KACHCHH JAL SANKAT NIVARAN SAMITI Vs STATE OF GUJARAT
Bench: CHANDRAMAULI KR. PRASAD,V. GOPALA GOWDA
Case number: C.A. No.-002957-002957 / 2013
Diary number: 827 / 2006
Advocates: Vs
HEMANTIKA WAHI
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2957 OF 2013
KACHCHH JAL SANKAT NIVARAN SAMITI & ORS. ..APPELLANTS
VERSUS
STATE OF GUJARAT & ANR. …RESPONDENTS
JUDGMENT
CHANDRAMAULI KR. PRASAD,J.
Appellant no. 1, Kachchh Jal Sankat Nivaran
Samiti, claims to be a non-political organization
established with the object amongst others to work
to alleviate the District of Kutch of its perennial
water scarcity and to mitigate the resultant
problems faced by the inhabitants and the
residents. Other appellants have also interest in
the cause espoused by appellant no. 1. Aggrieved
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by the meager allocation of water from Sardar
Sarovar Project to the District of Kutch they
approached the Gujarat High Court in a public
interest litigation inter alia praying for issuance
of a writ in the nature of mandamus or any other
appropriate writ, order or direction directing the
respondent, the State of Gujarat and its
functionaries to allocate more water from Sardar
Sarovar Project to the District of Kutch. By the
impugned order the prayer made by the appellants
has been rejected and against the dismissal of the
writ petition they are before us with the leave of
the Court.
Water is essential for survival of universe.
It is not available for human use in plenty and
hence disputes existed between various States for
its sharing. In the year 1969, the Government of
India in exercise of its power under Section 4 of
the Inter-State Water Disputes Act, 1956
constituted Narmada Water Disputes Tribunal
(hereinafter referred to as “the Tribunal”), to
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decide the Inter-State dispute of sharing of water
of river Narmada. The Tribunal handed over its
award on 16th of August, 1978. As provided under
Section 5(3) of the Inter-State Water Disputes Act,
(hereinafter referred to as “the Act”), the Union
of India and the States of Gujarat, Madhya Pradesh,
Maharashtra and Rajasthan made references. Those
references were heard by the Tribunal which gave
its final award on 7th of December, 1979. It was
published on 12th of December, 1979 in the
Extraordinary Gazette of the Government of India.
While giving the award, the Tribunal considered the
issue pertaining to allocation of water, height of
the dam, hydrology and other related issues. As
regards the issue of allocation of Narmada water at
Sardar Sarovar Dam site, the Tribunal allocated
9.00 Million Acre Feet (for short “MAF”) to the
State of Gujarat whereas 18.25 MAF, 0.50 MAF and
0.25 MAF were allocated to the States of Madhya
Pradesh, Rajasthan and Maharashtra respectively.
It is relevant here to state that the State of
Gujarat laid claim for 20.73 MAF of water out of
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the total demand of 22.02 MAF of water before the
Tribunal, which included 6.57 MAF water for
reclaiming and/or irrigating 12.17 lakh acres of
land of the District of Kutch under Zone XI-C,
Banni and Ranns. However, the claim of the State
of Gujarat was turned down by the Tribunal on its
finding that these areas are barren and sparsely
populated. Its soil is highly saline having very
low permeability and vertical permeability of
nearly nil. It has high ground water table and
impervious layer near the ground water surface,
high evaporation and low rainfall. In this way the
Tribunal rejected the claim of State of Gujarat for
irrigating 11 lakh acres of land in Banni and Ranns
areas and as stated, allocated 9.00 MAF of water.
How the water allocated to each of the States shall
be utilised was left to the choice of the State
Government. As it was not a case of plenty, the
State Government of Gujarat out of 9.00 MAF water,
allocated 7.94 MAF water for irrigation and 1.06
MAF water for domestic and industrial use and
because of the limited water allocation, the
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proportionate water requirement for Kutch region
was worked out as 0.15 MAF.
The appellants are aggrieved by aforesaid
meager allocation of water and, according to them,
the State Government has not distributed the water
keeping in mind the Directive Principles of the
State Policy as enshrined under Article 39(b) of
the Constitution of India which inter alia obliges
the State to make the policy in such a way that the
material resources of the community are so
distributed as best to subserve the common good.
Appellant further contended that by meager
allocation of water, the State Government also did
not carry out its obligation as mandated under
Article 38(2) of the Constitution which casts a
duty on it to strive to minimise the inequalities
in income and make an endeavour to eliminate
inequalities in the status, facilities and
opportunity amongst individuals and groups of
people residing in different areas of the State.
