Inter State Water Disputes – Resolution of Disputes

under our Constitution : the place of the Supreme

Court.

1. We read a lot in the press these days about water disputes

between sister States of our Union. What exactly are inter
state water disputes ?

2. When one State claims a share in the waters of a river or a

stream to the exclusion, partial or otherwise, of another, an
inter State river water dispute arises and an unresolved
dispute leads to a cause of action before an appropriate court
or tribunal.

3. Our Constitution furnishes, in Article 131, the forum for the

redressal of disputes between States or between a State and
the Union. That forum is the Supreme Court.

4. To start with, Article 131 (excluding the proviso thereat) is an

original provision under the Constitution. It says:

Article 131. Original Jurisdiction of the Supreme Court:

Subject to the provisions of this Constitution, the Supreme
Court shall, to the exclusion of any other Court, have
original jurisdiction in any dispute:

(a) between the Government of India and one or more

States; or

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 (b) between the Government of India and any State or
States on one side and one or more States on the
other; or

(c) between two or more States;

if and in so far as the dispute involves any question

(whether of law or fact) on which the existence or extent
of a legal right depends:

Provided that the said jurisdiction shall not extend to a

dispute arising out of any treaty, agreement, covenant,
engagement, sanad or other similar instrument which,
having been entered into or executed before the
commencement of this Constitution, continues in
operation after such commencement, or which provides
that the said jurisdiction shall not extend to such a
dispute.

5. An early interpretation of Article 131 by the Hon’ble Supreme

Court lays down the essence of Article 131 and this
interpretation continues to govern suits filed under Article 131.

“..Mere wrangles between governments have no place in the

scheme of that (131) article. They have to be resolved elsewhere
and by means less solemn and sacrosanct than a court
proceeding. The purpose of Article 131 is to afford a forum for the
resolution of disputes which depend for their decision on the
existence or extent of a legal right. It is only when a legal, not a

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 mere political, issue arises touching upon the existence or extent
of a legal right that Article 131 is attracted.

State of Rajasthan and Ors Vs. Union of India and Ors (1977) (Original
Suits 1 to 6 of 1977)

A.I.R 1977 SC 1361 : (1977) (3) SCC 592. Decided on 06-05-1977.

6. Article 131 of the Constitution is one of the most unique

provisions of the Constitution in that the interpretation of this
Article by the Supreme Court is not limited by considerations
that ordinarily limit a Court below that tries an original suit.
Article 131 lays down the forum for adjudicating a dispute
between a State and the Union or between two or more States
or between the Union joined by one or more States and
another State or States. That forum is the Supreme Court.

7. When States discover a mutual conflict of interest in the

waters of a river or a stream, are their competing claims
governed by Article 131 ?

8. The answer must be ‘NO’. Article 131 is not and was not
designed to override other provisions of the Constitution in the
event of a conflict. Article 262 seeks to exclude Article 131
when a dispute between States concerns waters. It says:

Disputes relating to Waters

Article 262. Adjudication of disputes relating to waters of

inter state river or river valleys –

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 (1) Parliament may by law provide for the adjudication of
any dispute or complaint with respect to the use,
distribution or control of the waters of, or in, any inter
state river or river valley.

(2) Notwithstanding anything in this Constitution,

Parliament may by law provide that neither the Supreme
Court nor any other Court shall exercise jurisdiction in
respect of any such dispute or complaint as is referred to
in clause (1).

9. Is it justified to say that the Supreme Court may not entertain

any claim under Article 131 when such a claim is covered by
Article 262 ?

10. YES.

11. Article 262 is an original provision under the Constitution. In

exercise of power facilitated to the Parliament under Article
262 (1), the Parliament of India passed the Inter State Water
Disputes Act [INTER STATE RIVER WATER DISPUTES ACT, 1956
– Act No.33 of 1956] in the year 1956. This Statute defines a
‘water dispute’ and provides for a solution to States that claim
a share in disputed waters and above all, mandates that ‘water
disputes’ referable under this Act shall not be amenable to the
jurisdiction of any court including the Supreme Court of India.
Some of the provisions of this Act may be noted:

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12. Section 2(c) defines a ‘Water dispute’. It says:

(c) “Water dispute” means any dispute or difference

between two or more State Governments with respect to

i. The use, distribution or control of the waters of, or

in, any inter-state river or river valley; or

ii. The interpretation of the terms of any agreement

relating to the use, distribution or control of such
waters or the implementation of such agreement;
or

iii. The levy of any water rate in contravention of the

prohibition contained in Section 7.

