I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. No.95384 of 2019 in  

ORIGINAL SUIT NO.1 OF 2018

 STATE OF TAMIL NADU    …Plaintiff

VERSUS

STATE OF KARNATAKA AND ANOTHER  …Defendants

O R D E R

Uday Umesh Lalit, J.

1. This Suit  has been filed on 18.05.2018 by State of  Tamil  Nadu

under Article 131 of the Constitution of India against State of Karnataka

and Union of India submitting inter alia,

A] “2. The  plaintiff  (State  of  Tamil  Nadu),  and Defendant  No.1  (State  of  Karnataka)  are  the  two riparian States among the three basin States and the union territory of Puducherry in which the Inter-State River  Pennaiyar  flows.   As  a  riparian  State,  the Plaintiff is entitled to and has been using the waters of the  river  Pennaiyar  and  its  tributaries/rivulets,  etc., except  for  the  reasonable  beneficial  use  of  the  1st

Defendant.   The  extent  of  the  rights  of  the  Party States, in the use, control and distribution of waters of the Inter State River, is recognized in an agreement of

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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1892 entered into between the then State of Madras and  Mysore  (hereinafter  referred  to  as  1892 Agreement),  the  predecessor  States  of  Tamil  Nadu and Mysore/Karnataka respectively.   

3. The 2nd Defendant, Union of India is duty bound to  ensure  that,  none  of  the  riparian  States  steal  a march over the other by undertaking construction or execution  of  any  works,  either  small  or  big,  or construct a Check Dam or diversion structure relating to the  use,  control  and distribution  of  waters  of  an Inter-State  River  either  in  the  main  river  or  its tributaries/sub-tributaries which may defeat the right of one of the riparian States.  

4. The  1st Defendant  has  taken  up  five  different works  in  the  Pennaiyar  river  Basin  of  Karnataka, affecting the natural flows of the river namely,

i) Construction of a pumping scheme to pump the waters  of  Pennaiyar  river  from  Thattanur (Tattanur) village, Malur taluk, Kolar district to Lakkur  Tank,  which  is  at  about  65  ft.  higher elevation, for distributing the water to about 160 tanks through underground PVC pipeline,

ii) Lift  irrigation  scheme  at  Ellamallappa  Chetty tank  (Yellamallappa  Chetty  tank)  for  pumping 22  MLD  (284  Mcft.)  of  water  to  fill  up  the Hoskote tank, which is located upstream, using 3 Nos. of 120 HP motors.

iii) Pump water  from the  main  Pennaiyar  river  at Belahalli  (Byalhalli)  village  for  irrigation purpose,

iv) Diversion  of  surplus  waters  of  Varathur  Tank (Vartur Tank) to Narsapur Tank in Kolar district by pumping through 2.5 m diameter pipeline and also implementation of pumping schemes to fill the tanks in Kolar district and  

v) Construction of a reservoir of 500 Mcft storage capacity, across Markandeya river, a tributary of

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Pennaiyar  river,  near  Yargol  village,  just upstream of Karnataka – Tamil Nadu border by Karnataka  Urban  Water  Supply  and  Drainage Board.

5. The  projects  undertaken  by  the  1st Defendant would  severely  affect  the  livelihood  of  lakhs  of farmers in Krishnagiri, Dharmapuri, Thiruvannamalai, Villupuram and Cuddalore districts of Plaintiff State as  the  flow  of  the  river  will  be  drastically reduced/hampered  besides  affecting  the  drinking water needs of the Plaintiff state.”

B] The plaint narrates certain works taken up by the first defendant

as under:-

“12. The  river  Markandeyanadhi  is  a  tributary  of Pennaiyar  river  which  originates  in  Karnataka  and enters  Tamil  Nadu  near  Sigaralapalli  village,  in Krishnagiri  District  and  joins  with  Pennaiyar  after traversing a distance of about 29.4 km in Tamil Nadu, upstream  of  Krishnagiri  Reservoir.   The  sub  basin area of the Markandeyanadhi falling in Karnataka is about 150 sq.km.  The average annual rainfall in that area is  about  730 mm.  The lower riparian State is entitled to realization of flow from the upstream areas. There  are  four  Anicuts  across  Markandeyanadhi  in Tamil Nadu, viz., Sigaralapalli Anicut, Marasandiram Anicut,  Beemandapalli Anicut and Kollapatti  Anicut having a total ayacut of 870.55 ha. (2150 acres).  The 1st Anicut  across  Markandeyanadhi  is  Sigaralapalli Anicut which is at a distance of about 1.9 km from the Karnataka  –  Tamil  Nadu  State  border,  near Sigaralapalli village.  This anicut is said to have been constructed  during  the  Berigai  Zameen  Regime  of Pre-Independence days, which is evidenced by way of dilapidated brick masonry and stone masonry which are  still  available.   It  was  rehabilitated  in  the  year 2008.   The  ayacut  irrigated  by  this  Anicut  in  the Plaintiff  State  is  115.60  ha.  (or  286  acres).   It  is submitted that if any check dam or diversion structure is  taken  upstream  of  these  Anicuts  by  the  1st

