not interfere with
the Pochampad storage of the Andhra Pradesh. Babhali
storage is a vital component for Maharashtra to use part of its G
share of 60 TMC where it is most needed.
15. Andhra Pradesh filed rejoinder and denied diverse
facts and aspects stated by Maharashtra in its written
statement. H
170 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 16. On the pleadings of the parties, the issues were
framed by this Court on 16.03.2007 which read as follows:
1) Whether the suit is not maintainable in view of the bar
under Article 262 of the Constitution of India read with
Section 11 of the ISWD Act 1956?
B
2) Whether the Lis in the present suit is a 'water dispute'
involving merely the interpretation of the agreement dated
6.10.1975?
c 3) Whether the agreement dated 6.10.1975 has merged
into the award and become an integral part of the Award?
4) Whether there was no adjudication of disputes between
the two states by the GWDT in respect of the subject of
the agreement dated 6.10.1975, though the said
D agreement was considered by the Tribunal and was made
part of the award?
5) Whether the action of State of Maharashtra in
undertaking and proceeding with the construction of
E Babhali Barrage on River Godavari within the water spread
area of Pochampad reservoir and to utilize water from the
said reservoir is contrary to the GWDT award?
6) Whether the Godavari Disputes Tribunal award enables
the State of Maharashtra to construct Babhali Barrage
F within the water spread area of Pochampad project or
utilize water upto the Pochampad dam site?
7) Is the State of Maharashtra entitled to put up its own
project in the project put up by the plaintiff and draw water
G at all from River Godavari through that project?
8) Would the Babhali Barrage project proposed by
Maharashtra enable the said State to draw and utilize 65
TMC of water from the storage of Pochampad project?
H 9) In any event, whether in view of several disputed
STATE OF ANDHRA PRADESH v. STATE OF 171
MAHARASHTRA & ORS. [R.M. LODHA, J.]
questions of fact and of a te9hnical nature involved in the A
suit, the dispute should be referred to a Tribunal
constituted under the Inter State River Water Disputes Act,
1956?
10) To what relief are the parties entitled?
B
17. Neither Andhra Pradesh nor Maharashtra desired to
lead oral evidence though series of documents were filed by
them. On 05.08.2008, the Court recorded that counsel on either
side had agreed that there would not be any oral evidence in
the suit. As both sides had filed series of documents, the Court C
on that day observed that the parties may file a list of
documents on which they seek to place reliance and these
documents may be marked in the presence of Registrar
(Judicial).
D
18. Plaintiff initially produced as many as 59 documents.
Some of these documents are: geographical and hydrological
feature of Godavari river, inter-state agreement between Andhra
Pradesh and Maharashtra dated 06.10.1975, inter-state
agreement dated 19.12.197-5 among the Godavari riparian E
states, copy of Godavari Water Disputes Tribunal Award, list
of projects existing/cleared and contemplated projects showing
demand of 91.80 TMe by Maharashtra below Paithan, below
Siddheswar and below Nizamsagar put forth before Tribunal,
clearance of the Pochampad Project (Sri Ramasagar Project)
Stage-I by ewe, clearance of the Pochampad Project (Sri F
Ramasagar Project) Stage-II by CWC, summary record of
discussions of the inter-state meeting between the two States
held on 11.07.2005 at ewe, minutes of the inter-state meeting
between the two States held on 05.10.2005 at ewe, summary
record of discussions of inter-state meeting between the Chief G
Ministers of the two States convened by Minister, Water
Resources, Government of India on 04.04.2006, statement
showing the details of yearly/monthly reservoir levels of
Pochampad Project for the years 1995-96 to 2006-07, note
regarding Babhali and 10 other Barrages on Godavari river H
172 SUPREME COURT REPORTS (2013) 2 S.C.R.
A submitted by Maharashtra during the inter-state meeting held
on 11.07.2005 at CWC, map showing the Godavari basin,
annual normal isohtetal map of Godavari basin furnished by the
Director, IMO, Pune dated 23.08.2007 addressed to Chief
Engineer, IS & WR, Government of Andhra Pradesh and the
B Statement showing details of monthly inflows 1983-84 to 2004-
05.
19. On the other hand, Maharashtra initially tendered 23
documents, inter-alia, these documents are : copy of the
statements showing planned use of projects, sub-valley wise
C before 06.10.1975, copy of schematic diagram, copy of minutes
of meeting dated 21.09.2006 convened by ewe including letter
dated 16.6.2006 from Chief Minister of Maharashtra to Minister
of Water Resources, Government of India, detailed project
report of Babhali Barrage, actual utilization of the projects in
D (42+60) TMC area for past 12 years by Maharashtra produced
before ewe on 05.10.2005, materials showing existence of
lift irrigation schemes prior to 06.10.1975, schematic diagram
showing additional storage of Pochampad dam on account of
permission granted by Maharashtra to submergence in its
E territory [Ex. D-22] and map showing area demarcating the
controlling points as per Clause I of agreement dated
06.10.1975 allowing Maharashtra to use 60 TMC of water.
20. Both parties filed few documents thereafter. In the
affidavits filed by Andhra Pradesh and Maharashtra in respect
F of the admission and denial of documents some documents
tendered by either side have been admitted and some denied.
21. Learned senior counsel for the parties agreed that ·
issue nos. 5,6,7 and 8 are crucial issues and the fate of suit is
G dependant upon decision on these issues. It is appropriate that
the four issues are taken up together for consideration as these
issues are inter-connected.
Issue nos. 5, 6, 7 and 8
H 22. The vital question for consideration is Maharashtra's
STATE OF ANDHRA PRADESH v. STATE OF 173
MAHARASHTRA & ORS. [R.M. LODHA, J.]
entitlement to construct any project within the water spread area A
of Pochampad project. The question must be answered in light
of the award and further award given by the Tribunal which in
turn depends on interpretation of the bilateral agreement
entered into between Andhra Pradesh and Maharashtra on
06.10.1975. B
23. Mr. K. Parasaran, learned senior counsel for Andhra
Pradesh extensively referred to diverse Clauses of the
agreement dated 06.10.1975, particularly, Clauses I, ll(i),ll(ii)
and V. He also referred to the award and submitted that the
award is a package and provides for all the reliefs to which the C
parties were entitled. Maharashtra is not entitled to put up
Babhali barrage as the award exhausts all reliefs. He submitted
that Andhra Pradesh had conceded in favour of Maharashtra
a right to utilize entire yield to an extent of 241.5 TMC in the
high rainfall zone up to Paithan and Siddheswar dam sites D
without any restraint taking into consideration that Maharashtra
had agreed to submersion of its land for Pochampad project.
To me~t the demand and requirement in the defined region
between Paithan· and. Pochampad projecii;, Me.\,ara,:;htra had
agreed to a cap on its utilization to 60 TMC in addition to E
existing and sanctioned/cleared projects. The submergence in
Maharashtra by Pochampad project was agreed to by
Maharashtra subject to certain conditions like Andhra Pradesh
bearing cost of acquisition, rehabilitation of displaced families,
cost of roads and bridges but no rights were created in favour F
of Maharashtra as a condition of submergence to waters within
Pochampad dam site. If Maharashtra had any right to water in
Pochampad storage within its territory it would have been so
recorded in the agreement but the silence in this regard leaves
no manner of doubt that Maharashtra has no right to water in G
Pochampad storage. It is the submission of learned senior
counsel for Andhra Pradesh that the apportionment
incorporated in the award is in view of the peculiar basin feature
in Andhra Pradesh with only one site at Pochampad being
suitable for construction of irrigation project and capable of H
174 SUPREME COURT REPORTS (2013] 2 S.C.R.
A conveying water through canals by gravity flow to meet the entire
drinking and irrigation requirements of Telangana region of the
State. Due to low rainfall, the Telangana region of the State of
Andhra Pradesh, through which a major part of the river flows,
is frequently affected by droughts and famines because of
s which the said region requires assured water supply for drinking
purposes and the two crops - Khariff and Rabi.
24. Learned senior counsel Mr. K. Parasaran vehemently
contended that the agreement dated 06.10.1975, which merged
into the award, demonstrates the dichotomy between flowing
C waters and waters within the reservoir. The allocation of waters
in Godavari basin has been made on a dichotomy of sources
of waters. The expressions in the award "Godavari basin", "dam
site", "below dam site" and "up to dam site" have to be
construed having regard to the dichotomy between flowing
D waters and waters within the water spread area, concepts in
water law and how the parties understood. He submitted that
the award has to be interpreted as a judgment and not like a
statute and the above expressions have to be construed in the
comext of rights of states in the inter-state river water. The
E expressions "Godavari river basin" and "Godavari drainage
basin" used in the award mean the entire area drained by the
Godavari river and its tributaries.
25. Learned senior counsel for Andhra Pradesh argued
F that the phrase ''waters up to" would necessarily mean that there
is a starting point and terminating point up to which it can go.
One cannot conceive "upto" without commencing from a
location and proceeding "upto". It is thus submitted that phrase
"dam site" would necessarily mean entire water held on the site
G starting from the concrete dam structure up to the area of the
water stored. He would submit that Clauses I and ll(i) of the
agreement deal with waters in the area of Godavari basin
allotted to Maharashtra. Clause ll(ii) deals with water allocated
to Andhra Pradesh. 60 TMC water is allowed to Maharashtra
from the Godavari basin. Godavari basin is a river basin which
H
STATE OF ANDHRA PRADESH v. STATE OF 175
MAHARASHTRA & ORS. [R.M. LODHA, J.]
means and includes the entire area drained by the mainstream A
and its tributaries - and balance waters in the Godavari basin
up to Pochampad dam site is left for Andhra Pradesh. For the
purposes of meaning of the expression, "river basin", Mr. K.
Parasaran, learned senior counsel referred to Words and
Phrases; Permanent Edition [Volume-VJ; pages 292 and 293. B
He submitted that in the award, the yield of the river has not
been determined and apportioned. After considering the rights
in the various projects of the respective states, the rest of the
water in Godavari basin is allocated to Maharashtra up to 60
TMC and Andhra Pradesh all the balance water up to c
Pochampad site.
