Supreme Court of India
STATE OF ORISSAversusGOVERNMENT OF INDIA & ANR.
- Citation
- 2009 INSC 119
- Decided
- 6 February 2009
- Disposal
- Disposed off
- Bench
- ALTAMAS KABIR
Holding
The dispute is a water dispute under Section 2(c)(i) of the Inter‑State Water Disputes Act, 1956, and the Central Government must constitute a Water Disputes Tribunal within six months, with the status quo maintained pending its constitution.
Summary
The State of Orissa filed a writ petition under Article 32 seeking the constitution of a Water Disputes Tribunal and an interim injunction against the State of Andhra Pradesh, which was constructing a side‑channel weir and flood‑flow canal on the Vansadhara river despite a 1994 agreement to share the river’s waters equally. Orissa alleged that the unilateral diversion would disturb the 50:50 sharing arrangement and deprive downstream users, while Andhra Pradesh contended that the project fell within its allocated share. The Supreme Court examined whether the dispute qualified as a "water dispute" under Section 2(c) of the Inter‑State Water Disputes Act, 1956, and whether it could entertain the petition despite the bar in Section 11. The Court held that the dispute indeed fell within the definition of a water dispute, that the Court could grant interim relief under Article 32, and that the Central Government was obligated to constitute a tribunal within six months. Accordingly, the Court ordered the Central Government to set up a Water Disputes Tribunal and directed the status quo to be maintained pending its constitution.
Issues considered
- The construction of the side‑channel weir and flood‑flow canal constitutes a "water dispute" within the meaning of Section 2(c) of the Inter‑State Water Disputes Act, 1956.
- Whether the Supreme Court can entertain the writ petition and grant interim relief despite the bar on jurisdiction under Section 11 of the Act.
- Whether the Central Government is mandatorily required to constitute a Water Disputes Tribunal under Section 4 within the prescribed time‑frame.
- Whether an interim order restraining the construction is appropriate to preserve the status quo pending tribunal formation.
Legislation cited
- Constitution of Indias. Article 21, s. Article 262, s. Article 32
- Inter-State Water Disputes Act, 1956s. 11, s. 2(c), s. 3, s. 4(1), s. 9
Subjects
inter‑state water disputewater sharingVansadhara riverInter‑State Water Disputes ActArticle 32Article 21interim relieftribunal constitutionright to water
Judgment
[2009] 1 S.C.R. 992
A STATE OF ORISSA
v.
GOVERNMENT OF INDIA & ANR.
Writ Petition (C) No. 443 of 2006
FEBRUARY 6, 2009
B
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]
INTER-STATE WATER DISPUTES ACT, 1956: t
c ss. 2(c),3,4(1) and 11 - 'Water dispute' - Constituting of
Water Dispute Tribunal- Interim order-Agreement between
States of Orissa and Andhra Pradesh to equally share the
waters of river Vansadhara - Later, State of Andhra Pradesh
constructing Side Channel Weir and Flood Flow Canal
D Project to divert the river water - No steps taken by Union
Government on complaint u/s 3 made by State of Orissa-
HELD: Unilateral decision taken by State of Andhra Pradesh
..
to divert the river water is likely to disturb the agreement and
would be a water dispute within the meaning of s.2(c) - Union
Government is directed to constitute a Water Dispute Tribunal
E
within a period of six months and refer the dispute to it -
Meanwhile State of Andhra Pradesh would maintain status quo
- Recommendation to Central Government to constitute a
body of experts for optimum utilization of water in the country
- Constitution of India, 1950 -Articles 32 and 21.
F
The State of Orissa filed the instant writ petition
against the Union of India and the State of Andhra
Pradesh stating that under the agreement dated
30.12.1994, the Chief Ministers of Orissa and Andhra •
G Pradesh decided to share 50:50 the waters of river
Vansadhara. Despite the agreement, the State of Andhra
Pradesh started construction of Side Channel Weir and
~
Flood Flow Canal at Katragada to divert the waters of I
river Vansadhara. On 13.2.2006, a complaint uls 3 of the
H 992
STATE OF ORISSA v. GOVERNMENT OF INDIA & 993
ANR.
r. Inter-State Water Disputes Act, 1956 was made to the
Union of India, but no steps were taken by it within the
time specified in s.4 of the Act. It was, therefore, prayed
A
in the writ petition that the Union Government be directed
to constitute a Tribunal u/s 4 of the Act and refer to it the
dispute relating to construction of Side Channel Weir and B
Flood Canal at Katragada on river Vansadhara by the
State of Andhra Pradesh; and that the State of Andhra
... Pradesh be restrained from carrying on any works on the
proposed Project. The stand of the State of Andhra
Pradesh was that the relief prayed for in the writ petition c
did not relate to "water dispute" within the meaning of
s.2(a) of the Act; that in principle both the States had
agreed to the equal sharing of the waters of river
Vansadhara and the Project proposed by the respondent
State related to the part of the river waters within its D
allocation.
Disposing of the writ petition, the Court
HELD: Per Kabir, J.