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Defendant, the ayacut irrigated by the above referred four Anicuts will be affected.

13. The Secretary of  the  Plaintiff  State,  vide,  letter dated 09.03.2012 to the 1st Defendant,  stated,  inter- alia, that it has planned to divert Pennaiyar waters at Orathur through Mindchalli tank and to distribute the water to about 160 tanks in Malur taluk, and that the Pennaiyar, an inter-State river is one of the 15 rivers named  in  the  Schedule  –  A of  the  Madras-Mysore Agreement of 1892 and as per Clauses II and III of the Agreement, the 1st Defendant shall not without the previous  consent  of  the  Plaintiff  State  take  up  any new irrigation works etc., for execution and requested to furnish the full details of the proposal.   

14. It  is stated that a news item appeared in Indian Express, Chennai Edition dated 23.02.2012 wherein it was reported that 1st Defendant planned to block the flow of water to the Pennaiyar river altogether.  The water  thus  blocked  is  sought  to  be  diverted  to replenish  some  160  tanks  in  the  Malur  taluk  in Karnataka, which is emerging as a ‘vegetable basket’ in the region.”

C] The plaint  then refers to various communications between the

parties and recites:-

“22. The  Plaintiff  came  to  know  that  the  1st

Defendant  was proposing to  construct  a  check dam across  Markandeyanadhi,  a  tributary  of  Pennaiyar river,  near Yargol village which is stated to provide drinking  water  supply  to  the  villages  nearby.   The concerned Executive Engineer, WRD, of the Plaintiff State,  visited  the  site  on  22.05.2013  and  found  the preliminary works for the Anicut were going on.  The display  board  put  up  at  the  site  revealed  that  the Anicut  work  is  being  undertaken  across Markandeyanadhi  near  Yargol  village  in Bangarapettai  Taluk  to  supply  drinking  water  to Kolar,  Bangarapettai,  Malur  towns  and  45  enroute villages  by  Karnataka  State  Water  Supply  and

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Sanitary  Board,  Bangalore.   The  details  of  the proposed Anicut found in the display board was that the length of Anicut is 414 m, with a water storing capacity of 500 Mcft,  with project  cost  is  Rs.87.18 Crore.  The location of the Anicut is at a distance of approximately,  9.0  km  from  the  Inter  State  border which includes a distance of 2.5 km in the forest area and the location of the site is in the forest area.  If 1st

Defendant  constructs  the  Anicut  across Markandeyanadhi  with  a  capacity  of  500 Mcft,  the flows in the Markandeyanadhi at the entry point in the border of Tamil Nadu, will get seriously affected.”

D] Under the caption “Jurisdiction”, the plaint states:-

“46. This  Hon’ble  Court  has  original  jurisdiction under Article 131 of the Constitution to entertain the present Suit.   The inter-State Agreement of 1892 is binding on the party States and the rule of law forbid the 1st Defendant form taking any action in violation of the said Agreement.  Thus, there exists a dispute between  the  Plaintiff  and  the  Defendants,  which involves a question of law and fact with regard to the common  law  rights  pertaining  to  construction  of various works executed or being taken up by the 1st

Defendant to the detriment of Plaintiff State.  The 1st

Defendant notwithstanding the request of the Plaintiff State  failed  to  even  share  the  details  of  the schemes/works  undertaken by it  is  proceeding with construction activities.  Further, the 2nd Defendant has failed  to  take  action  on  the  request  of  the  Plaintiff State.”   