26. Mr. K. Parasaran argued that the interpretation of the
words "up to dam site" set up by Maharashtra that it means
concrete structure was contrary to concepts in water law and
underlying principle for allocation of waters in Godavari basin D
whose allocation has been made on dichotomy of sources of
waters. According to him, "up to Pochampad dam site" means
the Godavari basin water available from the catchment up to
where the water spread of Pochampad project extends as the
storage in Pochampad belongs to Andhra Pradesh. In this E
regard, he relied upon a decision of this Court in Orient Papers
& Industries Ltd. and Another v. Tahsi/dar-cum-lrrigation
Officer and Others 1•
27. Learned senior counsel submitted that the phrases, F
"below Paithan dam site and Siddheswar dam site" in Clause
ll(ii) and "below Pochampad dam site" in Clause V of the
agreement would exclude the stored waters of such dams to
give effect to the restriction imposed on utilization by the states
in such Clauses. The phrases "all waters up to Paithan dam G
site" in Clause I and "balance waters up to Pochampad dam
site" in Clause ll(ii)" in the context they are used clearly contrast
the flowing water and stored waters respectively in each of the
dams. Seen thus, it leaves no manner of doubt that Maharashtra
1. 1998 (7) sec 303. H
176 SUPREME COURT REPORTS [2013] 2 S.C.R.
A will be entitled to waters mentioned in Clause ll(i) and Andhra
Pradesh the balance of waters which includes the storage of
Pochampad up to FRL of 1091 feet.
28. Learned senior counsel for Andhra Pradesh submitted
that there cannot be lake/pondage of a project of one state
8
within the lake/pondage of the project of another state; there
cannot be a dam within a dam. Similarly, there cannot be a
barrage within a dam because barrage also obstructs the flow
of water and creates storage when the gates are lowered. He
C referred to the inter-state meeting between Andhra Pradesh and
Maharashtra held on 21.07.1978 with regard to construction of
bridges and roads. He submitted that there was a difference
of opinion with regard to the river bed level of the then proposed
Balegaon project upstream of Babhali and it was decided to
constitute a joint team for inspection but Maharashtra did not
D pursue the matter further which would show that Andhra
Pradesh and Maharashtra understood the terms of the award
to mean that there cannot be project within the water prism of
Pochampad project and acted upon as such.
E 29. On the other hand, Mr. T.R. Andhyarujina, learned
senior counsel for Maharashtra argued that the agreement
dated 06.10.1975 between Andhra Pradesh and Maharashtra
is an agreement for the equitable distribution of waters of
Godavari river; in absence whereof the Tribunal would have
F determined the equitable shares of each state on Godavari river
and its tributaries. As Andhra Pradesh had planned a major
river project of the Pochampad dam with storage of 112 TMC
with FRL of 1091 feet by which the territory of Maharashtra was
going to be submerged, it could not be done by Andhra Pradesh
G without the consent of Maharashtra. By Agreement of
06.10.1975, Maharashtra agreed to allow Andhra Pradesh to
have the FRL of Pochampad dam to 1091 feet and consequent
submergence in the river bed in the territory of Maharashtra. In
return and in consideration of this concession by Maharashtra,
Andhra Pradesh agreed that Maharashtra would have a right
H
STATE OF ANDHRA PRADESH v. STATE OF 177
MAHARASHTRA & ORS. [R.M. LODHA, J.]
to utilize 60 TMC of water on Godavari river leaving the balance A
to be utilized by Andhra Pradesh. Under Clause ll(i), the
agreement provided that Maharashtra can utilize the waters of
Godavari river not exceeding the limit of 60 TMC up to
Pochampad dam site for new projects including additional use
over and above present sanctioned or cleared utilization. B
Clause ll(i) of the agreement places no restriction. on
Maharashtra to utilize any waters from the waters of
Pochampad reservoir which would come into Maharashtra. If
the intention of Andhra Pradesh was that Maharashtra should
not utilize the waters of Pochampad reservoir in its territory, c
such limitation would have been provided expressly. Learned
senior counsel for Maharashtra in this regard also relied upon
Clause VII of the Tribunal's award and submitted that this Clause
recognised the general right of a state to utilize waters within
its territories and consistent with this Clause no restrictions were 0
placed on Maharashtra save and except the cap on utilization
of 60 TMC for new projects etc. There cannot be any implied
limitation on the use of waters by Maharashtra and any limitation
on the use of water by Maharashtra within its territory has to
be made expressly.
E
30. In response to the contention raised by Andhra Pradesh
that there is limitation on the use of the water by Maharashtra
in Clause ll(i} by reason of the words "up to Pochampad dam
site", learned senior counsel for Maharashtra submitted that the
expression "dam site" must be given the same meaning in all F
places of the award in which it is found, namely, in Clause ll(i),
ll(ii) and V. According to him, "up to the dam site" means "up
to the concrete structure of the dam". Any other meaning would
result into absurdity and make other·clauses unworkable. He
submitted that Andhra Pradesh itself has understood the G
location of Pochampad dam site at particular latitude and
,longitude and not the reservoir.
31. The agreement dated 06.10.1975 was preceded by
full discussions between the Chief Ministers of two states. We H
178 SUPREME COURT REPORTS [2013] 2 S.C.R.
,~
A reproduce the agreement as it is which reads as follows:
"I. Maharashtra can use for their beneficial use all waters
up to Paithan dam site on the Godavari and up to
Siddheswar dam site on the Puma.
B II. (i) From the waters in the area of the Godavari basin
below Paithan dam site on the Godavari and below
Siddheswar dam site on the Puma and below Nizamsagar
dam site on the Manjira and up to Pochampad dam site
on the Godavari, Maharashtra can utilize waters not
c exceeding 60 TMC for new Projects including any
additional use over and above the present sanctioned or
cleared utilization, as the case may be.
(ii) Andhra Pradesh can go ahead with building its
D Pochampad Project with F.R.L.+1091' and M.W.L. +1093'
and is free to utilize all the balance waters up to
Pochampad dam site in any manner it chooses for its
beneficial use. Maharashtra will take necessary action to
acquire any land or structures that may be submerged
under Pochampad Project and Andhra Pradesh agrees to
E
bear the cost of acquisition, the cost of rehabilitation of the
~displaced families and the cost of constru~tion of some
bridges and roads that may become necessary.
Maharashtra also agrees to the submergence of the river
and stream beds.
F
Ill. (i) In the Manjira sub-basin above Nizamsagar dam site,
Maharashtra can utilize waters not exceeding 22 TMC for
new projects including any additional use over and above
the present sanctioned or cleared utilization as the case
G may be.
(ii) Andhra Pradesh can withdraw 4 TMC for drinking water
supply to Hyderabad city from their proposed Singur
Project on the Manjira.
H
STATE OF ANDHRA PRADESH v. STATE OF 179
MAHARASHTRA & ORS. [R.M. LODHA, J.]
(iii) Andhra Pradesh can construct Singur Project with a A
storage capacity of 30 TMC. Andhra Pradesh can also
use 58 TMC under Nizamsagar Project.
(IV) Maharashtra concurs with the agreement arrived at
between the States of Andhra Pradesh and Karnataka in
B
regard to the use proposed by Karnataka in the Manjira
sub-basin upsf{eam of Nizamsagar dam site.
V. Maharashtra and Andhra Pradesh will be free to use
additional quantity of 300 TMC of water each below
Pochampad dam site for new Projects. c
VI. Maharashtra and Andhra Pradesh agree in principle to
the taking up of the lnchampalli Project with F.R.L. as
commonly agreed to by the interested States, viz.,
Maharashtra, Andhra Pradesh and Madhya Pradesh. D
VII. Maharashtra and Andhra Pradesh agree to take up the
following Joint Projects at the appropriate time with agreed
utilizations:
a). Lendi Project E
... b). Lower Penganga Project.
c). Pranahita Project
and to set up joint committees for this purpose. F
VII I. The States of Maharashtra and Andhra Pradesh agree
that this agreement will be furnished to the Government of
India and also be filed before the Godavari Water Disputes
Tribunal at the appropriate time."
G
32. The above agreement was followed by another
agreement dated 19.12.1975 which was entered into between
all the five riparian states, including Andhra Pradesh and
Maharashtra. Both these agreements were entered into during
the pendency of water disputes before the Tribunal. For proper H
180 SUPREME COURT REPORTS (2013] 2 S.C.R.
A understanding of the controversy, it is necessary to notice the ..
historical background of the water disputes which were referred
to the Tribunal for adjudication. In 1951, a memorandum of
agreement allocating the flows of river basin among the
erstwhile states of Bombay, Hyderabad, Madras and Madhya
B Pradesh was drawn up. In the course of time, the state of
Bombay became State of Maharashtra and State of Hyderabad
became state of Andhra Pradesh. Godavari basin underwent
extensive territorial changes by 1956. The states of
Maharashtra, Mysore, Madhya Pradesh and Andhra Pradesh
c became the riparian states. The state of Orissa continued to
be a riparian state as before. Though state of Orissa was one
of the riparian states but it was not part of 1951 agreement.
By 1960, the five riparian states, namely, the states of
Maharashtra, Mysore, Madhya Pradesh, Andhra Pradesh and
Orissa proposed important schemes for the development of
0
water resources and there were disputes between them relating
to the utilization of the waters of Godavari river system. On ·
01.05.1961, the Central Government appointed Krishna-
GodavariCommission ("Commission"). The Commission found
that without further data it was not possible to determine the
E dependable flow accurately. The Commission, inter alia,
observed that the supplies available in the upper part of
Godavari basin (G-1 to G-5 sub-basins) were inadequate to _
meet the demands of the projects put forward by the state
governments. However, the supplies available in the lower part
F of the Godavari basin (G· 7 to G-12 sub-basins) were in excess
of the demands and, accordingly, the Commission suggested
the diversion of surplus waters of the river Godavari into the
Krishna river. In January 1962, the Mysore government applied
to the central government for reference of the water dispute to
G a tribunal. In March 1963, the Union Minister for Irrigation and
Power echoed the sentiments of some of the riparian states
doubting the validity of the 1951 agreement in Lok Sabha.