E
1.1. The dispute in the instant case does not confine
itself to the construction of the Side Channel Weir and the
Flood Flow Canal, but primarily it involves the unilateral
decision taken by the State of Andhra Pradesh to divert
the river waters to its territory, which could possibly
F
disturb the agreement to share the waters of the river
equally. Such a dispute must be held to be a water dispute
within the meaning of s. 2(c) (i) of the Inter State Water
Disputes Act, 1956. Moreover, the time frame inserted in
Sub-section (1) of s. 4 of the Act also is a relevant factor
G
to grant the reliefs prayed for by the State of Orissa since
its complaint is pending from 13.2.2006. [Para 28 and 29]
[1009-G-H; 1010-A-B]
Tamil Nadu Cauvery Neerppasana Vilaiporulgal
Vivasayiga/ Na/a Urimai Padhugappu Sangam vs. Union of H
994 SUPREME COURT REPORTS [2009] 1 S.C.R.
- ~
A India & Ors. 1990 (3) SCC 440, referred to.
1.2. The Central Government is directed to constitute
a Water Disputes Tribunal within a period of six months
from date and to refer to it the dispute relating to the
B construction of the Side Channel Weir and Flood Flow
Canal at Katragada on the river Vansadhara by the State
of Andhra Pradesh for diversion of the waters of the said
river which could adversely affect the supply of water +
from the said river to the State of Orissa. [Para 31] [1010- ....
C-E]
c
2.1. Unless some interim protection is given till the
constitution of the Water Disputes Tribunal. by the Central
Government, the objection raised by the State of Orissa
will be rendered infructuous, which certainly is not the
D intention of the 1956 Act. [Para 30] [1010-C-D]
2.2. Notwithstanding the powers vested by s.9 of the
Act in the Water Disputes Tribunal to be constituted by
the Central Government uls 4, which includes the power
E to grant the interim order, this Court under Article 32 of
the Constitution has ample jurisdiction to pass interim
orders preserving the status quo till such a Tribunal is
constituted. The bar uls 11 of the Act will come into play
once the Tribunal is constituted and the water dispute is ..L,
F referred to it. [Para 30] [1010-C-E]
2.3. Pending constitution of the Water Disputes
Tribunal and reference of the dispute to it, the State of
Andhra Pradesh will maintain status quo as of date with
regard to the construction of the Side Channel Weir and
G
the Flood Flow Canal at Katragada. [Para 32] [1010-H;
1011-A] Y.-
Cauvery Water Disputes Tribunal vs. Government of
Karnataka 1991 ( 2) Suppl. SCR 497= 1993 Supp (1) SCC
H 96(11), cited.
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 995
Per Katju, J. (Supplementing) : A
1. Right to get water is a part of right to life
guaranteed by Article 21 of the Constitution of India. [Para
9] (1013-D]
Delhi Water Supply & Sewage Disposal Undertaking and 8
Anr. vs. State of Haryana and Ors. 1996(2) SCC 572 and
Chameli Singh & Ors. vs. State of UP. & Ors. 1996(2) SCC
549, relied on.
2. It is recommended to the Central Government to C
immediately constitute a body of eminent scientists in the
field to do research on a war footing to find out ways and
means of solving the water shortage problem in the
country. The said body should be given all financial,
technical and administrative help by the Central and State D
Governments to find out inexpensive and viable methods
of converting saline water into fresh water, utilizing rain
water, flood water and other sources of water for its
optimum use in the country. [Para 12 and 13] [1014-B-G]
E
Case. Law Reference :
1990 (3) sec 440 referred to para 16
1991 { 2 ) Suppl. SCR 497 cited para 24
1996(2) sec 572 relied on para 9 F
1996(2) sec 549 relied on para 10
CIVIL ORIGINAL JURISDICTION : Writ Petition No. 443 of
2006.
G
Under Article 32 of th Constitution of India.
Raju Ramachandran, Shankar N., Mrigank P. and Radha
Shyam Jena for the Appellant.
H
996 SUPREME COURT REPORTS [2009) 1 S.C.R.
A Dipankar Gupta, D. Sudershan Reddy, Ataf Fatima and
D. Bharathi Reddy for the Petitioner.
Navin Prakash and D.S. Mahra for UOI.
The Order of the Court was delivered by
8
ALTAMAS KABIR, J. 1. The State of Orissa has filed this
writ petition under Article 32 of the Constitution of India, wherein
t
the Government of India has been made the Respondent No.1
and the State of Andhra Pradesh has been made the
C Respondent No.2, inter alia, for the following reliefs :-
"(a) direct the Government of India to constitute an
appropriate Tribunal under Section 4 of the Inter
State Water Disputes Act, 1956 and thereafter,
refer to it the dispute relating to the construction of
D
Side Channel Weir and Flood Flow Canal Project
at Katragada on the river Vansadhara by the State
of Andhra Pradesh;
(b) issue a writ of mandamus commanding the State
E of Andhra Pradesh to forbear from carrying on any
works of the proposed project;"
2. As indicated in the very opening paragraph, the writ
petition was filed by the State of Orissa for a direction to the "-.
F Central Government to constitute a Water Disputes Tribunal
under the Inter-State Water Disputes Act, 1956 and to refer to
the Tribunal the dispute contained in the complaint made by the
State of Orissa on 13th February, 2006, as to whether the State
of Andhra Pradesh was justified in constructing a Side Channel
G Weir and Flood Flow Canal Project on the river Vansadhara
at Katragada, which would adversely affect the supply of water
from the river to the State of Orissa and adversely affect the
livelihood of thousands of people of Orissa in glaring violation
of Article 21 of the Constitution of India.