E] Finally, it is prayed:-

“a) Declare  that  the  unilateral  action  of  the  1st

Defendant,  in  proceeding  to  construct/having proceeded to construct  new Check Dams/Dams and diversion  structures  across  the  Pennaiyar  river  its tributaries, Streams etc to divert the water by gravity or pumping, and pumping from tanks surplusing into

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the Pennaiyar river or its tributaries without obtaining the prior consent of the Plaintiff State is illegal and violates the fundamental rights of the inhabitants of the Plaintiff State;

b) Grant  permanent  injunction  restraining  the  1st

Defendant, from proceeding with the construction of Check  Dam/Anicut  across  Markandeyanadhi  near Yargol  village  in  Bangarapettai  Taluk  and construction of check dam/diversion structure across the Pennaiyar river and its  tributaries,  and pumping water from them to the existing tanks in the Pennaiyar basin by the 1st Defendant;

c) Direct  the  1st Defendant  to  ensure  the  natural flows in the Pennaiyar river and its tributaries to the Plaintiff State:

d) Grant  mandatory  injunction  directing  the  2nd

Defendant to take action on the Plaintiff’s letter dated 16.03.2018  with  reference  to  construction  of  Dams and  diversion  structures  and  pumping  schemes undertaken  by  the  1st Defendant  in  the  Pennaiyar river; and  

e) Pass such further decree or  decrees or  order  or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

2. In its Written Statement filed on 05.12.2018, the second defendant-

Union of India submitted:-

“It  is  pertinent  to  mention  that  no  request  for appointment  of  Arbitrator  under  Rule-IV  of Agreement 1892 has been received from either State Government  in  this  regard  and  action  as  per  the agreement could not be taken so far by the Central Government.  

…

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…..Under Section 3 of Inter-State River Dispute Act, 1956,  the  State  Government  may send a  request  to Central  Government  stating  that  water  dispute  has arisen or is likely to arise by reason of the fact that the interests  of  the  State,  or  of  any  of  the  inhabitants thereof,  in the waters of an Inter-state river or river valley  have  been,  or  are  likely  to  be,  affected prejudicially.   This  Act  provides  for  setting  up  of Water Disputes Tribunal for adjudication of disputes relating to Inter-State Rivers when negotiations do not lead o fruitful results.  However, no request from any of the State Governments has been received under the provision of the ISWD Act, 1956.”

3. In its Written Statement filed in March 2019, the first defendant

has submitted interalia:-

“2. Article 262 of the Constitution of India specifies that  Parliament  may  by  law  provide  for  the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters or in any  inter  State  river  or  river  valley  and  that, Parliament  may  by  law  provide  that  neither  the Supreme  Court  nor  any  other  court  shall  exercise jurisdiction  in  respect  of  any  such  dispute  or complaint.   Pursuant  to  Art.  262,  Parliament  has promulgated the Inter State River Water Disputes Act, 1956  (ACT for  short)  for  adjudication  of  disputes relating  to  waters  of  Inter  State  rivers  and  river valleys.   Section  11  of  the  Act  specifies  that notwithstanding anything contained in any other law neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to the Tribunal under the Act.

3. The dispute sought to be raised by the State of Tamil Nadu relates to distribution of water of South Pennaiyar  river,  which  is  an  inter-state  river originating  in  the  State  of  Karnataka  and  running through the States of Tamil Nadu and Union Territory of Puducherry.  In fact, the Pennaiyar river, which is

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also known as South Pennar river also receives water from some of the tributaries originating in the State of Andhra Pradesh.   The entire dispute is  an interstate water  dispute.   Therefore  the  suit  is  not  at  all maintainable and is liable to be dismissed in limine.   

…

6. The main grievance of the State of Tamil Nadu is that the State of Karnataka has violated the terms and conditions of the Agreement of the year 1892.  It is submitted that  the  Agreement  of  the  year  1892 has been  further  modified  and  amended  as  per  the Agreement of the year 1933.  The State of Karnataka has not violated any of the terms and conditions either of the 1892 Agreement or the 1933 Agreement.  It is further  submitted  that  under  the  1933  Agreement, there  is  no  necessity  for  the  State  of  Karnataka  to inform the State of Tamil Nadu or any other riparian States to utilize the waters of South Pennaiyar river basin for the purpose of drinking water. The relevant portion of the agreement of 1933 reads as under:

“An  anicut  will  include  any  construction  of rough stone (dry) or masonry across a river either in part or full and in any direction, which will have the effect  of  diverting  water  from  the  river,  but  the consent  of  the  Madras  Government  will  not  be required  under  the  agreement  of  1892  for  the construction  of  any  anicut  if  there  is  to  be  no irrigation under it.”