Action was taken on the recommendations of the Commission
but no agreed formula was arrived at despite the fact that central
H government tried to settle the dispute by negotiations. Several
STATE OF ANDHRA PRADESH v. STATE OF 181
MAHARASHTRA & ORS. [R.M. LODHA, J.]
inter-state conferences were held but no solution could fructify. A
Fresh applications for reference of the disputes were made by
Maharashtra, Mysore, Orissa and Madhya Pradesh in 1968.
Eventually on 10.04.1969, the central government constituted
the Tribunal and referred to the Tribunal for adjudication the
water dispute regarding the inter-Stale Godavari river and river B
valley thereof. On 18.07.1970, the central government at the
request of Maharashtra referred to the Tribunal the dispute
concerning the submergence of its territories by the
Pochampad, lnchampalli, Swarna and Suddavagu projects of
Andhra Pradesh. c
33. Before the Tribunal, Maharashtra prayed, inter alia, for
a declaration that the 1951 agreement was void ab initio and/
or had ceased to be operative and allocation of the equitable
shares of the states in the dependable flow of the Godavari
basin. Andhra Pradesh prayed for declaration that 1951 D
agreement was valid and binding upon the party states and for
suitable directions for implementation of the agreement. In case
the 1951 agreement was held to be not binding, Andhra
Pradesh prayed for, inter alia, a direction that a full Godavari
(Pochampad) Project, as envisaged by the erstwhile Hyderabad E
government, be allowed to be proceeded with without any
restraint and an injunction restraining Maharashtra from utilizing
Godavari waters at Jayakwadi or any other place above
Pochampad in a manner detrimental to the full scope of the
aforesaid project and injunction restraining Maharashtra and F
Mysore from undertaking any new schemes in Manjra above
Nizamsagar.
34. As noted above, during the pendency of disputes
before the Tribunal, the riparian states entered into bilateral and G
multi-lateral agreements which were endorsed by the Tribunal
in its award and based its decision on these agreements. The
relevant agreements for the present purpose are the
agreements dated 06.10.1975 and 19.12.1975.
35. The Tribunal in Chapter IV of the award has noted that H
182 SUP.REME COURT REPORTS [2013) 2 S.C.R.
A the entire area drained by the river and its tributaries is called
river basin. The expressions "Godavari basin", "Godavari river
basin" and "Godavari drainage basin" in the award have been
explained to mean the entire area drained by the Godavari river
and its tributaries. The Tribunal noted the diverse agreements
B entered into between riparian states including the agreement
between Maharashtra and Andhra Pradesh dated 06.10.1975
and the agreement dated 19.12.1975 between Karnataka,
Maharashtra, Madhya Pradesh, Orissa and Andhra Pradesh,
received them in evidence and held that by these agreements
c the states have adjusted their claims regarding utilization of
waters of Godavari river and its tributaries and agreed to the
sanction and clearance of the projects for the utilization of the
waters of the Godavari river and its tributaries. With reference
to the agreement dated 19.12.1975 to which all the five states
were parties and the agreement dated 06.10.1975, the Tribunal
0
observed that the entire waters of sub-basin G-2 and the waters
of sub-basin G-1 up to Paithan dam site and the waters of sub-
basin G-3 up to Siddheswar dam site were allotted to
Maharashtra and Maharashtra was further allowed the use of
the waters of the Godavari basin not exceeding 60 TMC below
E Paithan dam site on the Godavari river and below Siddheswar
dam site on the Puma river and below Nizamsagar dam site
on the Manjra river and up to Pochampad dam site on the
Godavari river. Having regard to the peculiarities of the
Godavari river and river basin, the Tribunal found no objection
F in allotting to one or more state or states water up to defined
points or project sites or within certain sub-basins or reaches
of the river. The Tribunal noted that every agreement need not
apportion or allocate all waters of river and river basin.
G 36. It appears that on 16.07.1979 at the fag end of the
proceedings before the Tribunal, counsel for Maharashtra
contended that until a comprehensive agreement was signed
by all the parties there was no complete allocation of the entire
waters of the Godavari river and objected to the Tribunal's
H proceeding to give its decision. However, counsel for
STATE OF ANDHRA PRADESH v. STATE OF 183
MAHARASHTRA & ORS. [R.M. LODHA, J.]
Maharashtra admitted before the Tribunal that the agreements A
to which Maharashtra is a party would be binding on it.
Accordingly, the Tribunal observed that there is no dispute that
Maharashtra is bound by agreements to which it is a party,
namely, the agreement dated 19.12.1975 and bilateral
agreement dated 06.10.1975 between Maharashtra and B
Andhra Pradesh.
37. The Tribunal made it abundantly clear in the award that
it was dividing the waters of the river Godavari on the basis of
the agreements already entered into between the party states,
the agreements filed by the parties have apportioned waters c
of Godavari river between them.
38. While giving decision on issue ·no. IV(b), inter alia,
relating to submergence of the territories of Maharashtra by
Pochampad project, the Tribunal held that the agreements D
between the States have settled all questions and disputes.
With regard to issue no. IV(c), whether it is lawful for the Andhra
Pradesh to_ execute project likely to submerge the territories of
other states without their prior consent, the Tribunal said that
generally any project of Andhra Ptadesh involving submergence E
-
of the territory of other states was not permissible without the
prior consent of the affected states. As regards issue no. VI,
"to what relief are the parties entitled?" the Tribunal held that
the agreements filed by the parties and its final order provide
for all the reliefs to which the parties are entitled. F
39. Clause V of the final order (in the award) passed by
the Tribunal reads as follows:
"The following agreements so far as they relate to the
Godavari river and Godavari river basin be observed and G
carried out:-
A. Agreement dated the 19th December, 1975 between
the States of Karnataka, Maharashtra, Madhya Pradesh,
0Tissa and Andhra Pradesh annexed hereto and marked
H
184 SUPREME COURT REPORTS [2013] 2 S.C.R.
A Annexure "A" agreeing to the clearance of projects for the
utilization of waters of the Godavari river and its tributaries
in accordance with:-
(a) xxx xxx xxx
B (b) Agreement between the States of
Maharashtra and Andhra Pradesh on the 6th Oct.
1975-Annexure II.
(c) xxx xxx xxx
c (d) xxx xxx
40. Clause VI I of the final order (in the award) provides that
the right or power or authority of any state to regulate within its
boundaries the use of water, or to enjoy the benefit of waters
D within that state in a manner not inconsistent with the order of
the Tribunal shall not be impaired.
41. Thus, from the award, it is clear that the Tribunal put
its seal of approval and endorsed the agreement dated
E 06.10.1975 between Maharashtra and Andhra Pradesh and the
agreement dated 19.12.1975 between Karnataka,
Maharashtra, Madhya Pradesh, Orissa and Andhra Pradesh
and ordered that the allocation of waters in the Godavari river ...
and Godavari river basin between Maharashtra and Andhra
F Pradesh and the clearance of projects for utilization of waters
of the Godavari and its tributaries shall be observed and carried
out as per the agreements.
42. After the award was passed by the Tribunal on
27 .11.1979 under Section 5(2) of the 1956 Act the reference
G was filed by the central government on 25.02.1980 seeking
explanation and guidance on few aspects. One of them was
that the particulars of existing/sanctioned or cleared schemes
have not been given nor the utilizations through them have been
quantified anywhere in the final order in light of the agreements
H between the parties which referred to utilizations through
STATE OF ANDHRA PRADESH v. STATE OF 185
MAHARASHTRA & ORS. [R.M. LODHA, J.]
'existing/sanctioned or cleared schemes. The central A
government requested the ;fribunal to consider the desirability •·
of incorporating necessary details in its final order. Andhra
Pradesh and Karnataka supported the reference by the central
government but Maharashtra, Madhya Pradesh and Orissa
opposed it. The Tribunal clarified in the further award dated B
07.07.1980 under Section 5(3) of the 1956 Act by observing
that its decision was based on the agreements of the parties
annexed to the final order (award) dated 27.11.1979. The
Tribunal observed that none of the parties pleaded before it that
these agreements should be so modified as to include c
particulars of the existing/sanctioned or cleared schemes of the
utilizations thereunder. The Tribunal accordingly held that it was
not necessary to include these particulars for the decision.
43. The other aspect on which the central government
sought clarification was, "with a view to ensuring that the states, D
mainly, the upper states, do not exceed the stipulated
allocations it may be necessary to obtain data regarding
storages and utilization from one another each year. Also it
would be desirable to provide for inspection of sites in a basin.
state by the other basin states. The Tribunal may kindly consider E
the desirability of providing some enabling clause in their final
order to this effect so that there is no difficulty at a later stage
for any state to obtain the data from the other state when the
latter shows reluctance to do so".
F
44. Maharashtra opposed any clarification on the above
point while Andhra Pradesh supported it. The Tribunal observed
that as supply of such data by one state to another was not
incorporated in the agreements, it cannot be done now at this
stage. The Tribunal expected that there would be mutual co- G
operation between the states and each state will supply such
data to the other state as and when required.
45. The award dated 27.11.1979 and the further award
dated 07.07.1980 leave no manner of doubt that the Tribunal
has determined the distribution of water in the Godavari river H
186 SUPREME COURT REPORTS (2013] 2 S.C.R.
A on the basis of the agreements of the parties. While dcling so,
the Tribunal was alive to the position that in deciding water
disputes in inter-state river, the rule of equitable distribution of
the benefits of the river applies so that each state gets a fair
share of the water of the common river but there is no rigid
B formula for the equitable distribution of waters of a river because
each river system has its peculiarities. Although the Tribunal did
not determine yield of the Godavari river in the award, but the
same became unnecessary as the states agreed that the
Tribunal should base its decision on the agreements of the
c parties. In the absence of any determination of the yield of the
Godavari river in the award, it cannot be said that the Tribunal
has not apportioned the Godavari river water between the
riparian states. Can it be said that the two states, Andhra
Pradesh and Maharashtra, were not alive to the peculiar
features of Godavari river? We do not think so. Andhra Pradesh
0
and Maharashtra must have had regard to the peculiar features
of Godavari basin - the main Godavari runs in Maharashtra,
forms a common boundary between Maharashtra and Andhra
Pradesh, runs in Andhra Pradesh again forms a common
boundary between Andhra Pradesh and Maharashtra and
E thereafter forms a common boundary between Andhra Pradesh
and Madhya Pradesh and finally runs in And/lra Pradesh -when
they entered into the agreement dated 06.10.1975.