H
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 997
[ALTAMAS KABIR, J.]
"-.( . 3. In order to understand the stand taken by the State of A
Orissa in the matter, it would be necessary to set out the facts
of the case giving rise to the dispute.
4. The river Vansadhara originates in the South West of
Lanjigarh in the Kalahandi District of Orissa and continues its B
journey for 239 kms. before entering the Bay of Bengal. Out of
the said 239 kms., a length of 154 kms. lies in the State of
Orissa, 29 kms. forms the border between the State of Orissa
and Andhra Pradesh and the remaining 56 kms. lies within the
State of Andhra Pradesh. The said river and its valley is fed c
by the South-West monsoon beginning in the middle of June
and ending in the month of October each year and is followed
by the retreating monsoon and North-East monsoon till the end
of January. According to the State of Orissa, about 80% of the
total volume of water comes from the catchment area lying in
D
Orissa. While the farmers in Andhra Pradesh utilize 7 TMC of
water from the river, the inhabitants of Orissa utilize 12 TMC
for drinking purposes and water tanks etc. in the up-stream and
down stream of Katragada.
5. During the period from 1956-60, the State of Andhra E
Pradesh proposed the construction of Gotta Barrage and
Neradi Barrage across the Vansadhara river. During the
aforesaid period, many meetings were held between the
..i. officials of the two State Governments to resolve the dispute
of allocation of water. On 30th September, 1962, an Agreement F
was signed by the Additional Chief Engineer of Orissa and the
Additional Secretary, PWD, of Andhra Pradesh, which was
recorded in Minutes dated 30th September, 1962. In 1971, the
State of Andhra Pradesh started construction of the Gotta
Barrage (Vansadhara Stage-I) which was completed in the year G
1982. Thereafter, it also constructed Phase-I of Stage-I I of the
..',(
Vansadhara project, i.e., right bank canal. Several meetings
were held between the officials, including the Chief Ministers
of the two States, and Agreements were signed pertaining to
allocation of water of the Neradi Barrage. On 30th December, H
998 SUPREME COURT REPORTS (2009] 1 S.C.R.
A 1994, a meeting was held between the Chief Ministers of the
two States and it was decided that all the available water would
be shared between the two States on a 50:50 basis annually.
The discussions relating to the distribution of water from the
Neradi Barrage were recorded and is reproduced hereinbelow
B
"NERAD! BARRAGE :
Government of Orissa agrees in principle to the
proposal of Government of Andhra Pradesh for going
c ahead with the project subject to the following conditions.
(1) Hydrology data available in the C.W.C. Water year
Book upto 1992 was studied by the Orissa
Engineers. Based on this analysis it is found that
D in Vansadhara basin approximately 76.47 TMC
water is available in monsoon. During non-monsoon
months the yield may approximately be 7 TMC. All
the available water will be shared between the two
States on 50:50 basis annually. The above figure
E regarding water availability would be updated from
time to time on the basis of additional data as and
when available.
(2) No area in Orissa will be submerged as a result of
construction of the proposed Neradi Barrage,
F
except 106 acres of land to be acquired in Orissa
State for various purposes as indicated in the
Project Report.
(3) To ensure that the back water stretch is limited only
G to 3 kms on the upstream, the river has to be
widened by removing construction between the
chainage 10.37 to 13.65 kms to the section as
suggested in the supplementary mathematical
model run by the C.W.C. The Government of Orissa,
H
STATE OF ORISSA v. GOVERNMENT OF INDIA & 999
ANR. [AlTAMAS KABIR, J.]
in consultation with C.W.C. will however conduct A
sensitivity studies within a period of 3 (three) months
incorporating varying 'n' values which has not been
carried out so far by the C.W.C. This study will
indicate the water surface profile upstream and
downstream of the barrage and the extent of likely B
back water stretch in Orissa. Based on the
sensitivity study the height and length of the wall
may need revision, the design of which will need to
be agreed by the Orissa Government.
(4) A joint technical committee consisting of the
c
Engineer-in-Chief of both the States will be formed
to approve broad design and construction features
of the barrage as well as water sharing and flood
management.
D
Sd/- Sd/-
Shri N.T. RAMA RAO Shri BIJU PATNAIK
CHIEF MINISTER CHIEF MINISTER
E
ANDHRA PRADESH ORISSA."
6. After the meeting of the two Chief Ministers and the
decision arrived at by them, several meetings were held
between the officials of both the States in regard to the F
allocation of water of the river flowing through both the States.