The plea of the State Government is that out of the
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limited water allocated to it by the Tribunal, it
had made the best use of that. It has also been
pointed out that the allocation complained of is
not static and shall vary from time to time and the
quantity of water allocated for Kutch District may
increase. It has also been averred that while
making allocation to Kutch District, the State
Government has kept in view the interest of all
concerned and also the factors relevant for the
purpose. According to the respondent-State
Government, it laid a claim for 20.73 MAF of water
out of the total demand of 22.02 MAF water before
the Tribunal which included 6.57 MAF for Kutch, but
only 9.00 MAF water was allocated and the award of
the Tribunal having been approved by the Supreme
Court, the State Government has to distribute the
limited water allocated to it. It has also been
pointed out that the allocation made for the
District of Kutch has been increased in later
years.
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The High Court has analysed in detail the pleas
raised by the parties and declined to interfere
with the same, inter alia, on the grounds that the
decision involved balance of competing claims of
the natural resources and there is no judicially
manageable standard for adjudication for allocation
of water in favour of any region within the State.
While doing so, the High Court observed as follows:
“In our opinion, the above observations would answer the submissions advanced by the learned counsel of the petitioners. We are not here to weigh the pros and cons of the policy or scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, unless it is arbitrary or violative of any constitutional, statutory or any other provision of law. Needless to say that the petitioners have not challenged these decisions on the ground that as they are arbitrary nor have they pointed out that they are unconstitutional or violative of statutory or any other provisions of law. The Government, in the instant case, decided to accept the award of the NWDT which is based on the expert opinion and now we are asked to test the utility, beneficial effect etc. of the policy on the basis of the affidavit filed before us……”
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The High Court further observed that the issue
raised requires determination of the choice of
priorities and it is not subject to judicial
review. The High Court, in this connection,
observed as follows:
“29. Apart from that, determining the choice of priorities and formulating perspective thereof is a matter of policy and it is not within our domain to interfere with the sole question of efficacy or otherwise of such policy unless the same is “vitiated” of in violation of any provisions or the statute or Constitution of India.”
Mr. Altaf Ahmed, Senior Counsel appears on
behalf of the appellants and takes a stand that the
appellants do not seek determination of appropriate
quantity of water for the District of Kutch but the
plea is that the policy of distribution is based on
irrelevant consideration and, therefore, subject to
judicial review. According to him, it lacks
transparency and exhibits extreme prejudice and
discrimination against Kutch District. According
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to him, while making the policy, the relevant
factors were ignored and irrelevant and extraneous
factors have been taken into account. He points
out that the State of Gujarat while claiming large
share of water from river Narmada before the
Tribunal relied heavily upon the need of Kutch
District to get more water but after the award, did
not stick to its stand after the allocation was
made by the Tribunal. He has brought to our notice
the comparative data regarding allocation of water
to the various districts and points out that the
same indicates discriminatory allocation of water
to the Kutch area. Mr. Ahmed draws our attention
to Article 39(b) of the Constitution of India and
submits that the State while dealing with the
distribution of water did not respect the
constitutional philosophy that the State shall
distribute the material resources as best to
subserve “common good”. It has also been contended
that the natural resources are held by the
Government as trustee for the benefit of the
citizens and, therefore, the State Government is
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required to manage and utilize them in the best
interest of the society. While making
distribution, according to Mr. Ahmed, the State
Government totally lost sight of Article 38(2) of
the Constitution which stipulates that the State
shall endeavor to minimize inequalities in the
facilities and opportunities amongst people.
On account of all these infirmities, the
impugned policy deserves to be looked into by this
Court in exercise of its power of judicial review,
contends Mr.Ahmed. Reliance has been placed in
support of aforementioned contention to a decision
of this Court in the case of Tata Cellular vs.
Union of India (1994)6 SCC 651. Our attention has
been drawn to the following passage from the
said judgment:
“70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are
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inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down”
Mr. Shyam Diwan, Senior Counsel representing
the State of Gujarat states that the issue
regarding allocation of water to the districts of
Gujarat is a matter of policy and the scope of
judicial review in this regard is narrow.
According to him, the policy has been framed after
consulting technical experts in the best interest
of the people and, therefore, does not call for any
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interference by this Court in exercise of its power
of judicial review.