…

37. Regarding the Construction of a reservoir of 500 Mcft  storage  capacity  across  Markandeya  river referred to in para 4(v), it is submitted that the Urban Water Supply and Drainage Board has taken up the project for meeting drinking water supply to Malur, Bangarpet Kolar towns and 45 en-route village.

38. The  Markandeya  Project  was  constructed  near Yargol village at an estimated cost of 240 crores.  The justification  for  project  was  that  drinking  water  is

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supplied from bore wells which are completely dried up.  The Sate Water Quality Atlas prepared in 2002 has  declared  that  the  ground  water  exploitation  in Malur town is about 85% classifying it as dark areas and  Kolar  city  and  Bangarpet  towns  where  ground water exploitation as 50% to 85% which have been classified  as  grey  area.   The  present  project  is constructed to alleviate the drinking water problems arising out of non-availability of potable ground water in  bore  wells.   The  population  and  the  demand  of water for the population at different points of time is as follows:

Sl. N o

Name of  the town

Population Per  Capita Suppl y

Demand in  MLD  

Demand in  Mcft (for 9  months)

2001 2011 2038 2058 2038 2058 2038 2058 1. Kolar 113299 13846

2 20414 7

28065 3

100  lpcd

28.16 38.7 3

294.9 3

405.6 4

2. Bangarpe t

38684 44849 69703 95824 70  lpcd

6.73 9.26 70.50 97.01

3 Malur 27791 42000 50075 68841 70  lpcd

4.85 6.65 50.77 69.62

4 Enroute  Villages

29773 53546 73751 40  lpcd

4.07 5.60 42.60 58.68

39. So far  as  construction of  Markandeya reservoir with a capacity of 500 mcft is concerned, it is only to supply drinking water to Kolar, Bangarpet and Malur towns.   This  project  is  taken  up  by  the  State  of Karnataka through KUWS & DB.  In regard to this project, 70 to 75% of the work is completed.  Since, it is a project to supply drinking water, no permission or consent  is  required  from  the  State  of  Tamil  Nadu either  under  the  1892  Agreement  or  under  the Agreement of 1933.  Therefore, there is no basis for Tamil Nadu in instituting this suit.  

40. An  approval  has  been  granted  to  construct  a reservoir  with  a  capacity  of  500  Mcft  in  order  to supply  water  to  drought  prone  towns  of  Kolar, Bangarpet and Malur and 45 enroute villages.  This project  has  been  approved  in  the  year  2007.   The estimated cost of the project is about 240 crores, out of which 160 crores is the budgetary allocation of the

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State of Karnataka and the remaining 79.92 crores is from the Government of India.  The project is taken up under a scheme known as UIDSSMT.  Clearances have also been obtained from Government of India, Ministry  of  Urban  Development  and  also  from Ministry of Environment and Forest.  For the purpose of  this  project,  375.37  acres  of  land  has  been acquired, out of which 127.10 acres is the lands of the farmers,  153.15  acres  of  land  is  forest,  for  which clearance has also been obtained from the Ministry of Forest and Environment.  The remaining 95.12 acres of land is the government gomala (grazing land).  As of  now,  more  than  70%  of  the  work  has  been complete.  Since, it is a drinking water project, there is no  need to obtain the consent or intimate the State of Tamil Nadu in view of the Agreement of 1933.

…

84. The allegation in paragraph 46 that this Hon’ble Court  has  original  jurisdiction under  Article  121 of the  Constitution  to  entertain  the  present  suit  is  not true.  The allegation that the Agreement of the year 1892 binds the party States is not admitted to be true and correct.  The allegation that dispute exist between the  plaintiff  and  the  defendant,  which  involves question of law and fact with regard to common law rights  pertaining  to  construction  of  various  works executed or undertaken by the 1st defendant are not admitted to be true and correct.  This Hon’ble Court has no jurisdiction to entertain the present suit.”