Maharashtra has been given right to use for their beneficial use
all waters up to Paithan dam site on the Godavari, up to
F Siddheswar dam site on the Purna. This is clear from Clause
I of the agreement dated 06.10.1975.
46. Clause II of the agreement is in two parts. Clause ll(i)
provides that from the waters in the area of the Godavari basin
-
G below Paithan dam site on the Godavari and below Siddheswar
dam site on the Purna and below Nizamsagar dam site on the
Manjra and up to Pochampad dam site on the Godavari,
Maharashtra can utilize waters not exceeding 60 TMC for new
projects, including any additional use over and above the
H present sanctioned or cleared utilization, as the case may be.
STATE OF ANDHRA PRADESH v. STATE OF 187
MAHARASHTRA & ORS. [R.M. LODHA, J.]
47. Clause ll(ii) enables Andhra Pradesh to build A
Pochampad project with FRL+1091 feet and MWL+1093 feet.
Andhra Pradesh under this Clause has been given liberty to
utilize all the balance waters up to Pochampad dam site in any
manner it chooses for its beneficial use. The debate has mainly
centered around these two Clauses, namely, Clause ll(i) and B
Clause ll(ii). The interpretation to these Clauses by the two
states differs. Andhra Pradesh says that utilization of waters not
exceeding 60 TMC for new projects by Maharashtra under
Clause II (i) is from water flowing through the river from the
catchment area while Maharashtra says that this Clause c
entitles it to utilize waters of the river Godavari up to
Pochampad site which may be the water flowing through the
river from the catchment area or the water from within the water
storage or pondage of the dam. Such utilization is not confined
to the water flowing through the river from the catchment area. 0
We have to ascertain the meaning of the expressions "from the
waters in the area of the Godavari basin" and "up to
Pochampad dam site". We have to also see whether the
agreement dated 06.10.1975 has distributed the waters in
Godavari basin between the two party states on a dichotomy
of sources of waters namely, water spread area of dam/storage E
and the flowing waters.
48. The words "from the waters in the area of Godavari
basin" in Clause ll(i) have two significant expressions, one,
'Godavari basin' and the other, 'in the area of. The expression F
"Godavari basin" along with the other two expressions
"Godavari river basin" and "Godavari drainage basin" in the
award have been explained to mean the entire area drained
by the Godavari river and its tributaries. The Tribunal rightly
explained so because the general meaning of river basin G
means entire area drained by the river and its tributaries. The
question is, whether the parties to the agreement dated
06.10.1975 by use of the words "from the waters in the area of
the Godavari basin" intended to mean the waters flowing in the
Godavari river from the catchment area below the three dam H
188 SUPREME COURT REPORTS [2013] 2 S.C.R.
A sites mentioned in Clause ll(i) and up to Pochampad dam site
on the Godavari or used these words to include all waters -
flowing from the catchment area as well as the water spread
area of the Pochampad dam which fell in the territory of
Maharashtra. If what Andhra Pradesh contends that 60 TMC
B water is allowed to Maharashtra only from the flowing waters
in Godavari basin is right then the agreement would have used
the words "from the waters of Godavari basin" and not "from
the waters in the area of Godavari basin". By use .of the words
"from the waters in the area of Godavari basin" in
c contradistinction to "from the waters of Godavari basin", the
parties have intended to mean waters in the geographical area
of Godavari basin and not confined to flowing waters of
Godavari basin.
49. We are in agreement with Mr. T.R. Andhyarujina that
D if the intention of Andhra Pradesh was that Maharashtra should
not utilize the waters of Pochampad reservoir in its territory,
such limitation would have been provided expressly. When an
agreement is entered into between two or more states, they
have assistance of competent legal and technical minds
E available with them. The states do not have lack of drafting
ability. Such agreement is drafted by trained' minds. An
agreement such as inter-state water sharing agreement would
not leave its interpretation to chance. In our view, in the absence
of any express limitation, except quantity, on the use of water
F by Maharashtra .within its territory in Clause ll(i), the
interpretation put by Andhra Pradesh to this Clause cannot be
accepted.
50. Moreover, apportionment of the Godavari river was
G agreed to by the two states in a typical situation in as much as
building of Pochampad project by Andhra Pradesh with
FRL +1091 feet and MWL+1093 feet involved submergence of
certain areas in the State of Maharashtra. But for Maharashtra's
consent to submergence of its area, Andhra Pradesh could not
have built Pochampad dam with capacity of 112 TMC; rather
H
STATE OF ANDHRA PRADESH v. STATE OF 189
MAHARASHTRA & ORS. [R.M. LODHA, J.]
its capacity would have been limited to 40 TMC. Seen thus, in A
the absence of any express clause, it cannot be said that
Maharashtra was given right to utilize waters not exceeding 60
TMC for new projects from the flowing waters of the Godavari
basin alone. We are not persuaded to accept the submission
of Mr. K. Parasaran that the apportionment of waters is founded B
on dichotomy of two sources of waters. On careful reading of
Clause ll(ii) we find that this Clause gives right to Andhra
Pradesh to utilize all the balance waters up to Pochampad dam
site in any manner it chooses for its beneficial use. The use of
the expression, "all the balance waters up to Pochampad dam c
site" signifies that parties agreed that on utilization of waters
not exceeding 60 TMC for new projects by Maharashtra from
the waters in the geographical area of the Godavari basin, all
the balance waters up to Pochampad dam site is left for
utilization by Andhra Pradesh for its beneficial use. 0
51. The contention of Mr. K. Parasaran, learned senior
counsel for Andhra Pradesh that up to Pochampad dam site
in Clause ll(i) and Clause II (ii) means up to the spread area of
Pochampad dam and not the concrete structure of the dam
does not appeal to us. The common meaning of the word "dam" E
is the structure across the stream, including the abutment on
the sides. The dam is an obstruction to the natural flow of the
water of a river or a barrier to prevent the flowing water. A dam
is built across a water course to confine and keep back flowing
water. In Words and Phrases; Permanent Edition 11, "dam· is F
explained with reference to decision in Morton v. Oregon Short
Line Ry. Co. 2 as follows:
"A "dam" is a structure composed of wood, earth, or other
material, erected in and usually extending across the entire G
channel at right angles to the thread of the stream, and
intended to retard the flow of water by the barrier, or tG
retain it within the obstruction."
~. 87 P. 151, 153, 48 Or. 444. H
190 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 51.1. The same book with reference to Colwell v. May's
Landing Water Power Co., 3 explains the word "dam" as follows:
"The word "dam" is used in two different senses. It properly
means a structure raised to obstruct the flow of water in a
river, but by well-settled usage it is often applied to
B
designate the pond of water created by its obstruction. The
word is used in this conventional sense in some statutes,
and it is evidently used in this sense in a statute giving
power to raise the "dam and water-works" to a height
mentioned."
c
51.2. In the Indian Standard Glossary of Terms Relating To River
Valley Projects, Part 8, Dams and Dam Sections [First
Revision], paragraph 2.27 explains "dam" as follows :
"A barrier constructed across a river or natural
D
watercourse for the purpose of: (a) impounding water or
creating reservoir; (b) diverting water there from into a
conduit or channel for power generation and or irrigation
purpose; (c) creating a head which can be used for
generation of power; (d) improving river navigability; (e)
E
retention of debris; (f) flood control; (g) domestic, municipal
and ind uses; (h) preservation of wild life and pisciculture,
Q) recreation, etc."
51.3. Glossary of Irrigation and Hydro-Electric Terms and
F Standard Notations used in India, Third Edition, published by
Central B~ard of Irrigation and Power, explains "dam• as under:
"Dam : A structure erected to impound water in a reservoir
or to create hydraulic head."
G 51.4. "Reservoir'' is defined in the said publication as follows :
"Reservoir : A pond, lake, or basin, either natural or
artificial, for the storage, regulation and control of water''
H 3. 19 N.J. Eq. (4 C.E. Green) 245, 248.
STATE OF ANDHRA PRADESH v. STATE OF 191
MAHARASHTRA & ORS. [R.M. LODHA, J.]
51.5. "Introduction to dams", Publication No. 220 by Central A
Board of Irrigation and Power under the Chapter "Dam Sites
- Large Dams" with reference to book by J. Cotillon explains
the position with regard to dam sites as under:
"A dam is a structure meant to retain water. Only hydraulic B
dams are dealt with in this paper; when it is question of
other dams, it will be specified "Tailing dam", "industrial
waste dam".
1. Generally, this retention takes place in a natural
depression. But it can also take place in an artificial C
enclosure created, for instance, by embankments set-up
along the banks of a river.
Moreover, the enclosure can be fully artificial: this is the
case of a basin filled by pumping, created on a plateau D
and closed by a ring embankment; in this case, we speak
about an "embankment" rather than about a "dam".
Generally, the dam is set-up on a river.
But it can be constructed in a dead valley where only a E
trickle of water flows; the reservoir is then filled by pumping
and/or by gravity diversions.
It can also close a pass on the perimeter of a reservoir, it
is then called "secondary dam" as opposed to "main dam"
F
which closes the natural depression (living valley or dead
valley).
3. The dam retains generally the upstream water, its
purpose may be also to retain the downstream water for
a few hours. That is, an exceptional tidal wave (anti-storm G
dam)."
