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REPORTABLE

IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

ORIGINAL SUIT NO. 1 OF 2006

State of Andhra Pradesh                     ……  Plaintiff

   Vs.

State of Maharashtra & Ors.               ……  Defendants

WITH

WRIT PETITION [C] NO. 134 OF 2006 WRIT PETITION [C] NO. 210 OF 2007 WRIT PETITION [C] NO. 207 OF 2007  

AND CONTEMPT PETITION [C] NO. 142 OF 2009  

IN ORIGINAL SUIT NO. 1 OF 2006

JUDGMENT

R.M. LODHA, J.  

Original Suit No. 1 of 2006

Two riparian states  –  Andhra Pradesh and Maharashtra  –  of  the  

inter-state Godavari river are principal parties in the suit filed under Article  

131 of the Constitution of India read with Order XXIII 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  1

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agreements dated 06.10.1975 and 19.12.1975 which were endorsed in the  

report dated 27.11.1979 containing decision 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  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.  

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  

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.  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  2

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confluence,  Maharashtra  constructed  the  Paithan  Dam  

(Jaikwadi Project) to utilize the flows available up to that site.  

Further downstream, the river while in Maharashtra, receives  

waters  of  Sindphana,  Purna and Dudhna tributaries.  At  the  

border between Maharashtra and Andhra Pradesh, Godavari  

receives the combined waters of Manjra (Manjira), Manar and  

Lendi rivers. After it  enters Andhra Pradesh, at a distance of  

764 Km. (475 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-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 Purna and the Manjra but includes that 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  with the Godavari including the catchment areas of the Mula  and other tributaries of the Pravara.   

G-3   Purna:—This sub-basin includes the entire catchment  of the Purna and of all its tributaries.

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  Tirna,  the  Karanja,  the  Haldi,  the  Lendi,  the  Manar  and  other  tributaries.

G-5  Middle Godavari:— This sub-basin comprises the river  Godavari  from  its  confluence  with  the  Manjra  to  its  

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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.

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 well  defined and well  spread as that of South  

West monsoon.

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 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 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 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  

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pendency  of  disputes  before  the  Tribunal,  an  agreement  (which  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 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  

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 639th km. of the Godavari river  

from its  origin.  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 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 to be utilized under the project to  

cater to the needs of the backward districts of Telangana.  Andhra Pradesh  5

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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 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,  

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  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 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 barrage gets filled up and surpluses.  

According  to  Andhra  Pradesh,  Babhali  barrage  is  being  built  by  

Maharashtra with storage capacity of 2.74 TMC.  The necessity to file suit  

arose  since  all  the  efforts  made  by  Andhra  Pradesh  in  stopping  

construction  of  Babhali  barrage  by  Maharashtra  failed  and  despite  6

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pendency  of a writ petition before this Court in the 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 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  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 the Godavari,  

and below Siddheswar dam site on the Purna, 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,  

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 this  

stretch of the basin, number of storages and the sizes of such storages  

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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.  

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 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 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 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  

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 is  located on the main  

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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 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 schemes had been constructed by it during 1972 to 1975 for 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 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 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 by about December.  The gates of  

Babhali barrage are, therefore, proposed to be kept open during monsoon  9

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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 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 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 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.

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?      2) Whether the Lis in the present suit is a ‘water dispute’  involving merely the interpretation of the agreement dated  6.10.1975? 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  

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subject of the agreement dated 6.10.1975, though the said  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 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 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 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? 9) In  any  event,  whether  in  view  of  several  disputed  questions of fact and of a technical  nature involved in the  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?

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 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).

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  19.12.1975  among  the  

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Godavari riparian states, copy of Godavari Water Disputes Tribunal Award,  

list of projects existing/cleared and contemplated projects showing demand  

of 91.80 TMC by Maharashtra below Paithan, below Siddheswar and below  

Nizamsagar put forth before Tribunal, clearance of the Pochampad Project  

(Sri  Ramasagar Project)  Stage-I by CWC, clearance of the Pochampad  

Project  (Sri  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 CWC, minutes of the inter-state  meeting between the two  

States  held  on 05.10.2005 at  CWC,  summary  record of  discussions  of  

inter-state   meeting  between  the  Chief  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 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,  IMD,  Pune dated  23.08.2007  

addressed to Chief Engineer, IS & WR, Government of Andhra Pradesh  

and the 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 before 06.10.1975, copy  

of  schematic  diagram,  copy  of  minutes  of  meeting   dated  21.09.2006  12

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convened by CWC 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  

(42+60)   TMC area for  past  12 years by Maharashtra produced before  

CWC   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 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 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  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

22. The  vital  question  for  consideration  is  Maharashtra’s  

entitlement  to  construct  any  project  within  the  water  spread  area  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  13

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interpretation  of  the  bilateral  agreement  entered  into  between  Andhra  

Pradesh and Maharashtra on 06.10.1975.  