4. In its Replication filed on 30.04.2019 to the Written Statement of

the second defendant, the Plaintiff stated:-

“i. The  averment  of  the  2nd Defendant  that  as  no request  for  appointment  of  Arbitrator  was  received from State Government,  under Rule-IV of the 1892 Agreement, is the reason for the Central Government not being able to take action is wholly untenable.  It is stated  that  whether  Markandeyanadhi,  which  is  a tributary of Pennaiyar river, is specifically mentioned

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in  the  1892  Agreement  or  not  is  not  relevant. Moreover, the principles envisaged in the Agreement is  important,  i.e.,  no  new  structure  should  be constructed without the concurrence of lower riparian State  or  without  affecting  the  existing  utilization (drinking & irrigation) in the downstream areas.  The construction of a large dam across Markandeyanadhi would  prejudicially  affect  the  downstream areas  in Tamil  Nadu  and  no  drop  of  water  would  flow downstream of the dam under construction.  If such constructions are encouraged, the existing utilizaiton would be seriously affected.   

ii. The 2nd Defendant has stated that no request has been  received  from  any  State  Government  for constitution of  Board under the provisions of River Boards  Act,  1956  and  for  setting  up  of  Tribunals under  Act,  1956.   The  said  contention  is  denied. Regulation of water of an inter-State river, is covered under Entry 56 of List I (Union List).  The Defendant No.2 has failed to initiate action to stop the unilateral action of 1st Defendant from going ahead with such un-authorized diversions.  The 2nd Defendant has not taken  any  effective  action  even  after  the representations  made  by  the  Plaintiff  State  were received  except  sending  an  inspection  team  and conducting one meeting in 2018, while the issue has cropped up in 2012 itself.   

iii. With  regard to  the  contention  of  2nd Defendant that  no  request  was  received  from  any  State Government  for  setting  up  of  Tribunal  for adjudication  of  disputes  relating  to  Inter-State  river Pennaiyar  under  the  provisions  of  Act,  1956,  it  is stated  that  the  issue  is  not  related  to  allocation  of waters  amongst  the  basin  States  but  related  to  un- authorized diversions from the inter-State river and its tributary,   which  is  a  violation.   However,  2nd

Defendant  has  not  considered  the  representations made by the Plaintiff from 2012 onwards to protect and safeguard the interest of the lower riparian State as envisaged in Clause II of Agreement, 1892 and the rights  guaranteed  under  Article  21  of  the Constitution.”

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5. Replication was also filed on 07.05.2019 to the Written Statement

filed by the first defendant submitting inter alia:-

“6. It is reiterated that the Suit is maintainable as the Defendant State is a party to the Agreement.  The 1st

Defendant  by  its  suo-motu action  of  diverting  the Pennaiyar river water directly by pumping in number of places, and also pumping the surplus waters from the tanks draining into the river to other tanks, which were  not  fed  by  the  river  and  thereby  preventing surplus flows from the tanks flowing to the river, has deprived  the  flows  due  to  the  lower  riparian  State. Thus,  the  action  of  the  1st Defendant  in  interfering with the rights of the Plaintiff  State and the Suit  is maintainable under Article 131,  the redressal  of the grievance.”

6. Thereafter,  IA No.95384 of 2019 has been filed by the Plaintiff

seeking following directions:-

“a)  restrain  the  1st Defendant  and  its instrumentalities  from  proceeding  further  with  the construction  of  dam  across  Markandeyanadhi  near Yargol Village;

b) direct  the  State  of  Karnataka  and  its instrumentalities not to obstruct the natural flows to the downstream State of Tamil Nadu pending disposal of the present application; and”

The application states:-

“2. It is stated that the officials of the Applicant State made a visit to the site on 16.05.2019 and found the following activities across Markandeyanadhi to divert water by State of Karnataka for its use which would

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completely  impound  the  natural  flows  due  to downstream State of Tamil Nadu.

i. A massive dam construction work is going on across Markandeyanadhi at Yargol (Karnataka State) and it is not a check dam.

ii. As per local enquiry, the height of the dam is about  50m.   At  present  concrete  dam  is constructed to a height of about 35m and the work  is  in  progress,  the  length  of  the  dam seems to be around 400m.  The left flank bund has been raised and it has almost reached the top bund level.  The upstream bund revetment work is also progressing.   

iii. A large  amount  of  materials  collections  are seen in the upstream of the dam.

iv. Pumping station works are progressing.”

7. Statement  of  objection  filed  by  the  first  defendant  to  the

aforementioned interim application, states as under:-

“8. So far  as  construction of  Markandeya reservoir with a capacity of 500 mcft is concerned, it is only to supply  drinking  water  to  Kolar,  Bangarpet,  Malur towns and en-route 45 villages.  This project is taken up  by  the  State  of  Karnataka  through  Karnataka Urban Water  Supply  & Drainage Board (KUWS & DB), Bangalore.  In regard to this project, 70 to 75% of the work is  completed.   Since,  it  is  a  project  to supply  drinking  water,  no  permission  or  consent  is required from the State of Tamil Nadu either under the 1892 Agreement or under the Agreement of 1933. Therefore,  there  is  no  basis  for  Tamil  Nadu  in instituting this suit.   