51.6. In the same book under the Chapter "Role of Dams-
Purpose and Symbols", in paragraph 2.1.2 it is stated as under:
H
- .-·=---
192 SUPREME COURT REPORTS [2013] 2 S.C.R.
A "2.1.2 Creation of a Reservoir
The objective consists in altering the natural or disturbed
condition of the river by acting upon the filling or the
draining of the reservoir in order to fulfil the following
objectives:
8
• to cut down the floods
• to raise low waters
• to guarantee a discharge higher than that of the low
c waters for all the cases described in 11 and 12.
• to reduce the disturbances in the regime of the river
upstream: a reservoir is necessary in the immediate
downstream of a leading hydroelectric plant in order to
D restore the continuity and the regularity of the discharge;
such a dam or reservoir is then called "dam" or
"compensating reservoir".
52. It is sound principle of interpretation that if an
E expression has been used in an agreement at more than one
place, such expression must bear the same meaning at all
places unless expressed otherwise. When the agreement dated
06.10.1975 is read carefully, it would be seen that in Clause
V, it is provided that Maharashtra and Andhra Pradesh will be
F free to use additional quantity of 300 TMC of water each below
Pochampad dam site for new projects. If the meaning of
Pochampad dam site is given meaning as spread area of
Pochampad dam, Clause V does not make sense and leads
to absurdity. Clause V becomes workable only when
Pochampad dam site is understood to mean concrete structure
G of the dam. We have no doubt that the dam site in the
agreement has the same meaning in all clauses and it means
the concrete structure of the dam. In our view, therefore, Clause
ll(i) that provides that Maharashtra can utilize waters not
exceeding 60 TMC for new projects from the waters in the area
H
STATE OF ANDHRA PRADESH v. STATE OF 193
MAHARASHTRA & ORS. [R.M. LODHA, J.]
of the Godavari basin below three dam sites noted therein and A
up to Pochampad dam site on the Godavari gives right to
Maharashtra to utilize waters of the Godavari river up to
Pochampad site which may be water flowing through the river
from the catchment area or the water spread area. Such
utilization is not confined to the water flowing through the river B
from the catchment area. The thrust of the parties in Clause ll(i)
and the essence of this clause is to put a cap on the right of
Maharashtra to utilize waters of Godavari river below the three
dams mentioned therein up to Pochampad dam site to the
extent of 60 TMC for new projects and in no case exceeding c
that limit. There is no demarcation made that the utilization of
waters not exceeding 60 TMC for new projects by Maharashtra
shall be from the flowing water. While reaching the agreement,
the two states must have sought to equalize the burden and
benefits. We do not think that we can read such demarcation 0
impliedly in Clause ll(i) as contended by Andhra Pradesh.
53. As a matter of fact, Andhra Pradesh understood the
location of Pochampad dam site at particular latitude and
longitude and not the reservoir. This also indicates that by
Pochampad dam site what is meant in the agreement dated E
06.10.1975 is the structure and not the spread area.
54. In Orient Papers & Industries Ltd. 1, this Court was
concerned with provisions of Orissa Irrigation Act, 1959,
particularly, Sections 4(d) and 28 thereof. While dealing with F
the argument that the irrigation work as defined under Section
4(d) would not cover the area in which the reservoir lies, but
only a reservoir, tank, anicuts, dams, weirs, canals, barrages,
channels, pipes, wells, tubewells and artesian wells constructed,
maintained or controlled by the state or a local authority, this G
Court referred to Section 4(d) and observed as follows :
"14. Irrigation work is defined under Section 4(d) of the Act
as to include all land occupied by the Government for the
purposa of reservoir, tanks, etc., and other structures
occupied by or on behalf of the State Government on such H
. : .:
194 SUPREME COURT REPORTS [2013] 2 S.C.R.
land. A reservoir cannot be understood merely to be a
means to hold water in a stream. It is only by controlling
the flowing stream in an area that water can be stored in
a reservoir. Viewed thus, irrigation work would include land
used for such purpose. In this case the finding recorded
B by the authorities is in accord with this view. "Reservoir"
may not necessarily mean only the constructed part of the
land but includes the area where the water is held by a
dam constructed by the Government; then if from such a
point falling within that area water is drawn it must be held
c that the appellant is liable to pay the water rate. Therefore,
there is no substance in the contention urged on behalf of
the appellant that the point at which the water is drawn by
the appellant does not lie within the reservoir area or water
is not drawn from a government source or a water work.
Under Section 28 of the Act, the Irrigation Officer is
D
empowered to fix the compulsory basic water rate for
supply of water from a government source as distinguished
from a private source."
54.1. In Orient Papers & Industries Ltd. 1 , this Court did
E hold that reservoir may not necessarily mean only the.
constructed part of the land but includes the area where the
water is held by a dam. This is generally what is understood
by reservoir but, as noted above, we are concerned with the
interpretation of the words "up to dam site" occurring in the
F agreement between the two states which was entered into
when the dispute was already pending before the Tribunal and
Andhra Pradesh was intending to construct Pochampad dam
with 112 TMC that would submerge certain areas of
Maharashtra. Therefore, these words have to be understood in
G the context of the agreement and terms thereof. In the overall
context it is very difficult to hold that dam site is given meaning
in the agreement as spread area of dam. Thus, in fact situation
of the present case, Orient Papers & Industries Ltd. 1 has no
application.
H
STATE OF ANDHRA PRADESH v. STATE OF 195
MAHARASHTRA & ORS. [R.M. LODHA, J.]
55. Generally, there cannot be a dam within a dam. This A
is also true that generally there cannot be lake/pondage of a
project of one state within the lake/pondage of the project of
another state. But we are concerned with specific water sharing
agreement between the two states which has been endorsed
by the Tribunal. The parties have not brought any oral expert B
engineering and hydrographic testimony. In the circumstances,
we have to see extent of rights and obligations created by virtue
of the agreement between the two states and the award given
by the Tribunal. Like any other agreement, the terms of inter-
state agreement ordinarily must be found out from the actual c
words employed therein. We have already analysed the
agreement dated 06.10.1975 above and we find merit in the
submission made on behalf of Maharashtra that in Clause ll(i),
there is no limitation imposed upon Maharashtra to utilize the
waters of the Godavari river from the water flowing through the 0
river from the catchment area only in its territory. What
Maharashtra has to ensure is that it does not utilize waters of
Godavari river in its territory exceeding 60 TMC for new projects
and it does not interfere with natural and continuous flow of water
into Pochampad reservoir.
E
56. Clause VII and Clause lll(C) of the final order (award)
passed by the Tribunal also support the view which we have
taken. Clause VII provides that right or power or authority of any
state to regulate within its boundaries the use of water, or to
enjoy the benefit of waters within that state in a manner not F
inconsistent with the order of the Tribunal shall not be impaired.
Clause lll{C) says that the water stored in any reservoir across
any stream of the Godavari river system shall not by itself be
reckoned as depletion of the water of the stream except to the
extent of the losses of water from evaporation and other natural G
causes from such reservoir.
57. Alternatively, even if we accept the stand of Andhra •.
Pradesh that utilization of waters to the extent of 60 TMC for
new projects by Maharashtra from below the three dam sites
H
196 SUPREME COURT REPORTS (2013] 2 S.C.R.
A mentioned in Clause ll(i) up to Pochampad dam site can be
only from water flowing through the river from the catchment
area and not from the pondage/water spread area of
Pochampad dam, the question that arises for consideration is,
whether Andhra Pradesh is entitled to injunction against
B Maharashtra from setting up Babhali barrage in the suit filed
under Article 131 of the Constitution.
58. The US Supreme Court in State of Washington v.
State of Oregon< has exposited two principles, one, a contest
between the states is to be settled in the large and ample way
C that alone becomes the dignity of litigants concerned and two,
burden of proof falls heavily on complainant in a suit for
injunction when states are involved. The above principles are
sound principles in law and, in our view, there is no reason for
not applying them to a suit of this nature. We are of the
D considered view that in a suit for injunction filed by one state
against the other state, the burden on the complaining state is
much greater than that generally required to be borne by one
seeking an injunction in a suit between private parties. The
complaining state has to establish that threatened invasion of
E rights is substantial and of a serious magnitude. In the matter
between states, injunction would not follow because there is
infraction of some rights of the complaining state but a case of
high equity must be made out that moves the conscience of the
Court in granting injunction. We shall consider whether burden
F of that degree has been discharged by Andhra Pradesh on the
charge of wrong doing by Maharashtra in construction of
Babhali barrage and a case of substantial injury of a serious
magnitude and high equity made out.
G 59. According to Andhra Pradesh, Pochampad project has
three sources of contribution of its storage (i) from the
Maharashtra territory of Godavari basin below Paithan dam, (ii)
contribution from Manjra tributary and (iii) from the catchment
within the state of Andhra Pradesh. It is the case of Andhra
H 4. 297 us 517.
STATE OF ANDHRA PRADESH v. STATE OF 197
MAHARASHTRA & ORS. [R.M. LODHA, J.]
Pradesh that invasion of water spread area by construction of A
Babhali barrage would significantly deprive inhaqitants of the
Adilabad, Nizamabad, Karimnagar, Warangal, Nalgonda,
Khammam and Medak districts of having water for irrigation ·
and drinking purposes. Moreover, the construction of Babhali
barrage prejudicially affects Andhra Pradesh (a) having regard B
to the FRL of Pochampad dam and the height of Babhali
barrage as water would confine its level, there will be reverse
flow up to 65 TMC (b) Maharashtra will be drawing water from
Babhali barrage with the aid of pump sets installed along 58
km length and it will be enabled to draw more than 2.74 TMC, c
thereby exceeding its entitlement of 60 TMC; (c) Maharashtra
will utilize the non-monsoon flows to the fullest extent even if the
75% dependability, as pleaded by Maharashtra, is only 2.73
TMC, still Maharashtra is in a position to appropriate more than
2.74 TMC in 74% of the year and (d) Maharashtra will utilize 0
the waters from Pochampad storage during the remaining 25%
of the deficit years where non-monsoon yield is less than 2.74
TMC. Andhra Pradesh complains that as per the list of major,
medium and minor projects sanctioned in Maharashtra after
06.10.1975 the gross utilization by Maharashtra of all the
E
projects will be 63.018 TMC. Andhra Pradesh in this connection
relies upon the additional affidavit filed by the Maharashtra.