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, II(i),II(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 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 without any restraint taking into consideration  

that  Maharashtra  had agreed to  submersion of  its  land for  Pochampad  

project.  To  meet  the  demand  and  requirement  in  the  defined  region  

between Paithan and Pochampad projects, Maharashtra had agreed to a  

cap  on  its  utilization  to  60  TMC  in  addition  to  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  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  14

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has no right to water in 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 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  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 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 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 context of rights of states in the inter-state river water. The  

expressions “Godavari river basin” and “Godavari drainage basin” used in  15

Page 16

the award  mean the entire  area  drained  by  the  Godavari  river  and its  

tributaries.

25. Learned senior counsel for Andhra Pradesh  argued 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 starting from the concrete dam structure up to the area of the  

water stored. He would submit that  Clauses I and II(i) of the agreement  

deal  with waters in the area of  Godavari  basin allotted to Maharashtra.  

Clause II(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  means  and  includes  the  entire  area  drained  by  the  

mainstream 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-V];  

pages 292 and 293. 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 Pochampad site.         

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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 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 regard, he  relied upon a  

decision of  this Court in  Orient Papers & Industries Ltd.  and another v.  

Tahsildar-cum-Irrigation Officer and others1.

27. Learned senior  counsel  submitted that the phrases,  “below  

Paithan dam site  and Siddheswar  dam site”  in  Clause II(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 site” in Clause I and “balance waters up to Pochampad dam  

site”   in  Clause II(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  will  be entitled  to  

waters mentioned in Clause II(i) and Andhra Pradesh the balance of waters  

which includes the storage of Pochampad up to FRL of 1091 feet.

1  1998 (7) SCC 303 17

Page 18

28. Learned senior  counsel  for  Andhra Pradesh submitted  that  

there  cannot  be  lake/pondage  of  a  project  of  one  state  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 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  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.

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 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 without the consent of  18

Page 19

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 to utilize 60 TMC of  

water  on  Godavari  river  leaving  the  balance  to  be  utilized  by  Andhra  

Pradesh. Under Clause II(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.  Clause  II(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,  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  

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.

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30. In response to the contention raised by Andhra Pradesh that  

there is limitation on the use of the water by Maharashtra in Clause II(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  places of the award in which it is found, namely, in  

Clause II(i), II(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  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 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 Purna. 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 Purna and below Nizamsagar  dam site on the Manjira 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 present sanctioned or cleared utilization, as  the case may be. (ii) Andhra  Pradesh  can  go  ahead  with  building  its  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  bear  the  cost  of  acquisition,  the  cost  of  rehabilitation  of  the  displaced  

20

Page 21

families and the cost of  construction of some bridges and  roads that may become necessary. Maharashtra also agrees  to the submergence of the river and stream beds. III.    (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 may be. (ii) Andhra  Pradesh  can  withdraw  4  TMC  for  drinking  water supply to Hyderabad city from their proposed Singur  Project on the Manjira. (iii) Andhra Pradesh can construct Singur Project with 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  regard to the use proposed by Karnataka in the Manjira sub- basin upstream 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. VI. Maharashtra and Andhra Pradesh agree in principle  to  the  taking  up of  the Inchampalli  Project with  F.R.L.  as  commonly  agreed  to  by  the  interested  States,  viz.,  Maharashtra, Andhra Pradesh and Madhya Pradesh. VII. Maharashtra and Andhra Pradesh agree to take up  the  following  Joint  Projects  at  the  appropriate  time  with  agreed utilizations:

a). Lendi Project b). Lower Penganga Project. c). Pranahita Project

and to set up joint committees for this purpose.