At this stage, while considering the technical design of the
Neradi Barrage, the Government of Andhra Pradesh announced
a new project by investment of Rs.850 crores. The Chief
Minister of Andhra Pradesh on 6th January, 2005, announced G
that the waters of the Vansadhara river would be diverted at
' Katragada to a 34 kms. long Flood Flow Canal and be stored
in the Heeramandalam reservoir to irrigate 1.07 lakh acres of
land by utilizing 19 TMC of water. It was apprehended by the
State of Orissa that the said proposed project would deprive H
1000 SUPREME COURT REPORTS [2009] 1 S.C.R.
A the villagers of Orissa lying on the opposite bank in the down
stream from even dry-weather flow and there was also a
possibility of shifting of the river course itself. On 18th February,
2005, the Principal Secretary, Department of Water Resources,
Government of Orissa, wrote to his counter-part in Andhra
B Pradesh protesting against the new project. The said objection
culminated in a meeting of the Ministers of the two States on
24th February, 2005 at Hyderabad against the new proposal
for the project at Katragada and the said meeting ended with
the following resolution:
c "(1) Constitution of a Technical Committee with the
Engineers from both the States to study all aspects of
Vansadhara Project Phase II of State-II, including
submergence in Orissa, if any, and submit the report not
later than three months.
D
(2) No work will be taken up by both the States in
the river bed or banks or on Flood flow Canal, till the final
Report of the Technical Committee is submitted and
accepted by both the Government~.
E
(3) No work, which will jeopardize the interest of any
State, shall be taken up.
(4) The relevant Project information will be furnished
to the Central Water Commission, as per requirements.
F
(5) The delegation of Ministers of both the States ..
shall meet as frequently as possible to sort out all the
matters of mutual interest as regards to Irrigation
Project. ..... "
G
7. It is the grievance of the State of Orissa that despite the
resolution adopted at the Inter-State meeting held on 24th )t..
February, 2005, whereby four meetings were proposed to be
held, no such meetings were convened, and, on the other hand,
H despite the undertaking given by the two States the State of
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 1001
[ALTAMAS KABIR, J.]
Andhra Pradesh continued with its construction work on the A
Flood Flow Canal by continuing with land acquisition and other
preliminary works. Even Bhoomi Pujan was alleged to have
been conducted by the State of Andhra Pradesh in connection
with the aforesaid project. It is the said conduct of the officials
of the State of Andhra Pradesh, which resulted in the filing of B
the writ petition and also a complaint under Section 3 of the
Inter State Water Disputes Act, 1956 and the Rules framed
~
thereunder to the Union of India. Following the said complaint,
an Inter-State Meeting with Secretaries of the Irrigation/Water
Resources Departments of the two States was convened on c
24th April, 2006 by the Secretary (Water Resources),
Government of India. However, no action was taken by the
Government of India with regard to the request made by the
Government of Orissa to restrain the Government of Andhra
Pradesh from going ahead with the construction of the D
Vansadhara Phase-II of Stage-II (Katragada Flood Flow Canal)
or to constitute a Water Disputes Tribunal under Section 4(1)
of the Inter State Water Disputes Act, 1956 (hereinafter referred
to as "1956 Act"). While, on the one hand, the Government of
India remained inactive, the State of Andhra Pradesh E
proceeded with the work of the Side Channel Weir and Flood
Flow Canal at Katragada on the river Vansadhara compelling
the State of Orissa to move the instant writ petition for the reliefs
as indicated hereinbefore.
.A
8. Appearing for the State of Orissa, Mr. Raju F
.. Ramachandran, learned Senior Advocate, submitted that the
dispute between the State of Orissa and the State of Andhra
Pradesh was in effect a "water dispute" within the meaning of
Section 2(c) of the 1956 Act, as it relates to the apportionment
of the waters of the Vansadhara river between the two States G
which would be adversely affected by the decision of the State
·~ of Andhra Pradesh to divert the waters of the said river at
Katragada to a 34 kms. long Flood Flow Canal for storage in
the Heeramandalam reservoir which would have the effect of
H
1002 SUPREME COURT REPORTS [2009] 1 S.C.R.
A depriving the inhabitants in the State of Orissa in the
downstream area of water for drinking and for other purposes.
9. "Water dispute" has been defined in Section 2(c) of the
1956 Act as follows :-
B "Water dispute" means any dispute or difference between
two or more State Governments with respect to -
~
(i) the use, distribution or control of the waters of, or
in, any Inter-state river or river valley; or
c
(ii) the interpretation of the terms of any agreement
relating to the use, distribution or control of such
waters or the implementation of such agreement;
or
D (iii) the levy of any water-rate in contravention of the
prohibition contained in Section 7."
In this regard, reference may also be made to Article 262
of the Constitution of India, which provides as follows :-
E
"262. Adjudication of disputes relating to waters of inter-
State rivers or river valleys:-
(1) Parliament may by law provide for the adjudication of
any dispute or complaint with respect to the use,
F distribution or control of the waters of, or in, any inter-State '" .
river or river valley;
(2) Notwithstanding anything in this Constitution, Parliament
may by law provide that neither the Supreme Court nor any
G other Court shall exercise jurisdiction in respect of any
such dispute or complaint as is referred to in clause (1 )."
~·
10. A similar provision is contained in Section 11 of the
1956 Act, which reads as follows :-
H
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 1003
[ALTAMAS KABIR, J.]
"11. Bar of jurisdiction of Supreme Court and other A
Courts-
Notwithstanding anything contained in any other law,
neither the Supreme Court nor any other Court shall have
or exercise jurisdiction in respect of any water dispute B
which may be referred to a Tribunal under this Act."