60. Andhra Pradesh further complains that in a given year
in the absence of adequate contribution from the Maharashtra
territory of Godavari basin, Pochampad dam may have F
contribution from the other two sources, namely, contribution
from Manjra territory and from the catchment within the state of
Andhra Pradesh which would result in the storage of
Pochampad into the territory of Maharashtra. Any construction
within submergence area in Maharashtra and appropriation of G
water from it would result in Maharashtra drawing from a source
pver which it has no right.
61. on the other hanc;I, Maharashtra says that it was using
water within its territory which is now part of Pochampad
H
198 SUPREME COURT REPORTS [2013] 2 $.C.R.
A storage prior to 1975 by lift irrigation schemes. Babhali barrag~ :
construction is partly to establish the requirements of these lift
irrigation schemes. It is stated that there were 13 lift irrigation
schemes which were existing, sanctioned and cleared on the
Godavari river up to the present Babhali barrage and they were
B utilizing about 2.6 TMC. Out of these 13 lift irrigation schemes;
6 were within the submergence of Pochampad. These
schemes were operated successfully for seven to ten years
from its commencement but they were not fully operated later
due to non-availability of sufficient water in the river. After the
c agreement dated 06.10.1975, Maharashtra had planned for the
Babhali barrage on the Godavari river within its territory in 1995.
Babhali barrage was planned for a life saving irrigation of 7995
hectares and drinking water for 58 villages and three towns.
Maharashtra denies that water spread area of the Pochampad
dam is 55 km within the territory of Maharashtra. Maharashtra
0
asserts that the water spread area is not beyond 32 km within
Maharashtra territory. Babhali barrage project requires 2.74
TMC of water out of the allocation of 60 TMC for new projects
under the agreement. The maximum quantity of water which
E Maharashtra can lift during the period from 28th October till the
end of June next year is only 2.74 TMC of which only 0.6 TMC
is from the common submergence of Pochampad reservoir and
Babhali barrage. Maharashtra has denied the allegation of
Andhra Pradesh that it will be drawing water from the Babhali
barrage with the aid of pump sets installed along 58 km length
F and it will be enabled to draw more than 2.74 TMC and thereby
exceeding its entitlement of 60 TMC.
62. Maharashtra has suggested without prejudice to its
rights and contentions that it is willing to reimburse 0.6 TMC of
G water to Andhra Pradesh by releasing the same on 1st March
every year. Maharashtra has submitted that the operation of
Babhali barrage can be supervised by a committee consisting
of representatives of Central Water Commission and of states
of Andhra Pradesh and Maharashtra. This committee will
H supervise that the gates are lowered on the 28th October each
. .(
STATE OF ANDHRA PRADESH v. STATE OF 199
MAHARASHTRA & ORS. [R.M. LODHA, J.]
year and will remain in operation till the end of June next year A
and that on the 1st of March the gates will be lifted to allow the
flow of water of 0.6 TMC to Andhra Pradesh. Thus, even 0.6
TMC will not be made use of by Maharashtra.
63. As regards lift irrigation schemes, Maharashtra has
B
averred in paragraph 12(ii) of the amended written statement
filed on 30.01.2008 as under:
"Below Vishnupuri Barrage on the main Godavari river and
the State border with Andhra Pradesh there is a vast area
and population of Nanded District in Maharashtra on the c
both the banks of Godavari over a stretch of 97 KMs. which
., is in dire need of irrigation and drinking water supply to
58 villages. In view of this acute water need and no other
alternate resources available, lift irrigation schemes had
been constructed by Maharashtra during 1972 to 1975 for D
lifting water from the main Godavari river for drinking water
and some Rabi irrigation. No objection was raised to such
scheme by Andhra Pradesh even though the water was
extracted from the submergence of the Pochampad project
in Maharashtra."
E
63.1. Then in para 13, the following averment is made:
"These Lift Irrigation schemes after construction were
operating in initial years with reasonable satisfaction. The
lifting of water at these sites were planned for the fair
F
weather season Rabi and hot-weather irrigation and
drinking water supply for the entire year. Subsequently,
difficulties were experienced in getting the needed river
supplies in an assured manner from these fluctuating daily
river flows. There was acute agitation and pressure from
the local people of 58 villages to provide them with a G
regulating scheme to get assured supply of water for
irrigation and drinking water according to their needs. To
enable this requirement, it was decided in 1995 to create
a small pondage at Babhali to assure and regulate the
needed supplies." H
200 SUPREME COURT REPORTS [2013] 2 S.C.R.
A 63.2. In paragraph 14, it is averred as under:
" .......... The gates of Babhali Barrage are therefore
proposed to be kept open during monsoon period upto
latter half of October, as if there is no barrage and lowered
B thereafter to create necessary small pondage in fair-
weather to meet the dire needs in Maharashtra out of the
permitted share of 60 TMC. The Barrage crest level at
Babhali is at river bed level and therefore, there will be no
obstructions to Godavari river flows upto Andhra Pradesh's
C Pochampad dam during monsoon period. The small
pondage at Babhali (2.74 TMC) proposed to be created
during fair-weather is only a negligible fraction of
Pochampad storage of 112 TMC out of which only 0.6
TMC is a common storage. By the middle of December,
D Pochampad storage recedes totally away from
Maharashtra's territory and therefore the pondage at
Babhali during operation does not interfere or encroach
with the Poch am pad storage of Andhra Pradesh ..... "
E 63.3. In paragraph 17 (xiiiA)(iii), (iv),(v)(a),(b),(c) and (d),
Maharashtra has stated as follows:
"17(xiiiA)(iii) After middle of October, the gates at Babhali
Barrage would be lowered to create a small pondage of
F 2.74 TMC by storing the post monsoon or dry weather
Godavari river flows to enable individual farmer's pumps
to lift the water for the basic water supply needs of people
including drinking water on the river banks and to stabilize
and to ensure some Rabi and Hot weather irrigation part
G of which is already in existence by various lift along this
stretch of the Godavari river.
(iv) The overlapping storage of Pochampad and Babhali
when constructed is only to the extent of 0.6 TMC out of
H 112 TMC live storage of Pochampad at FRL+1091
STATE OF ANDHRA PRADESH v. STATE OF 201
MAHARASHTRA & ORS. [R.M. LODHA, J.]
feet(330.56 m.). This 0.6 TMC overlapping small storage A
at the upstream end of Pochampad Reservoir is in any
case going to be silted up very soon making overlapping
storage negligible.
(v) The contention that between Babhali Barrage crest level B
and the river bed level at State border, there is 65 TMC
of Pochampad storage which can be pumped up by
Maharashtra by reserve flow is baseless and without any
substance, because
(a) Maharashtra Government is not installing any C
pumps or constructing any canals at Babhali to lift water,
but only creating a pondage for individual farmers to lift for
their own small irrigation needs.
(b) The Pochampad storage level will not remain at D
Babhali Barrage crest level throughout October to May but
recede to a level lower than Babhali Barrage still level by
end of December when there can be no lifting of water at
all. Therefore, even theoretically, there is no possibility of
a reserve flow into Babhali Barrage after December. E
(c) In the absence of the Babhali Barrage
Maharashtra could have utilized its permitted share of 60
TMC for new projects from this stretch of Godavari river
occupied by Pochampad storage by putting up necessary
capacity pumps in this stretch of Godavari river occupied F
by Pochampad storage to which Andhra Pradesh could
not have objected.
(d) At Babhali Barrage Maharashtra has planned for
life saving irrigation of 7995 ha. and drinking water for 58 G
villages and 3 towns which requires only 2.74 TMC of
water of its 60 TMC share. The entire allegation of using
65 TMC of Pochampad water is baseless because such
quantity cannot be lifted during the period of November to
December when the level reaches the sill level. In the H
202 SUPREME COURT REPORTS [2013] 2 S.C.R.
A present Babhali Barrage scheme the intention is to only
create a small pondage of about 2.74 TMC, which will be
lifted by the individual farmers over a period of about 9
months. 65 TMC would be required to irrigate about 3.5
lakhs ha. which is not available at Babhali site. Moreover,
B for lifting 65 TMC water, a pumping capacity of about
162350 h.p. would be required and to utilize this pumping
capacity about 121.11 MW of electricity will be necessary.
The State of Maharashtra has not planned to install any
such pumps at Babhali."
c 64. Before this Court was moved by filing the present suit,
Andhra Pradesh objected to the Babhali barrage in 2005. As
the dispute could not be resolved by the two states amicably,
the Central Water Commission ('CWC') intervened. In the
meanwhile, a public interest litigation was also filed before this
D Court. One of the prayers therein is for issuance of directions
against Maharashtra to stop the construction of Babhali
barrage and direction to the central government to take
appropriate action to enforce the agreement dated 06.10.1975
reached between the two states.. On 10.04.2006 this Court
E requested the Minister for Water Resources to call for the
meetings of the officers and others from the two states with a
view to resolve the issue and if it becomes necessary, the
Minister may request the Prime Minister to intervene in the
matter.
F
65. On 26.04.2006, the Chairman, CWC convened the
technical committee meeting. Maharashtra on that day made
a presentation highlighting the following facts:
"Storage of Babhali barrage is well within the banks. The
G sill level and FRL of Babhali barrage are 327 m and 338
m respectively and 13 gates of 15 m x 11 m size are
proposed to be installed. The Gross storage of Srirama
Sagar Project and that of Babhali barrage are 112 TMC
and 2.74 TMC respectively and there is a common storage
H of 0.60 TMC which is just 0.54% of the storage of SRSP.
STATE OF ANDHRA PRADESH v. STATE OF 203
MAHARASHTRA & ORS. [R.M. LODHA, J.]