VIII. 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.”

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  

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Page 22

were  entered  into  during  the  pendency  of  water  disputes  before  the  

Tribunal.  For proper 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 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 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 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-

Godavari Commission (“Commission”). The Commission found that without  

further  data  it  was  not  possible  to  determine  the  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  of  the  22

Page 23

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 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  government  tried  to  settle  the  dispute  by  

negotiations.  Several  inter-state  conferences  were  held  but  no  solution  

could fructify. 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-State  Godavari  river  and  river  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,  Inchampalli,  Swarna  and  Suddavagu  projects  of  Andhra  

Pradesh.  

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  23

Page 24

declaration  that  1951 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 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 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  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 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  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,  24

Page 25

Madhya Pradesh, Orissa and Andhra Pradesh, received them in evidence  

and held that by these agreements 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  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 Paithan dam  

site  on the Godavari river and below Siddheswar dam site on the Purna  

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 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.

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  25

Page 26

objected  to  the  Tribunal’s  proceeding  to  give  its  decision.  However,  

counsel for Maharashtra admitted before the Tribunal that the agreements  

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  

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 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  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 Pradesh involving submergence 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.  

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Page 27

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  carried out:—

A.   Agreement dated the 19th December, 1975 between the  States of Karnataka, Maharashtra, Madhya Pradesh, Orissa  and Andhra Pradesh annexed hereto and marked 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) Agreement between the States of Maharashtra  and Andhra Pradesh on the 6 th Oct. 1975—Annexure  II. (c) xxx xxx xxx (d) xxx xxx xxx”    

40. Clause VII 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 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  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 Pradesh and the  

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Page 28

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 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  

between  the  parties  which  referred  to  utilizations  through  

existing/sanctioned or cleared schemes. The central government requested  

the Tribunal 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 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  

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, mainly, the upper  28

Page 29

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 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”.

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-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 on the basis of the agreements of  

the 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 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  29

Page 30

that the Tribunal should base its decision on the agreements of the 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 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  

thereafter  forms  a  common  boundary  between  Andhra  Pradesh  and  

Madhya Pradesh and finally runs in Andhra 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 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  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  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 present sanctioned or cleared utilization, as the case may be. 30

Page 31

47. 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.  The  debate  has  mainly  

centered  around  these  two  Clauses,  namely,  Clause II(i) and  Clause  

II(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  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. 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 and the flowing waters.

48. The words “from the waters in the area of Godavari basin” in  

Clause II(i) have two significant expressions, one, ‘Godavari basin’ and the  

other, ‘in the area of’.   The expression “Godavari basin”  along with the  31

Page 32

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  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  sites  

mentioned  in Clause II(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  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 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 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  32

Page 33

or  more  states,  they  have assistance of  competent  legal  and technical  

minds 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  by  Maharashtra  within  its  territory  in  Clause  II(i),  the  

interpretation put by Andhra Pradesh to this Clause cannot be accepted.    

50. 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.   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. Seen thus, in  

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  on  dichotomy  of  two  sources  of  waters.  On  careful  

reading  of  Clause  II(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 site” signifies that parties agreed  33

Page 34

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.

51. The contention of Mr. K. Parasaran, learned  senior counsel  

for  Andhra Pradesh that up to Pochampad dam site  in  Clause II(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” 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 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  channel  at  right  angles  to  the  thread  of  the  stream,  and  intended  to  retard  the  flow of  water  by  the  barrier,  or  to  retain it within the obstruction.”           

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  designate the pond of water created by its obstruction. The  

2  87 P. 151, 153, 48 Or. 444 3  19 N.J. Eq. (4 C.E.Green) 245, 248

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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.”

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 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)  retention  of  debris;  (f)  flood  control;  (g)  domestic,  municipal  and  induses;   (h)  preservation of wild life and pisciculture, (j) recreation, etc.”

  51.3. Glossary of Irrigation and Hydro-Electric Terms and Standard  

Notations  used  in  India,  Third  Edition,  published  by  Central  Board  of  

Irrigation and Power, explains “dam” as under :

“Dam  :  A  structure  erected  to  impound  water  in  a  reservoir or to create hydraulic head.”

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”.