11. In the light of the above provisions, both of the 1956
+
=- Act and the Constitution, and having regard to the inaction of
the State authorities to settle the dispute, Mr. Ramachandran
submitted that the State of Orissa was compelled to file the c
complaint to the Central Government under Section 3 of the
1956 Act for the constitution of a Tribunal in terms of Section 4
thereof.
;
12. While considering the nature of the dispute, this Court D
on 30th April, 2007, urged the parties, if possible, to arrive at
a settlement. which did not prove fruitful.
13. Referring. to Section 3 of the 1956 Act, Mr.
Ramachandran contended that it was for the State Government
E
to arrive at a decision that a water dispute had arisen with the
Government of another State and subject to fulfilling the
conditions indicated in Section 3, it could request the Central
Government to refer the water dispute to a Tribunal for
,Jo. adjudication, as has been done in the instant case. Mr.
F
Ramachandran also referred to Section 4 of the 1956 Act,
~
which deals with the constitution of the Tribunal and submitted
that when a request under Section 3 was received from any
State Government in respect of a water dispute and the Central
Government was of the opinion that the water dispute could not
be settled by negotiation, the Central Government would have G
to, by notification in the Official Gazette, constitute a Water
~ Disputes Tribunal forlhe adjudication of the water dispute. Mr.
Ramachandran urged that the provisions of both Sections 3 and
4 of the 1956 Act were reflected in prayer (a) of the writ petition,
H
1004 SUPREME COURT REPORTS [2009] 1 S.C.R.
A in which a direction has been sought on the Government of India
to constitute an appropriate Tribunal under Section 4 of the
1956 Act.
14. Mr. Ramachandran also pointed out that in the counter
8 affidavit filed on behalf of Union of India, it has been stated in
paragraphs 2, 3 and 4 that necessary steps had already been
taken pursuant to the complaint filed by the State of Orissa in
accordance with the provisions of the 1956 Act and the +
Government of India was hopeful of a negotiated settlement of
C the dispute. In paragraph 3 it has been indicated that only in
· the event of failure of negotiations for settlement of the water
dispute, necessary steps may be taken or directions may be
issued for the constitution of a Tribunal.
15. Mr. Ramachandran urged that despite all efforts, a
D negotiated settlement has eluded the parties and, on the other
hand, the State of Andhra Pradesh has continued with the
construction work of the Side Channel Weir and Flood Flow
Canal Project at Katragada.
E 16. Having regard to the above, Mr. Ramachandran
referred to the decision of this Court by a Bench of three Judges
in Tamil Nadu Cauvery Neerppasana Vilaiporulga/ Vivasayiga/
Nata Urimai Padhugappu Sangam vs. Union of India & Ors.
(1990 (3) sec 440), wherein in a similar application under
F Article 32 of the Constitution regarding the equitable distribution
of the waters of the river Cauvery, a direction was sought on
...
the Union of India for the constitution of a Water Disputes
Tribunal under the 1956 Act. While considering the provisions
of Section 4, this Court was of the view that in view of the
G mandatory provisions of Section 4 by use of the word "shall", it
was both mandatory and obligatory on the part of the Central
Government to constitute an appropriate Tribunal and to refer
the dispute to it. Having held as above, this Court directed the
Central Government to constitute such Tribunal for adjudication
H of the water dispute indicated in the judgment. Mr.
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 1005
[AlTAMAS KABIR, J.]
Ramachandran submitted that a similar direction may also be A
issued in the instant case in view of the failure of the Central
Government to act in terms of Section 4 on the complaint made
by the State of Orissa under Section 3 of the 1956 Act.
17. Learned senior counsel, Mr. Dipankar Gupta, who 8
appeared for the State of Andhra Pradesh, at the very outset
contended that the relief prayed for by the State of Orissa in
the Writ Petition was not a "water dispute" within the meaning
of Section. 2(c) of the 1956 Act. Mr. Gupta submitted that in
principle both the States had agreed to the sharing of the waters C
of the Vansadhara river on an equal basis and without
disturbing the said arrangement, the State of Andhra Pradesh
had taken a decision to divert a part of the river waters, within
its allocation, to Katragada, to benefit a large number of farmers
living in the said region. Mr. Gupta urged that the construction
0
of the Side Channel Weir and the Flood Flow Canal at
Katragada and the Neradi Barrage was undertaken after a
series of meetings and discussions held between the Chief
Ministers of the two States and at several inter-State meetings,
in particular the meeting held on 5th December, 2006, the State E
of Orissa agreed for a mathematical model study of the side
weir and the meeting in that connection was scheduled to be
held on 18th December, 2006, at Pune, at the instance of the
Central Water and Power Research Studies, Pune. Mr. Gupta
submitted that the representatives of the State of Andhra
Pradesh attended the said meeting where it was decided to F
conduct certain tests in relation to the construction of the Weir
at Katragada. Pursuant to the meeting held on 5th December,
2006, the State of Orissa agreed to conduct a Technical
Committee meeting on 5.1.2007, at Bhubaneswar. As it
appears from the materials on record such meeting did not in G
fact take place although in principle the State of Orissa had
agreed to the aforesaid constructions subject to the report of
the Technical Committee of the Government of Orissa.
H
1006 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 18. Mr. Gupta submitted that despite the best efforts of the
State of Andhra Pradesh, owing to the non-cooperation on the
part of the State of Orissa, the construction of the Side Channel
Weir and the Flood Flow Canal and the Neradi Barrage were
stalled.