We have given our most anxious consideration
to the rival submissions and we find substance in
the submission of Mr. Diwan. We are conscious of
the fact that there is wide separation of powers
between the different limbs of the State and,
therefore, it is expected of this Court to exercise
judicial restraint and not encroach upon the
executive or legislative domain. What the
appellants in substance are asking this Court to do
is to conduct a comparative study and hold that the
policy of distribution of water is bad. We are
afraid, we do not have the expertise or wisdom to
analyse the same. It entails intricate economic
choices and though this Court tends to believe that
it is expert of experts but this principle has
inherent limitation. True it is that the court is
entitled to analyse the legal validity of the
different means of distribution but it cannot and
will not term a particular policy as fairer than
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the other. We are of the opinion that the matters
affecting the policy and requiring technical
expertise be better left to the decision of those
who are entrusted and qualified to address the
same. This Court shall step in only when it finds
that the policy is inconsistent with the
Constitutional laws or arbitrary or irrational.
Candidly speaking, we do not have the
expertise to lay down policy for distribution of
water within the State. It involves collection of
various data which is variable and many a times
policy formulated will have political overtones. It
may require a political decision with which the
Court has no concern so long it is within the
Constitutional limits. Even if we assume that this
Court has the expertise, it will not encroach upon
the field earmarked for the executive. If the
policy of the Government, in the opinion of the
sovereign, is unreasonable, the remedy is to
disapprove the same during election. In respect of
policy, the Court has very limited jurisdiction. A
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dispute, in our opinion, shall not be appropriate
for adjudication by this Court when it involves
multiple variable and interlocking factors,
decision on each of which has bearing on others.
While disposing of an interlocutory application in
this very appeal by order dated 22nd of July, 2011,
this Court observed as follows:
“We are of the opinion that the prayer for allocation of adequate water in Kuchchh district is not one which can be a matter of judicial review. It is for the executive authorities to look into this matter. As held by this Court in Divisional Manager, Aravali Golf Club & Anr. vs. Chander Hass & Anr. (2008) 1 SCC 683, there must be judicial restraint in such matters.”
We are in respectful agreement with the view
aforesaid.
The State of Gujarat emphasized the need of
more water for the District of Kutch before the
Tribunal and projected all those pleas which have
been projected before us by the appellants but the
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same did not find favour with the Tribunal and the
Tribunal allocated 9.00 MAF water instead of 22.02
MAF water claimed before the Tribunal. Therefore,
they were left with little amount of water. In the
face of it, less amount of water than what has
been claimed by the appellants was allocated for
the District of Kutch. The allocation of water is
a matter of policy and how much water is to be
released from the canal and for that matter a
particular area or how much water is to be left
with other regions, in our opinion, are matters
which require delicate balancing and consideration
of complex social and economic consideration. In
our view, there being no judicially manageable
standards, it shall be appropriate to leave it to
be decided by the experts of the irrigation
management system and water resources management.
The plea of the appellants that those factors
which were projected by the State Government
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itself before the Tribunal are not being adhered
to and its action is arbitrary, does not appeal to
us. The State Government also projected the need
of Kutch area before the Tribunal but the same did
not appeal to it. In fact, the award of the
Tribunal has got the seal of approval of this
Court and the State Government having accepted the
decision of the Tribunal, its action cannot be
termed as arbitrary only on the ground that all
those factors were not considered while making
allocation to the district. As regards the
complaint of the appellants that while making
distribution, the State Government did not take
into account the policy underlying Article 39(b)
of the Constitution, we must observe that the
distribution of material resources is to be
effected in the manner to subserve the “common
good” and this expression is not to be confined
for the Kutch District only but to the other
regions of the State also.
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The complaint of the appellants of non-
adherence to the mandate of Article 38(2) of the
Constitution is also misconceived. The State, in
our opinion, is to strive to minimize the
inequalities in income and endeavour to eliminate
inequalities in status, facilities and
opportunities not only amongst individuals but also
amongst group of people residing in different parts
or engaged in different vocations. But this does
not mean that for achieving that the State
Government has to apply it on the basis of the
number of people residing in different parts only.
Other factors just cannot be forgotten.
We are in total agreement with the conclusion
and reasoning given by the High Court and we
reiterate that there being no judicially manageable
standards for allocation of water, any interference
by this Court would mean interference with the day-
to-day functioning of the State Government. In view
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of separation of powers, this Court cannot charter
the said path.
In the result, we do not find any merit in
this appeal which is dismissed accordingly but
without any order as to costs.
………………………………………………………………J (CHANDRAMAULI KR. PRASAD)
………..……….………………………………..J (V.GOPALA GOWDA)
NEW DELHI, JULY 15, 2013.
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