51.5. “Introduction to dams”, Publication No. 220 by Central 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:  

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“A dam is a structure meant to retain water. Only hydraulic  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   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 and  closed by a ring embankment; in this case, we speak about  an “embankment” rather than about a “dam”. 2. Generally, the dam is set-up on  a river. But  it  can be  constructed  in  a  dead  valley  where  only  a  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”  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  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:

“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: • to cut down the floods • to raise low waters • to  guarantee  a  discharge  higher  than  that  of  the  low  

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  restore the continuity and the regularity of the discharge;  such  a  dam  or  reservoir  is  then  called  “dam”  or  “compensating reservoir”.

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52. 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 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 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 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 II(i) that provides that Maharashtra can utilize  

waters not exceeding 60 TMC for new projects from the waters in the area  

of  the  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.  

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  new  projects  and  in  no  case  37

Page 38

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. 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  impliedly  in  Clause  II(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 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 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 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  purpose  of  reservoir,  tanks,  etc.,  and  other  structures  occupied by or on behalf of the State Government on such  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  

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reservoir.  Viewed thus, irrigation work would include land  used for such purpose. In this case the finding recorded 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 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  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  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  

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 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.

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55. Generally, there cannot be a dam within a dam.  This 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 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  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 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 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.   

56. Clause VII and Clause III(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 inconsistent with the order of the Tribunal shall not be  40

Page 41

impaired. Clause III(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 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 mentioned in Clause II(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 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  

Oregon4 has exposited two principles, one, a contest between the states is  

to be settled in the large and ample way 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 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  4  297 US 517

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complaining  state  has  to  establish  that  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  the  Court  in  granting  injunction.  We  shall  consider  

whether burden 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.  

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 Pradesh that invasion of water spread area by construction  

of Babhali barrage would significantly deprive inhabitants 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 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, thereby exceeding its  entitlement  of  60 TMC; (c)  42

Page 43

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  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 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 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 water from it would  

result in Maharashtra drawing from a source over which it has no right.

61. On the other hand, Maharashtra says that it was using water  

within its territory which is now part of Pochampad storage prior to 1975 by  

lift  irrigation schemes. Babhali  barrage 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  43

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the Godavari river up to the present Babhali barrage and they were 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 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 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 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 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  water  to  Andhra  

Pradesh by releasing the same on 1st March every year. Maharashtra has  44

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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  

supervise that the gates are lowered on the 28th October each year and will  

remain in operation till  the end of June next year 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 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  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  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.”    

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  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.  

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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  this  requirement,  it  was  decided  in  1995  to  create  a  small   pondage  at  Babhali  to  assure  and  regulate  the  needed  supplies.”   

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  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  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,  Pochampad  storage  recedes  totally  away  from  Maharashtra’s  territory  and  therefore  the  pondage at Babhali  during operation does not interfere or  encroach  with  the  Pochampad  storage  of  Andhra  Pradesh…..”  

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 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 of which is  already in existence by various lifts 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  112 TMC live storage of Pochampad at FRL+1091  feet(330.56  m.).  This  0.6  TMC  overlapping  small  storage at the upstream end of Pochampad Reservoir  

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is in any case going to be silted up very soon making  overlapping storage negligible.

(v) The contention  that  between Babhali  Barrage crest  level 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  

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  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.

(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  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  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 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,  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  

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Maharashtra  has  not  planned  to  install  any  such pumps at Babhali.”

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  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 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.  

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 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 of 0.60 TMC  which is just 0.54% of the storage of SRSP. Command area  of Babhali barrage is 7995 ha.”

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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 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  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 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  Maharashtra.

67. Maharashtra agreed to examine the above suggestions and  

submit the proposal for consideration in the next meeting.

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:

“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. 2. Babhali  barrage  to  be  constructed  with  2.74  TMC  capacity and the gates to be lowered on 28 th October. This  proposal  was not  acceptable  to  Govt.  of  Andhra  Pradesh  because  they  maintained  that  Babhali  barrage  is  an  

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encroachment into the submergence area of Sri Ram 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 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,  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 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  336.5m,  resulting  in  a  reduction of the height of the gates by 1.5 m. This proposal   was also not acceptable to Govt. of Andhra 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, 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  of Govt. of Maharashtra and keeping in view the objectives  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  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 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.

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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 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  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.

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,  CWC in the Inter-state meetings held on  

11.07.2005  and  05.10.2005  have  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 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.  