B
19. Mr. Gupta reiterated his opening submission that there
was, in fact, no dispute which was required to be referred to a
Water Disputes Tribunal to be constituted under the 1956 Act,
as both the States in principle had agreed to sharing of the
C waters of the Vansadhara river on an equal basis. All that was
required was for the representatives of the States to sit together
and with the help of their representatives and Technical
Committees arrive at a solution whereby the aforesaid
construction work could be undertaken without disturbing the
flow of water to the State of Orissa accenting to its entitlement.
0
20. The submissions made by Mr. Dipankar Gupta were
to some extent supported by the stand taken on behalf of the
Union of India. Referring to the avennents made in the counter-
affidavit filed on behalf of the Union of India, Mr. Navin Prakash, •
E learned counsel, submitted that it had always been and is still
the endeavor of the Union of India to settle the dispute which
has arisen between the two States by a negotiated settlement.
In fact, this submission has been repeated throughout the
counter-affidavit filed on behalf of the Union of India and orally
F it was also submitted that the Union of India was still making
attempts to solve the said disputes through negotiated
settlement.
21. While advancing submissions on the writ petition,
G submissions were also advanced by learned counsel on prayer
(b) in the writ petition praying for a Mandamus to command the
State of Andhra Pradesh from carrying on any work in respect
of the proposed project. Mr. Ramachandran contended that
unless the State of Andhra Pradesh was restrained from
H continuing with the construction of the Side channel Weir and
STATE OF ORISSA v. GOVERNMENT- OF INDIA & ANR. 1007
[ALTAMAS KABIR, J.]
the Flood Flow Canal at Katragada till the constitution of the A
Water Disputes Tribunal, not only would the writ petition become
infructuous, but even the constitution of the Tribunal would
become redundant and meaningless.
22. Replying to Mr. Ramachandran's submissions, Mr. B
Dipankar Gupta referred to the provisions of Sections 9 and
11 of the 1956 Act, and submitted that under Section 11 not
only all Courts, but also the Supreme Court would not be entitled
to exercise jurisdiction in respect of any water dispute which
may be referred to a Tribunal under the Act.
c
23. Mr. Gupta submitted that in view of such bar, if it was
ultimately decided that the dispute between the two States was
a water dispute and the same should be referred to a Water
Disputes Tribunal under the Act, this Court would have no
jurisdiction to pass any orders which were either of an interim D
or transitory nature involving the dispute.
24. In this regard Mr. Gupta referred to the views expressed
by a Constitution Bench of this Court on a Presidential
Reference under Article 143 of the Constitution involving the E
Cauvery Water Disputes Tribunal [1993 Supp (1) SCC 96(11)],
wherein the same question regarding the exclusion of the
jurisdiction of the Supreme Court under Section 11 of the 1956
Act read with Article 262 of the Constitution was under
;J.;
consideration and it was held that the Tribunal could pass F
interim orders in any pending water dispute when a reference
for such relief is made by the Central Government under Section
5(2) of the Act.
25. From the submissions made on behalf of the
respective parties, including the Union of India, it is quite G
evident that the final outcome of this writ petition would depend
·~
upon the decision as to whether the dispute between the State
of Orissa and the State of Andhra Pradesh regarding the
diversion of the Vansadhara river waters by the construction of
H
1008 SUPREME COURT REPORTS (2009] 1 S.C.R.
A the Side Channel Weir and the Flood Flow Canal constitutes
a water dispute within the meaning of Section 2(c) of the 1956
Act. Admittedly, in principle the two States had agreed to the
sharing of the Vansadhara river waters on an equal basis. What
we are called upon to decide is whether the diversion of a
B portion of the river waters into a Side Channel Weir and a
Flood Flow Canal violates the said agreement and if it does,
whether the same would amount to a water dispute between
the two States.
C 26. The said proposal of diverting the waters of the river
was disputed by the State of Orissa from as far back as in
2005, when the construction work on the said two projects had
just commenced. It is not disputed that several joint meetings
were held between the representatives of the two State
D Governments on this issue, including several meetings between
the Chief Ministers of the two States. It is also evident that the
Union of India, to whom the complaint had been made by the
State of Orissa on 13.2.2006, had made attempts to bring about
a negotiated settlement between the two States which did not
E materialize. On the one hand the complaint made by the State
of Orissa remains indisposed of, and on the other, the
construction of the Side Channel Weir and the Flood Flow
Canal and the Neradi Barrage had continued.
27. During the hearing, an amendment made to Section ,._ ~
F 4 of the 1956 Act, which became effective from 28.3.2002, was
brought to our notice. Sub-section (1) of Section 4, which is
relevant for our purpose originally read as follows:
"4. Constitution of Tribunal.- (1) When any request
G under Section 3 is received from any State Government
in respect of any water dispute and the Central
Government is of opinion that the water dispute cannot be
settled by negotiations, the Central Government shall, by
notification in the Official Gazette, constitute a Water
Disputes Tribunal for the adjudication of the water dispute."
H
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 1009
[ALTAMAS KABIR, J.]