13. Section 3 lays down the manner of cognizance of a ‘Water

dispute’ by the Central Government. It says:

[Link] it appears to the Government of any State that a water

dispute with the Government of another State 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 by-

a) any executive action or legislation taken or passed, or

proposed to be taken or passed, by the other State; or

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 b) the failure of the other State or any authority therein to
exercise any of their powers with respect to the use,
distribution or control of such waters; or

c) the failure of the other State to implement the terms of

any agreement relating to the use, distribution or control
of such waters; the State Government may, in such form
and manner as may be prescribed, request the Central
Government to refer the water dispute to a Tribunal for
adjudication.

14. Section 6 of the Act provides:

6 (1). The Central Government shall publish the decision

of the Tribunal in the Official Gazette and the decision
shall be final and binding on the parties to the dispute
and shall be given effect to by them.

(2). The decision of the Tribunal, after its publication in

the Official Gazette by the Central Government under
sub-section (1), shall have the same force as an order or
decree of the Supreme Court.

15. Section 11 excludes the jurisdiction of the Supreme Court and

of other courts in respect of a ‘Water dispute’. It says:

11. Notwithstanding anything contained in any other law,

neither the Supreme Court nor any other court shall have

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 or exercise jurisdiction in respect of any water dispute
which may be referred to a Tribunal under this Act.

16. As such, the Inter State Water Disputes Act of 1956 is a self
contained code and authority is taken in this statute to exclude
the jurisdiction of the Supreme Court under Section 11 of the
Act. This means a Tribunal constituted under this Act for the
purpose of adjudicating a water dispute between contesting
states is the exclusive venue for States to agitate a ‘water
dispute’ and within the scheme of this Act, the decision of such
a Tribunal is final and binds the party states.

17. Does an appeal lie against the order of a Water Disputes

Tribunal under Article 136 of the Constitution? Within the plain
meaning of all the relevant provisions, the answer is a simple
‘no’. Article 136 of the Constitution is an original provision
under the Constitution and provides as under:

Article 136. Special Leave to Appeal by the Supreme Court:

(1). Notwithstanding anything in this chapter, the

Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter
passed or made by any Court or tribunal in the territory
of India.

(2) Nothing in clause (1) shall apply to any judgment,

determination, sentence or order passed or made by

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 any Court or Tribunal constituted by or under any law
relating to the Armed forces.

18. Article 136 of the Constitution does not and cannot override
Article 262 of the Constitution. Within the scheme laid out in
Chapter IV that covers Articles 124 to 147, Article 136(1)
overrides every other provision except 136(2). However, the
Supreme Court of India being the highest judicial organ of the
State, it may expand the scope of Article 136 to an extent that
does not conflict with the ouster of its jurisdiction under Article
262 read with the provisions of the Inter State Water Disputes
Act,1956.

19. A reasonable and uncontroverted basis exists to assume that

neither Article 131 nor Article 136 affords any relief to a State
not happy with the order of a Water Disputes Tribunal.

20. We may now look for whether this conclusion is supported by

prior case law and by the outcome of disputes raised and
controversies brought before the Supreme Court.

21. However, before we begin, we may note that Suits or petitions

previously filed before the Supreme Court under Article 131 or
136 that warranted the consideration of whether the same was
barred by Article 262 have never survived any challenge under
Article 262 in all cases where the Supreme Court held that
claims raised thereat were barred by Article 262.

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22. States that did not wish to concede that Article 262 bars one or
more of their claims had advanced and fashioned a variety of
arguments and yet, none rose to a level necessary to compel
the Supreme Court to disregard the removal of its jurisdiction
under Article 262 subsequent to the coming into force of the
Inter State Water Disputes Act, 1956. It is not difficult to see
why.

23. The Supreme Court has consistently held that a complaint over
some aspects of the Tribunal’s order or of another State’s
conduct alone may be advanced before it, presumably under
Article 131 or 136, only as long as the same can be shown to
not vary the adjudication of the Tribunal made in response to a
dispute referred to it under Section 3 of the Inter State Water
Disputes Act.