9. An  approval  has  been  granted  to  construct  a reservoir  with  a  capacity  of  500  Mcft  in  order  to

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supply  water  to  drought  prone  towns  of  Kolar, Bangarpet,  Malur  and  45  en-route  villages.   This project  has  been  approved  in  the  year  2007  and subsequently modified Government Order was issued in 2008.  The estimated cost of the project is about Rs.240  crores,  out  of  which  Rs.160  crores  is  the budgetary allocation of the State of Karnataka and the remaining Rs.79.92 crores is from the Government of India.   The  project  is  taken  up  from  financial assistance  of  Rs.79.92  crores  under  Urban Infrastructure  Development  Scheme  for  Small  and Medium Tanks (UIDSSMT) of Government of India, known as UIDSSMT.  For the purpose of this project, 375.37 acres of land has been acquired, out of which 127.10 acres is the lands of the farmers, 153.15 acres of land is forest,  for which clearance has also been obtained  from  the  Ministry  of  Forest  and Environment,  Government of India.   The remaining 95.12 acres of land is the government gomala (grazing land).   As of now, more than 75% of the work has been completed.  Since, it is a drinking water project, there is no need to obtain the consent or intimate the State  of  Tamil  Nadu  in  view  of  the  Agreement  of 1933.”

8. In the rejoinder to the statement of objection and in sur-rejoinder  

thereto, the parties reiterated their respective stands.  

9. We heard Mr. Shekhar Naphade, learned Senior Advocate for the

Plaintiff,  Mr.  Shyam  Divan,  learned  Senior  Advocate  for  the  first

defendant and Mr. S. Wasim A. Quadri, learned Senior Advocate for the

second defendant.   

10. It was submitted by Mr. Naphade, learned Senior Advocate:-

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A) As laid  down by this  Court  in  State  of  Karnataka  v. State  of

Tamil Nadu and Others1, an Inter State River passing through corridors of

riparian States constitutes a national asset and no single State can claim

exclusive ownership of its water.  However, the attempts on part of first

defendant were to appropriate the water exclusively to itself.    

B) Though  river  Markandeyanadhi  was  not  referred  to  in  the

Agreement of 1933 entered into between the erstwhile States of Madras

and Mysore, going by the law laid down by this Court in State of Tamil

Nadu  v. State of Kerala and Another2 a tributary would be part of the

Inter State River and as such would be covered by said agreement.

C) Clause  1(3)  of  the  Agreement  of  1933  permitted  creation  of

anicuts i.e. smaller canals if no irrigation was involved.  However, such

provision would not  apply to irrigation projects  where a  dam is  being

constructed with 36 metres of height.  

D) Documents at page 215-216 of the paper book show that grievance

was  raised  by the  plaintiff  and request  was  made for  full  information

about all the schemes in Pennaiyar basin but no requisite information was

1(2018) 4 SCC 1 (Para 446.7) 2 (2014) 12 SCC 696

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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supplied.   Though  representations  and  complaints  were  made  by  the

plaintiff to the second defendant, no action was taken.   

E) Since the Agreement of 1933 was violated by the first defendant,

the second defendant ought to have interfered in the matter but there was

total inaction on part of the second defendant.  

F) Dealing with the issue whether the matter ought to go before a

Tribunal under the Indian State River Water Disputes Act, 1956 (‘the Act’,

for short) reliance was placed on the decisions of this Court in  State of

Orrisa  v. Government of India and Another3 and Tamil Nadu Cauvery

Neerppasana  Vilaiporulgal  Vivasayigal  Nala  Urimai  Padhugappu

Sangam  v. Union  of  India  and  Others4 and  it  was  submitted  in  the

alternative that interim relief as prayed for be granted till the appropriate

steps were taken by the second defendant to constitute such Tribunal.   

11. On the other hand, Mr. Divan, learned Senior Advocate appearing

for the first defendant submitted:-

a) The instant suit itself was not maintainable in view of the

express mandate under Article 262 of the Constitution of India read with

Section 11 of the Act.  