After amendment of sub-section (1) by the Inter- State Water A
Dispute (Amendment) Act, 2002, sub-section (1) of Section 4
reads as follows:
"4. Constitution of Tribunal.- (1) When any request under
Section 3 is received from any State Government in B
respect of any water dispute and the Central Government
is of opinion that the water dispute cannot be settled by
negotiations, the Central Government shall, within a period
not exceeding one year from the date of receipt of such
request by notification in the Official Gazette, constitute a c
Water Dispute Tribunal for the adjudication of the water
dispute."
(Emphasis added)
'f
28. What is important in the amendment is that in the event D
of a genuine water dispute between two States a time-frame
has now been fixed for the constitution of a Water Disputes
Tribunal to settle the water dispute. Previously, there was no
such time frame and a request made for constitution of such a
Tribunal could be prolonged indefinitely, as has been done in E
the instant case, without the formation of such a Tribunal or
without rejecting the prayer of the State of Orissa to constitute
such a Tribunal. It is now almost three years since the complaint
>-A was made by the State of Orissa but the Central Government
has not taken any action in the matter. In this scenario, the F
prayer made by the State of Orissa does not appear to be
unreasonable since the dispute between the two States does
not confine itself to the construction of the Side Channel Weir
and the Flood Flow Canal, but primarily it involves the unilateral
decision taken by the State of Andhra Pradesh to divert the G
river waters to the State of Andhra Pradesh, which could
'""'-: possibly disturb the agreement to share the waters of the river
equally.
29. In my view, such a dispute must be held to be a water
H
1010 SUPREME COURT REPORTS [2009) 1 S.C.R.
A dispute within the meaning of Section 2(c) (i) of the 1956 Act,
which refers to any dispute between two or more State
Governments with regard to the use, distribution or control of
the waters of or/in any inter-State river or river valley. Moreover,
the time frame inserted into Sub-section (1) of Section 4 of the
B Act also persuades me to grant the reliefs prayed for by the
State of Orissa since its complaint is pending from 13.2.2006.
30. Coming to the question of grant of interim order during +
the interregnum, I am satisfied that unless some interim
protection is given till the constitution of the Water Disputes
c Tribunal by the Central Government, the objection raised by the
State of Orissa will be rendered infructuous, which certainly is
not the intention of the 1956 Act. Notwithstanding the powers
vested by Section 9 of the Act in the Water Disputes Tribunal
to be constituted by the Central Government under Section 4,
D
which includes the power to grant the interim order, this Court
under Article 32 of the Constitution has ample jurisdiction to
pass interim orders preserving the status quo till a Tribunal is
constituted which can then exercise its powers under Section
9. The bar under Section 11 of the Act will come into play once
E the Tribunal is constituted and the water dispute is referred to
the said Tribunal. Till then, the bar of Section 11 cannot operate,
as that would leave a party without any remedy till such time
as the Tribunal is formed~ which may be delayed.
.I."'
F 31. I, accordingly, allow the writ petition and direct the
Central Government to constitute a Water Disputes Tribunal
within a period of six months from date and to refer to it the
dispute relating to the construction of the Side Channel Weir
and Flood .Flow Canal Project at Katragada on the river
G Vansadhara by the State of Andhra Pradesh for diversion of
the waters of the said river which could adversely affect the
supply of water from the said river to the State of Orissa.
32. I also direct that pending constitution of the Water
Disputes Tribunal and reference of the above dispute to it, the
H
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 1011
State of Andhra Pradesh will maintain status quo as of date A
with regard to the construction of the Side Channel Weir and
the Flood Flow Canal at Katragada. Once the Tribunal is
constituted the parties will be free to apply for further interim
orders before the Tribunal.
B
33. The writ petition is disposed of accordingly.
34. There will be no order as to costs.
MARKANDEY KATJU, J. 1. I have perused the judgment
of my learned brother Ho'n'ble Altamas Kabir, J. in this case C
and I entirely agree with the reasoning, the conclusion and the
directions which have been given therein. However, I wish to
add a few words of my own.
2. The English poet Coleridge in his poem 'The Rime of D
-t the Ancient Mariner' wrote :-
"Water, Water everywhere, but not a drop to drink"
3. This is precisely the situation of the people living in large
parts of India. Despite having immense reservoirs of water in E
the form of the Himalayas in the North and the Arabian sea,
Indian Ocean and the Bay of Bengal in the West, South and
East of India, there are water shortages everywhere often
leading to riots, road blocks and other disturbances and
disputes for getting water. In many cities, in many colonies F
people get water for half an hour in a day, and sometimes not
even that e.g. in Delhi, Tamil Nadu, Rajasthan, U.P., Northeast,
etc .. In large parts of rural areas there is shortage of water for
irrigation ahd drinking purp·ose. Rivers in India are drying up,
ground water is being rapidly depleted, and canals are polluted. G
The Yamuna in Delhi looks like a black drain. Several perennial
rivers like the Ganga and Brahamputra are rapidly becoming
seasonal. Rivers are dying or declining, and aquifers are getting
over-pumped. Industries, hotels, etc. are pumping out
H
1012 SUPREME COURT REPORTS (2009] 1 S.C.R.
A groundwater at an alarming rate, causing sharp decline in the
groundwater levels. Farmers are having a hard time finding
ground water for their crops e.g. in Punjab. In many places there
are serpentine queues of exhausted housewives waiting for
hours to fill their buckets of water. In this connection John
B Briscoe has authored a detailed World Bank report, in which
he has mentioned that despite this alarming situation there is
widespread complacency on the part of the authorities in India.