24. Therefore, any such complaint that complies with this

requirement may not be adequate at all to afford relief to a
State to an extent that it seeks. In fact, affected States in the
past have filed suits under Article 131 or 136 before the
Supreme Court by resting their claim against the Respondent
State on the premise that the Respondent State has breached
a duty to act or to refrain from acting in a certain manner and
that such ‘action or refusal’ is not covered under Section 2 (c)
of the Inter State Water Disputes Act, 1956.

Some of the decisions of the Supreme Court may be noted:

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25. A Writ Petition came to be filed under Article 32 of the
Constitution in 1983 by a private group, Tamil Nadu Cauvery
Neerppasana Vilaiporugal Vivasayigal Nala Urimai Padhuguppu
Sangam against the Union of India and four riparian States
sharing the Cauvery River Basin. The Petitioner pleaded for an
effective relief to the plight of the farmers dependant upon the
Cauvery Water flows into Tamil Nadu on the premise that the
Cauvery Water flows into Tamil Nadu were fast dwindling due
to the impounding of ever larger quantity of water by the State
of Karnataka. The Court declined to take judicial notice of facts
adverted to in the petition except the mutual conduct of the
contesting states and the Union after which the Court said it
became
“necessary that the legal machinery provided by the Statute is set
in motion before the dispute escalates”.

The Court directed the Central Government to immediately

constitute a Tribunal as provided for under the Inter State
Water Disputes Act, 1956. As to Article 262 and Section 11 of
the Inter State Water Disputes Act, the Court held:

“It is thus clear that Section 11 of the Act bars the jurisdiction of
all Courts including this Court to entertain adjudication of
disputes which are referable to a Tribunal under Section 3 of the
Act. Therefore, this Court has no jurisdiction to enter upon the
factual aspects raised in the Writ Petition”

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 Tamil Nadu Cauvery Neerppasana Vilaiporugal Vivasayigal Nala Urimai
Pudhugappu Sangam Vs. Union of India and ors.

A.I.R 1990 SC 1316 : (1990) (3) SCC 440. Decided on 14-05-1990.

26. A certain determination of the Cauvery Water Disputes

Tribunal was successfully challenged under Article 136 by the
State of Tamil Nadu (in State of Tamil Nadu Vs. State of Karnataka
and Ors) and by the Union Territory of Pondicherry (in Union
Territory of Pondicherry Vs. State of Karnataka and Ors). The State of
Tamil Nadu and the Union Territory of Pondicherry had sought
interim relief before the Cauvery Water Disputes Tribunal, but
the Tribunal declined to consider them (CMPs No. 4 and 9 of
1990) however, on the premise that the matter of interim relief
was not referred to the Tribunal by the Central Government
and that it was not open to the Tribunal to adjudicate on a
dispute unless the same was referred to it by the Central
Government. Aggrieved by this order, the affected States
made a successful showing before the Supreme Court that

“the Supreme Court has the jurisdiction to decide the scope of the
powers of the Tribunal under the Act and in case the Tribunal has
wrongly refused to exercise jurisdiction under the Act, then this
Court is competent to set it right and direct the Tribunal to
entertain such application and to decide the same on merits”.

Partly accepting the contention advanced by the Petitioner

States, the Supreme Court concluded that it

11
 “is the ultimate interpreter of the Inter State Water Disputes Act,
1956 and has an authority to decide the limits, powers and the
jurisdiction of the Tribunal constituted under the Act”.

However, the Court concluded that it would not decide in the

instant case whether the Tribunal possessed the power to
grant interim relief because such an exercise was not
warranted in view of the Court’s finding that in the dispute
already referred by the Central Government to the Tribunal,
there was sufficient material to indicate that the
“reliefs prayed for by them (petitioner States) in their CMPs 4, 5
and 9 of 1990 were covered in the reference made by the Central
Government”.

State of Tamil Nadu Vs. State of Karnataka and Ors

WITH

Union Territory of Pondicherry Vs. State of Karnataka and Ors.

(1991) Supp (1) SCC 240 : 1991 (2) SCR 501. Decided on 26-04-1991.