3 (2009) 5 SCC 492 4 (1990) 3 SCC 440

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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b) Agreement  of  1933  would  apply  only  in  respect  of

irrigation  projects  and  would  not  cover  drinking  water  projects.   The

report  of  Central  Water  Commission  (CWC)  was  also  relied  upon  in

support of the submission.   

c) The projects for supply of drinking water have been given

highest priority under the National Water Policy and in any case 80% of

the water supplied for drinking purposes would normally come back by

return flows into the basin.  

d) About  75%  to  80%  of  construction  work  was  already

completed  which  was  undertaken  after  due  sanctions  and  permissions

from the concerned authorities.  The steps in that behalf were undertaken

from the year 2013 onwards and the instant application preferred by the

plaintiff suffered from delay and laches.   

e) Considering the length of the Inter State River, 75% of the

basin including the catchment area is in the State of Tamil Nadu and the

projects undertaken by the first defendant would not cause any prejudice

to the plaintiff.   

12. Mr. S. Wasim A. Quadri, learned Senior Advocate for the second

defendant submitted that though various communications were addressed

by the plaintiff, at no stage any request was made in the prescribed form

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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invoking the powers of the second defendant in terms of the provisions of

the Act to constitute a Tribunal to consider the disputes in question.   

13. The  rival  contentions  advanced  by  the  parties  touching  upon

merits of the matter including maintainability of the suit will certainly be

gone into after  the parties  are allowed opportunity to lead evidence in

accordance  with  law  and  to  make  appropriate  submissions.   At  this

juncture we are called upon to consider whether pending consideration of

the present suit, any interim directions are required to be passed.   

14. From  the  record  it  is  prima  facie evident  that  the  project  in

question  was  undertaken  after  receiving  all  requisite  sanctions  and

permissions.  The issue was engaging the attention of the authorities for a

while; the construction work began few years back; and as of now 75%

work is complete.  Therefore, in our prima facie view, no case is made out

for granting any interim relief.

15. We  now  consider  the  alternative  submission  of  Mr.  Naphade,

learned  Senior  Advocate  and  the  decisions  of  this  Court  in  State  of

Orrisa3 and Tamil Nadu Cauvery4 case relied upon by him.  In the first

case  the  State  had  approached  this  Court  under  Article  32  of  the

Constitution submitting inter alia that despite several requests made by it

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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for constituting an Inter State River Water Disputes Tribunal, there was

complete inaction on part of the Central Government.  The principal relief

claimed  in  the  petition  was  for  appropriate  direction  to  the  Central

Government to constitute an Inter  State River  Water  Disputes Tribunal

and pending such decision by the Central Government, interim relief was

prayed for.  This is clear from paragraphs 1, 2, 47, 49, 50, 51, 52 and 53 of

the decision of  Kabir,  J.  (as  the learned Chief  Justice  then was),  with

whom Katju, J. concurred:-

“1. The  State  of  Orissa  has  filed  this  writ  petition under Article 32 of the Constitution of India, wherein the Government of India has been made Respondent 1 and  the  State  of  Andhra  Pradesh  has  been  made Respondent 2, inter alia, for the following reliefs:

“(a) direct the Government of India to constitute an appropriate Tribunal under Section 4 of the Inter-State  Water  Disputes  Act,  1956  and thereafter, refer to it the dispute relating to the construction  of  Side  Channel  Weir  and  Flood Flow  Canal  Project  at  Katragada  on  River Vansadhara by the State of Andhra Pradesh;

(b) issue a writ of mandamus commanding the State  of  Andhra  Pradesh  to  forbear  from carrying on any works of the proposed project;”

2. As indicated in the very opening paragraph, the writ petition was filed by the State of Orissa for a direction to  the  Central  Government  to  constitute  a  Water Disputes  Tribunal  under  the  Inter-State  Water Disputes Act,  1956 and to refer  to the Tribunal the dispute contained in the complaint made by the State of  Orissa  on  13-2-2006,  as  to  whether  the  State  of Andhra Pradesh was justified in constructing a Side

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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Channel Weir and Flood Flow Canal Project on River Vansadhara  at  Katragada,  which  would  adversely affect the supply of water from the river to the State of  Orissa  and  adversely  affect  the  livelihood  of thousands of people of Orissa in glaring violation of Article 21 of the Constitution of India.