4. Often there are disputes between States in India relating
C to the waters of inter State rivers, as in the present case. To
resolve these disputes Parliament has enacted the Inter State
Water Dispute Act, 1956, which was amended in 2002. This
Act has provided for a mechanism for resolving such water
disputes between States through Tribunals constituted under
Section 4 of the Act.
D
5. Experience has shown that while such Tribunals have
played a role in resolving such disputes to a certain extent, but
they have not, and cannot resolve the water shortage problem
permanently. For instance if there is a dispute between State
E A and State B relating to water, and if the Tribunal decides in
favour of State A then the farmers and persons living in urban
areas in State B often resort to agitations which may even lead
to violence. Hence the real solution of the water shortage
problem in the country can only lie in utilizing the immense water
F reserves in the sea and in the snow mountains by scientific
methods. Rain water must also be scientifically managed.
6. As regards sea water, the basic problem is how to
convert saline water into fresh water through an inexpensive
G method. The methods tried till now have been distillation and
reverse osmosis, but these are expensive methods. We have
to find out inexpensive methods for this, by scientific research.
Similarly, the immense water reserves in the Himalayas in the
form of ice can be utilized for the people of the North and
H Central Indian States.
STATE OF ORISSA v. GOVERNMENT OF INOIA & ANR. 1013
[MARKANDEY KATJU, J.]
7. In my opinion, it is science which can solve this problem. A
8. It is indeed sad that a country like India which solved
the problem of town planning 6000 years ago in the Indus Valley
Civilization and which discovered the decimal system in
Mathematics and Plastic Surgery in Medicine in ancient times, 8
and is largely managing Silicon Valley in U.S.A. today has been
unable to solve the problem of water shortage till now. In my
opinion there is no dearth of eminent scientists in the field who
can solve thi~ problem, but they have not been organized and
brought together and not been requested by the Central and C
State Governments to solve this problem, nor given the facilities
for this.
9. In my opinion the right to get water is a part of right to
life guaranteed by Article 21 of the Constitution. In this
connection, it has been observed in Delhi Water Supply & D
Sewage Disposal Undertaking and Anr. vs. State of Haryana
and Ors. 1996(2) SCC 572 :
"Water is a gift of nature. Human hand cannot be
permitted to convert this bounty into a curse, an E
oppression. The primary use to which water is put being
drinking, it would be mocking nature to force the people
who live on the bank of a river to remain thirsty" ......... .
10. Similarly in Chameli Singh & Ors. vs. State of U.P. & F
Ors. 1996(2) SCC 549 this Court observed :
" .......... Right to live guaranteed in any civilized society
implies the right to food, water, decent environment,
education, medical care and shelter. These are basic
human rights known to any civilized society. All civil, G
political, social and cultural rights enshrined in the
Universal Declaration of Human Rights and Convention or
under the Constitution of India cannot be exercised without
• these basic human rights." .......... .
H
1014 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 11. The same view was taken in several other decisions
by this Court in various other decisions.
12. I, therefore, recommend to the Central Government to
immediately constitute a body of eminent scientists in the field
8 who should be requested to do scientific research in this area
on a war footing to find out scientific ways and means of solving
the water shortage problem in the country. This body of
scientists should be given all the financial, technical and +
administrative help by the Central and State Governments for
C this purpose. They should be requested by the Central and State
Governments to do their patriotic duty to the nation in this
connection, and by scientific research to find out the ways of
solving the water shortage problem in the country. The help and
advice of foreign scientific experts and/or Indian scientists
settled abroad who are specialized in this field may also be
D taken, since the solution to the problem will not only help India
but also foreign countries which are facing the same problem,
some of which may already have progressed significantly in this
area.
E 13. In particular this body of scientists should be requested
to perform the following tasks :
(i) To find out an inexpensive method or methods of
converting saline water into fresh water.
F
(ii) To find out an inexpensive and practical method of
utilizing the water, which is in the form of ice, in the
Himalayas.
(iii) To find out a viable method of utilizing rain water.
G
(iv) To utilize the flood water by harnessing the rivers
so that the excess water in the floods, may instead
of causing damage, be utilized for the people who
are short of water, or be stored in reservoirs for use
H when there is drought. ·
STATE OF ORISSA v. GOVERNMENT OF INDIA & ANR. 1015
[MARKANDEY KATJU, J.]
14. In my opinion the Central Government should constitute A
such a body of scientists immediately and give them all the help
failing which the hardships of the ·people of India will further
increase causing great suffering and social unrest everywhere.
The problem brooks no delay for being addressed not even for
a day. B
15. In the end I would like to quote the couplet of the great
Hindi poet Rahim:
"~lR "Ql;fi ~ftr~.~or "Ql;fi ~" ~or
c
"Ql;fi Tf~ OfT \JioR, lflcft, 'lfl:!,ff. 'l"Of"
"Rahiman paani raakhiye, bin paani sab soon
Paani gaye na oobrey, moti, manush, choon"
D
R.P. Writ Petition disposed of.
•
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