Command area of Babhali barrage is 7995 ha." A
66. On behalf of Andhra Pradesh, it was stated that more
than 50 per cent of the time Pochampad dam has not filled up
to designed capacity and the water proposed to be stored by
Babhali barrage would further reduce its storage which rightfully B
belongs to Andhra Pradesh and Andhra Pradesh cannot agree
to construction of Babhali barrage in the submergence area of
Pochampad dam. In the meeting of 26.04.2006, three
alternative situations emerged which are as under:
1. Maharashtra to give their plan for the utilization of 60 C
TMC of water agreed with A.P. in addition to 42 TMC and
the need for construction of Babhali Barrage.
,,.
2. To ensure that gates are lowered only after Sriram
Sagar dam is filled up to its designed capacity or o
alternately on a date to be mutually agreed by both the
states, which- ever occurs earlier.
3. Possibility of reducing the height of Babhali Barrage to
limit the storage to their minimum requirement during
December to February to be explored by Govt. of E
Maharashtra.
67. Maharashtra agreed to examine the above
suggestions and submit the proposal for consideration in the
next meeting. F
68. On 19.05.2006, the second meeting of the technical
committee under the Chairmanship of the Chairman, CWC was
held. The minutes of the meeting dated 19.05.2006 recorded
as under:
G
"1. The 75% dependable flows at Yelli gauging site was
reported as 1530 MCM (54.03 TMC) considering a
hydrologic year and 78.34 MCM (2.77 TMC) considering
post monsoon months from 28th October to May end.
These figures need to be rechecked and confirmed. H
'· . . ·
204 SUPREME COURT REPORTS (2013] 2 S.C.R.
A 2. Babhali barrage to be constructed with 2.74 TMC
capacity and the gates to be lowered on 28th October. This
proposal was not acceptable to Govt. of Andhra Pradesh
because they maintained that Babhali barrage is an
encroachment into the submergence area of Sri Ram
B Sagar Project (SRSP). They also apprehended that Govt.
of Maharashtra can use waters several times the capacity
of barrage, which will affect the storage of SRSP
adversely.
3. The 2nd proposal given by the Govt. of Maharashtra was
c regarding reduction in the height of the gates of the Babhali
barrage. They have. worked out the minimum requirement
from Babhali barrage considering the requirement for Rabi
crop up to February and drinking water requirement up to
June as 30.84 MCM (1.09 TMC). In addition to this,
D intercepted water of SRSP required to be released from
Babhali Barrage is of the order of 17.00 MCM (0.6 TMC)
and the evaporation losses may be considered of the
order of 0.27 TMC. To meet the above total requirement,
the gross capacity for Babhali barrage has been worked
E out as 1.96 TMC. For this storage, the FRL of Babhali
Barrage as per the Area-Capacity curve submitted by
Govt. of Maharashtra in the meeting is 336.Sm, resulting
in a reduction of the height of the gates by 1.5 m. This
proposal was also not acceptable to Govt. of Andhra
F Pradesh."
68.1. The minutes further recorded:
"Govt. of Maharashtra submitted that there is no other
possibility for drinking water supply in this region since,
G from the month of November-December, the storage in
SRSP recedes considerably and water spread falls below
the border. The farmers in this region need water for
irrigating their Rabi crops and at present there is no other
arrangement for this purpose. Considering the requirement
H
STATE OF ANDHRA PRADESH v. STATE OF 205
MAHARASHTRA & ORS. [R.M. LODHA, J.]
of Govt. of Maharashtra and keeping in view the objectives A
of Govt. of Andhra Pradesh, an alternative solution was
suggested as under:
The capacity of the barrage should be reduced to the
bare minimum requirement of Govt. of Maharashtra, which B
has been assessed by them as 1.09 TMC. From the Area
Capacity relationship submitted by the Govt. of
Maharashtra, it was observed that at an FRL of 334.20m,
the capacity of the Babhali barrage reservoir is 1.03812
TMC and at FRL 334.60 m, the capacity is 1.16893 TMC.
Therefore, if the FRL is kept at 334.50 m, the requirement C
of Govt. of Maharashtra can be met and this will reduce
the height of the gates by 3.5 m. The gates will be closed
only after 28th October depending on the inflow and
storage condition of SRSP, to be mutually agreed by both
the concerned states. D
Under the existing circumstances, this was discussed by
the Committee as a viable option for consideration for
amicable settlement of the issue. The officials of the Govt.
of Andhra Pradesh and the Govt. of Maharashtra E
expressed that they would need approval of their
respective governments in this regard. The Chairman
suggested that there may not be any need for another
meeting if the response is positive and the
recommendation could be submitted to the Hon'ble Union F
Minister for Water Resources after the response from the
two states are received."
68.2. The two states could not agree to any solution mutually
thereafter.
G
69. Andhra Pradesh has a grievance about meetings held
on 26.04.2006 and 19.05.2006 as according to it the technical
committee did not examine the issues in terms of the grievance
of Andhra Pradesh. According to Andhra Pradesh, ewe in the
Inter-state meetings held on 11.07.2005 and 05.10.2005 have H
206 SUPREME COURT REPORTS (2013] 2 S.C.R.
A categorically opined that without the consent of Andhra Pradesh,
Maharashtra is not entitled to construct the Babhali barrage
within the submergence area of the Pochampad project.
70. The issue of entitlement of Maharashtra under the
B agreement dated 06.10.1975 has been examined in the earlier
part of the judgment. The question now is, even if we accept
the interpretation placed upon the agreement dated 06.10.1975
by Andhra Pradesh, should an injunction follow against
Maharashtra.
c 71. There is a sharp conflict over the subject matter of the
dispute between the two states. Andhra Pradesh does not trust
Maharashtra and seriously doubts that Maharashtra would
honour what it says. In this regard, Mr. K. Parasaran, learned
senior counsel for Andhra Pradesh brought to our notice the
D diverse acts of. Maharashtra. During the pendency of the suit,
Mr. K. Parasaran submitted that Maharashtra resumed the
construction contrary to the directions given by ewe on
03.03.2006. In the meeting of the Chief Ministers of Andhra
Firadesh and Maharashtra held on 04.04.2006, it was decided
E that a technical committee shall go into the details of various
issues involved in Babhali Barrage project and till the technical
committee submits its report, further construction work will not
be done by Maharashtra. This was not adhered to by
Maharashtra. On 26.04.2007, this Court by an interim order
F permitted Maharashtra to go ahead with construction of the
Babhali barrage but directed that it shall not install the proposed
13 gates until further orders. It was clarified by this Court that
as the Maharashtra is permitted to proceed with construction
at its own risk, it will not claim any equity by reason of the
G construction being carried on by it. Contrary to and in violation
of the interim order of this Court, Andhra Pradesh says that
Maharashtra proceeded to install the gates. It also installed 14
gates instead of proposed 13 gates. As the Maharashtra went
ahead with installation of gates (5 Nos.), Andhra Pradesh was
H compelled to file contempt petition.
STATE OF ANDHRA PRADESH v. STATE OF 207
MAHARASHTRA & ORS. [R.M. LODHA, J.]
72. There may be some merit in the grievances of Andhra A
. ,,
Pradesh in this regard. Andhra Pradesh has suggested that to
take care of its concerns, it would be appropriate to permit it
to provide 1.09 TMC to Maharashtra from the water spread
area of the Pochampad in the territory of Maharashtra and
direct Maharashtra to remove the installed gates. In our view, B
if Andhra Pradesh's apprehensions are addressed and its
fears are allayed by putting in place a supervisory mechanism
in the form of a committee, no substantial injury of serious
magnitude would occasion to Andhra Pradesh.
73. There are views and counter views on the post
·c
monsoon yield data (October 29 to May 31). Andhra Pradesh,
with reference to the post monsoon yield data furnished by
Maharashtra, submits that the available yield to Maharashtra
at Babhali barrage is in the range of 1537.20 MM 3 (i.e. 54.29
TMC) to 77.39 MM 3 (i.e. 2.73 TMC) in 75 per cent years of the D
37 years series project. This enables Maharashtra to
appropriate more than 2.74 TMC in 74 per cerit of years as
water will be drawn from pondage and replenished. During non-
monsoon 7/8 months the water flows in trickles and, therefore,
water will be drawn for irrigation and replenish on a regular basis E
even in remaining failure years of 25 per cent where non-
- monsoon yield is less than 2.74 TMC or years where non-
monsoon flows are absolutely bare minimum, Maharashtra will
be enabled to draw the water from the intercepted storage of
Pochampad or by reverse flow. Andhra Pradesh emphasizes F
that Maharashtra has ignored 75 per cent dependability of
Pochampad project. After lowering the gates of Babhali barrage
on October 28, the non-monsoon flows into Pochampad are
obstructed during the 75 per cent of the years. Babhali barrage
has the effect of depleting Andhra Pradesh's entitlement to the G
flow of water into its project constructed at 75 per cent
dependability.
74. Maharashtra, on the other hand, says that Andhra
~
Pradesh has ignored the fact that Babhali barrage comes into
H
208 SUPREME COURT REPORTS [2013] 2 S.C.R.
A operation only after October 28 and the 75 per cent
dependability yield at Babhali barrage after that date is only
2. 73 TMC. Maharashtra asserts that it has calculated the actual
75 per cent available flows from October 29 to May 31 from
1968 to 2004 which comes to only 2.73 TMC at 75 per cent
B dependable yield. Hence, the utilization cannot be more than
2.73 TMC. Maharashtra also asserts that there is no occasion
for it to utilize periodically 2.74 TMC from time to time as the
total flow after October 28 is only 2.73 TMC. Maharashtra also
says that there is no question of Maharashtra drawing water of
c Pochampad reservoir in the reverse direction to the extent of
65 TMC. With regard to Balegaon barrage, Maharashtra
asserts that the capacity of Balegaon barrage is about 1.5 TMC
out of which 0.6 TMC is the intercepted storage of Babhali
barrage and the remaining 0.9 TMC is adjusted from the
sanctioned utilization of Vishnupuri barrage project upstream.
0
75. We have carefully considered the submissions of the
two states on post monsoon yield data (October 29 to May 31).
The discharge data actually has been observed by the CWC
at Yelli gauging site for the period 1968 to 2004, October 29
E to May 31 which does indicate that on 75 per cent dependable
flow, the total yield for this period is 2.733 TMC (77.39 MM3).