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  

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regard,  Mr.  K.  Parasaran,  learned  senior  counsel  for  Andhra  Pradesh  

brought to our notice the 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 CWC on 03.03.2006. In the  

meeting of the Chief Ministers of Andhra Pradesh and Maharashtra held on  

04.04.2006, it  was decided 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 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 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 compelled to file contempt petition.

72. There may be some merit in the grievances of Andhra 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  52

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of Maharashtra and direct Maharashtra to  remove the installed gates.  In  

our view, 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 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 MM3  

(i.e. 54.29 TMC) to 77.39 MM3 (i.e. 2.73 TMC) in 75 per cent years of the  

37  years  series  project.  This  enables  Maharashtra  to  appropriate  more  

than 2.74 TMC in 74 per cent 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 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 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  

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effect of depleting Andhra Pradesh’s entitlement to the 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  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 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 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.

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 to May 31 which does indicate that on 75  

per  cent  dependable  flow,  the  total  yield  for  this  period  is  2.733 TMC  54

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(77.39 MM3).  We find no justifiable reason to discard the discharge data  

observed by CWC for 36 years.   

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  

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 Maharashtra of the projects sanctioned after 06.10.1975 is  

59.11270 TMC.  In any case, Maharashtra has to ensure that it does not  

exceed  the  restriction  placed  upon  its  utilization  in  Clause  II(i)  of  the  

agreement dated 06.10.1975.

77. In  the  minutes  of  19.05.2006  of  the  technical  committee  

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 CWC clearly indicates that the monthly yield  

from 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. 55

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78. Maharashtra’s  assertion  that  Babhali  barrage  will  trap  

maximum 0.6 TMC of the Pochampad storage is not a new 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 record,  

“storage of Babhali barrage is well within the banks. The 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 Sri Ram  

Sagar Project  and that of Babhali  barrage are 112 TMC and 2.74 TMC  

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 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  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  56

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as  much  as  the  inhabitants  of  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 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.  

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 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 to ensure efficient,  

speedy and economical  investigation and 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. There is no  

reason  why  supervisory  committee  cannot  oversee  the  compliance  of  

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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  our  

findings as follows :

(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 Purna  

and  below  Nizamsagar  dam 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 thrust of the parties in Clause II(i) of the agreement  

dated 06.10.1975 and the essence of this Clause is to put a  

cap on 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 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.

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(iii) 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 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 from the storage of Pochampad project  

as alleged by Andhra Pradesh.

(iv) Alternatively, 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  for  new  

projects  by  Maharashtra  from  below  the  three  dam  sites  

mentioned in Clause II(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, 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  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.  59

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83. However,  a  three  member  supervisory  committee  is  

constituted. The committee shall have one representative from the Central  

Water  Commission  and  one  representative  each  from  the  two  states,  

Andhra Pradesh and Maharashtra.  The representative  of  Central  Water  

Commission shall  be Chairman of the committee.  The Committee shall  

select  the place for its  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) The  committee  shall  surprise  the  operation  of  the  Babhali  

barrage.

(ii) The  committee shall ensure that;

(a)  Maharashtra  maintains  Babhali  barrage   storage  

capacity of 2.74 TMC of water out 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 October 28 and there is  no  

obstruction  to  the  natural  flow  of  Godavari  river   during  

monsoon season below the three dams mentioned in Clause  

II(i)  of the agreement dated 06.10.1975 towards Pochampad  

dam.

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(c)    During the non-monsoon season i.e., from 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 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  Andhra  

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 of Vishnupuri project upstream and 0.6  

TMC remains  the intercepted storage of Babhali barrage.

84. Suit and IA Nos. 13 and 15 are  disposed of as above with no  

orders as to costs.

W.P.(C) No. 134/2006, W.P.(C) No. 210/2007 AND W.P.(C) No. 207/2007  

85. We have heard Mr. A.K. Ganguli, learned senior 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 Maharashtra.

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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. 210 of 2007 and IA No.  

1 in Writ Petition © No. 207 of 2007 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  not  

inclined  to  consider  the  Contempt  Petition  on merits.  It  is  disposed  of  

accordingly.

    …………………….J.               (R.M. Lodha)

   …………………….J.               (T.S. Thakur)

                       .…………………….J.    (Anil R. Dave)

NEW DELHI FEBRUARY  28, 2013.   

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