… 47. It is now almost three years since the complaint was  made  by  the  State  of  Orissa  but  the  Central Government has not taken any action in the matter. In this scenario, the prayer made by the State of Orissa does not appear to be unreasonable since the dispute between the two States does not confine itself to the construction of  the  side  channel weir  and the flood flow  canal,  but  primarily  it  involves  the  unilateral decision  taken  by  the  State  of  Andhra  Pradesh  to divert the river waters to the State of Andhra Pradesh, which could possibly disturb the agreement to share the waters of the river equally.

… 49. Coming to the question of grant of interim order during  the  interregnum,  I  am  satisfied  that  unless some interim protection is given till the constitution of  the  Water  Disputes  Tribunal  by  the  Central Government,  the  objection  raised  by  the  State  of Orissa will be rendered infructuous, which certainly is not the intention of the 1956 Act.

50. Notwithstanding the powers vested by Section 9 of  the  Act  in  the  Water  Disputes  Tribunal  to  be constituted by the Central Government under Section 4, which includes the power to grant the interim order, this  Court  under  Article  32  of  the  Constitution  has ample  jurisdiction to  pass  interim orders  preserving the status quo till a Tribunal is constituted which can then exercise its powers under Section 9.

51. The bar under Section 11 of the Act will come into play once the  Tribunal  is  constituted and the  water dispute is referred to the said Tribunal. Till then, the bar of Section 11 cannot operate, as that would leave

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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a  party  without  any  remedy  till  such  time  as  the Tribunal is formed, which may be delayed.

52. I,  accordingly, allow the writ petition and direct the  Central  Government  to  constitute  a  Water Disputes Tribunal within a period of six months from the date and to refer to it the dispute relating to the construction  of  the  Side  Channel  Weir  and  Flood Flow Canal Project at Katragada on River Vansadhara by the State of Andhra Pradesh for diversion of the waters of the said river which could adversely affect the supply of water from the said river to the State of Orissa.

53. I also direct that pending constitution of the Water Disputes Tribunal and reference of the above dispute to it, the State of Andhra Pradesh will maintain status quo as of date with regard to the construction of the side  channel  weir  and  the  flood  flow  canal  at Katragada. Once the Tribunal is constituted the parties will be free to apply for further interim orders before the Tribunal.”

The second case dealt with the maintainability of a Writ Petition by the

concerned Writ Petitioners.

16. In  the  present  case  neither  in  the  plaint,  nor  in  the  interim

application any relief in the nature of directions to constitute a Tribunal

under the Act is claimed.

17. We  repeatedly  asked  Mr.  Naphade,  learned  Senior  Advocate  to

show any communication where the plaintiff had invoked the power of the

Central Government and sought constitution of an Inter State River Water

I.A. No.95384 of 2019 in Original Suit No.1 of 2018  State of Tamil Nadu vs. State of Karnataka and Another  

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Disputes  Tribunal  to  consider  the  present  controversy.   Mr.  Naphade

accepted that there was no such express communication but submitted that

the request ought to be inferred from various communications addressed

by the plaintiff to the Central Government.   

18. It must be stated that Section 3 of the Act postulates that a request

be made in such form and manner as may be prescribed, whereafter the

requisite power can be exercised by the Central Government.  The rules

framed  pursuant  to  rule  making  power  conferred  upon  the  Central

Government under Section 13 of the Act also prescribe a particular form.

It is not as if that there was lack of proper legal opinion in the matter. The

State would normally be guided by expert legal advice in such matters.  It

is also possible to say that in a given case, a State may not be inclined to

have any Inter State River Water Disputes Tribunal to be constituted and

would  therefore  consciously  avoid  any  direct  request  asking  for  such

constitution of the Tribunal.  There could be variety of reasons.  It will not

therefore  be  correct  on  our  part  to  infer  such  an  idea  from  the

communications addressed by the  plaintiff  to  the second defendant  and

then find second defendant to be at fault for not constituting a Tribunal

under the Act.  

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19. In the circumstances all we can do at this stage is to permit the

plaintiff  to make an appropriate application invoking the powers of  the

Central  Government  in  terms  of  the  provisions  of  the  Act  and  seek

constitution of an Inter State River Water Disputes Tribunal.  If the plaintiff

is so advised, such request may be made within four weeks from the date

of this order.    

20. Subject to the aforesaid, we see no reason to entertain the present

application.  I.A. No.95384 of 2019 is therefore dismissed.  Let the Suit be

listed for further directions on 10th January, 2020.  

………………………..J. [Uday Umesh Lalit]

………………………..J. [Vineet Saran]

New Delhi; November 14, 2019.