We find no justifiable reason to discard the discharge data
observed by ewe for 36 years.
-
F 76. We have also examined the list of major, medium,
minor (state sector), minor (local sector) of the projects
sanctioned after 06.10.1975 below Paithan dam up to
Maharashtra - Andhra Pradesh state border. A careful look at
the said list shows that for the diverse projects sanctioned after
06.10.1975 in Godavari river below Paithan dam up to Andhra
G Pradesh state border, the total utilization is of 63018 MC feet
(63.018 TMC) and the net utilization is 59112.70 MC feet
(59.11270 TMC). Andhra Pradesh is right that total utilization
of waters for new projects sanctioned after 06.10.1975 is
63.018 TMC. However, as noted above, the net utilization by
H
STATE OF ANDHRA PRADESH v. STATE OF 209
MAHARASHTRA & ORS. [R.M. LODHA, J.]
Maharashtra of the projects sanctioned after 06.10.1975 is A
59.11270 TMC. In any case, Maharashtra has to ensure that it
does not exceed the restriction placed upon its utilization in
Clause ll(i) of the agreement dated 06.10.1975.
77. In the minutes of 19.05.2006 of the technical committee 8
meeting convened by Chairman, CWC, it is stated that the
project report of the Babhali barrage has been prepared
according to the standard guidelines of the Commission. The
project report of Babhali barrage which has been got approved
from ewe clearly indicates that the monthly yield from c
November during post monsoon season is 2.64 TMC. The
project report also shows that there is no scope for
Maharashtra for withdrawing more than 2.73 TMC.
78. Maharashtra's assertion that Babhali barrage will trap
maximum 0.6 TMC of the Pochampad storage is not .a new D
plea raised for the first time before this Court in the amended
written statement. As a matter of fact, before filing the suit by
Andhra Pradesh, the said aspect was highlighted by
Maharashtra in the technical committee's meeting convened by
Chairman, CWC on 26.04.2006. The minutes of that.meeting E
record, "storage of Babhali barrage is well within the banks. The
sill level and FRL of Babhali barrage are 327 m and 338 iTI
respectively and 13 gates of 15 m x 11 m size are proposed
to be installed. The Gross storage of Sri Ram Sagar Project
and that of Babhali barrage are 112 TMC and 2.74 TMC F
respectively and there is a common storage of 0.60 TMC which
is just 0.54% of the storage of SRSP. Command area of
Babhali barrage is 7995 ha."
79. Moreover, admittedly rainfall during monsoon months
is the major contribution to the Godavari river flows. Monsoon G
contributes about 90 per cent of the river flow. During monsoon
months, the gates of Babhali barrage shall remain lifted. Thus,
river flow towards Pochampad dam during monsoon shall not
be affected in any manner whatsoever. There is no diminution
of flow during monsoon irrespective of construction of Babhali H
210 SUPREME COURT REPORTS [2013] 2 S.C.R.
A barrage by Maharashtra. The only difficulty is in respect of non-
monsoon season which contributes about 10 per cent of the
flows that too is not well defined and well spread. If this difficulty
is taken care of, virtually there is no injury to Andhra Pradesh
much less substantial injury in as much as the inhabitants of
B seven districts {Adilabad, Nizamabad, Karimnagar, Warrangal,
Nalgonda, Khammam and Medak) shall not be deprived of
water for drinking purpose and irrigation which is the main
concern of Andhra Pradesh. On the other hand, if Babhali
barrage is made operational subject to certain conditions and
c some supervisory mechanism is put in place to ensure that
those conditions are strictly adhered to, Maharashtra may be
able to meet drinking water requirement of 58 villages and
three towns and also provide water for irrigation to 7995
hectares. The matter needs to be viewed in this perspective
as well.
0
80. We assume that apprehensions of Andhra Pradesh are
bona fide and genuine. However, in our view, these
apprehensions can be largely overcome and addressed. It is
pertinent to notice that though with regard to present subject
E matter, Andhra Pradesh has taken a very rigid and hard stance
but with regard to Pranhita project (Dr. B.R. Ambedkar Pranhita
Chevella Sujala Sravanti Project) Andhra Pradesh and
Maharashtra have adopted a very collaborative position ·10
ensure efficient, speedy and economical investigation and
F execution of this project. The two Chief Ministers as recently
as May 2012 have entered into an agreement for constitution
of Inter-State Board to take charge of and deal with all the
matters relating to all relevant items as stipulated in the 1979
award and 1980 further award with regard to Pranhita river.
G There is no reason why supervisory committee cannot oversee
the compliance of commitments which Maharashtra had made
to this Court by way of pleadings and also in the course of
hearing.
81. In view of the foregoing discussion, we may conclude •
H
STATE OF ANDHRA PRADESH v. STATE OF 211
MAHARASHTRA & ORS. [R.M. LODHA, J.]
our findings as follows : A.
(i) Under the agreement dated 06.10.1975 and the 1979
award of the Tribunal the utilization of 60 TMC water by
Maharashtra for the new projects below Paithan dam site
on the Godavari and below Siddheswar dam site on the
8
Puma and below Nizamsagar darn site on the Manjra and
up to Pochampad dam site on the Godavari is not
confined to flowing waters alone in the territory of
Maharashtra.
(ii) The thrustof the parties in Clause ll(i) of the agreement C
dated 06.10.1975 and the essence of this Clause is to put
a cap OT) the right of Maharashtra to utilize water of
Godavari river below the three dams mentioned therein up
to Pochampad dam site to the extent of 60 TMC for new
projects and in no case exceeding that limit. There is no D
demarcation made in the agreement that the utilization of
waters not exceeding 60 TMC for new projects by
Maharashtra shall be from the flowing water through the
river from the catchment area only.
(iii) The commitment of Maharashtra that the Babhali E
barrage project requires 2.74 TMC of water out of the
allocation of 60 TMC for new projects under the agreement
of which only 0.6 TMC is from the common submergence
of Pochampad reservoir and Babhali barrage if accepted
and its compliance is ensured, it may be conveniently held F
that Babhali barrage would not enable Maharashtra to
draw and utilize 65 TMC of water from the storage of
Pochampad project as alleged by Andhra Pradesh.
(iv) Alternatively, even if the interpretation placed upon the G
agreement dated 06.10.1975 by Andhra Pradesh is
accepted that utilization of waters to the extent of 60 TMC
for new projects by Maharashtra from below the three dam
sites mentioned in Clause ll(i) up to Pochampad dam site
can be only from water flowing through the river from the H
212 SUPREME COURT REPORTS [2013] 2 S.C.R.
A catchment area and not from the pondage/water spread
area of Pochampad dam, on the basis of facts which have
come on record, a case of substantial injury of a serious
magnitude and high equity that moves the conscience of
the Court has not been made out by Andhra Pradesh
B justifying grant of injunction.
82. In light of the above, we hold that Andhra Pradesh is
not entitled to the reliefs, as prayed for, in the suit.
· 83. However, a three member supervisory committee is
C constituted. The committee shall have one representative from
the Central Water Commission and one representative each
from the two states, Andhra Pradesh and Maliarashtra. The
representative of Central Water Commission shall be Chairman
of the committee. The Committee shall select the place for its
o office which shall be provided by Maharashtra. Maharashtra
shall bear the entire expenditure of the Committee. The powers
and functions of the supervisory committee shall be as follows: I
(i) The committee shall surprise the operation of the
Babhali barrage.
E
(ii) The committee shall ensure that;
(a) Maharashtra maintains Babhali barrage
storage capacity of 2.74 TMC of water out
F ·of the allocation of 60 TMC given to
Maharashtra for new projects under the
agreement dated 06.10.1975.
(b) The gates of Babhali barrage remain lifted
during the monsoon season, i.e, July 1 to
G October 28 and there is no obstruction to the
natural flow of Godavari river during
monsoon season below the three dams
mentioned in Clause ll(i) of the agreement
dated 06.10.1975 towards Pochampad
H dam.
STATE OF ANDHRA PRADESH v. STATE OF 213
MAHARASHTRA & ORS. [R.M. LODHA, J.]
{c) During the non-monsoon season i.e., from A
October 29 till the end of June next year, the
quantity of water which Maharashtra utilizes
for Babhali barrage does not exceed 2.74
TMC of which only 0.6 TMC forms the
common submergence of Pochampad B
reservoir and Babhali barrage.
{d) Maharashtra does not periodically utilize 2.74
TMC from time to time.
·(e) Maharashtra releases 0.6 TMC of water to C
Aadhra Pradesh on 1st March every year.
(f) Maharashtra maintains the capacity of
Balegaon barrage to 1.5 TMC. Out of this 0.9
TMC is adjusted from sanctioned utilization D
of Vishnupuri project upstream and 0.6 TMC
remains the intercepted storage· of Babhali
barrage.
84. Sujt and IA Nos. 13 and 15 are disposed of as above
with no orders as to costs. E
W.P.!Cl No. 134/2006. W.P.!Cl No. 210/2007 AND W.P.(C)
No. 207/2007
85. We have heard Mr. A.K. Ganguli, learned senior F
counsel for the petitioners in W.P.(C) No. 207 of 2007. We have
also considered the written submissions filed in W.P.(C) Nos.
207 and 210 of 2007. However, we do not find it necessary to
consider these writ petitions on merits in view of consideration
and decision in the original suit filed by Andhra Pradesh against G
Maharashtra.
86. These Writ Petitions and IA Nos. 1 and 3 in Writ
Petition © No. 134 of 2006, IA Nos. 1 and 2 in Writ Petition ©
No. 21 Oof 2007 and IA No. 1 in Writ Petition © No. 207 of 2007
H
214 SUPREME COURT REPORTS [2013] 2 S.C.R.
A are disposed of accordingly.
Contempt Petition (C) No. 142 of 2009 in Original Suit No.
1 of 2006
87. In view of our judgment given in Original Suit, we are
B not inclined to consider the Contempt Petition on merits. It is
disposed of accordingly.
R.P. Original Suit disposed of.
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