27. In response to a Presidential Reference to the Supreme Court

under Article 143 of the Constitution (Special Reference No.1 of
1991) In the matter of the Cauvery Water Disputes Tribunal, the
Supreme Court discussed at length its advisory role and then
went on to distinguish between its advisory jurisdiction and its
appellate jurisdiction under other provisions of the
Constitution. In response to questions of law posed by the
President, the Supreme Court made several observations with
regard to Article 262. It may be noted that the Presidential

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Reference stated that the passing of an Ordinance by the State
of Karnataka that had the outcome of overriding the interim
order of the Cauvery Water Disputes Tribunal was a cause for
concern. It may also be noted that the State of Karnataka took
the contention that it had good faith to believe that the order
of the Tribunal granting interim relief was not merely without
jurisdiction but was also likely to adversely affect Karnataka’s
constitutionally protected interests in irrigation.

Varied interpretations of Article 131 and Article 262 were

advanced by all the four contesting States – the States of
Karnataka, Tamil Nadu, Kerala and the Union Territory of
Pondicherry. The Court said:

“It is clear from the Article (131) that this Court has original
jurisdiction, among other things, in any dispute between two or
more States where the dispute involves any question whether of
law or fact on which the existence and extent of a legal right
depends except those matters which are specifically excluded
from the said jurisdiction by the proviso. However, the
Parliament has also been given power by Article 262 of the
Constitution to provide by law that neither the Supreme Court nor
any other Court shall exercise jurisdiction in respect of any
dispute or complaint with respect to the use, distribution or
control of the water of, or in, any interstate river or river valley.
Section 11 of the Act, namely, the Inter State Water Disputes Act,
1956 has in terms provided for such exclusion of the jurisdiction
of the Courts”.

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 In the Matter of: Cauvery Water Disputes Tribunal.

A.I.R 1992 SC 522 : (1991) Supp. (2) SCR 497. Decided on 22-11-1991.

28. In an original suit filed by the State of Karnataka against the

State of Andhra Pradesh and Others (Original Suit No.1 of 1997)
under Article 131 of the Constitution, the State of Karnataka
sought, among others, that the Court direct the Union of India
to recognise that its publication of the final order of the Krishna
Water Disputes Tribunal was incomplete without the inclusion
of ‘Scheme B’ that was referred to in the final order as well as
in the modified final order of the Tribunal. A five judge bench
of the Supreme Court declared in answer to objections raised
by the State of Andhra Pradesh in relation to the said suit
being barred under Article 262:

“.. Thus Article 131 being subject to the other provisions of the
Constitution including Article 262, if Parliament has made any
law for adjudication of any water dispute or a dispute relating to
distribution or control of water in any inter state river or river
valley, then such a dispute cannot be raised before the Supreme
Court under Article 131 even if the dispute be one between the
Centre and the State or between two states. In exercise of
Constitutional power under Article 262 (1), the Parliament, in fact
has enacted the law called the Inter State Water Disputes Act,
1956 and Section 11 of the Act provides that neither the Supreme
Court nor any other Court shall have jurisdiction in respect of any
water dispute which could be referred to a Tribunal under the Act.
This being the position, what is necessary to be found out is

14
 whether the assertions made in the plaint filed by the State of
Karnataka and the relief sought for, by any stretch of imagination
can be held to be a water dispute, which could be referred to the
tribunal, so as to oust the jurisdiction of the Supreme Court under
Article 131”

State of Karnataka Vs. State of Andhra Pradesh and Ors.

A.I.R 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-Apr-2000.

29. In a matter connected with the above suit, another Original

Suit (Original Suit No. 2 of 1997) was filed by the State of Andhra
Pradesh against the State of Karnataka and others. The
plaintiff State sought several declarations from the Court with
a view to restrain, among others, the upper riparian State of
Karnataka from proceeding with projects which the plaintiff
State claimed were a continuing violation of the adjudication
effected by the Krishna Water Disputes Tribunal. The State of
Maharastra, Defendant No.3 in this Suit, advanced an objection
that the prayer made by the plaintiff State should not be
entertained under Article 131 in view of the bar placed upon
the jurisdiction of this Court under Article 262 of the
Constitution. The Court answered thus:

“It is not in dispute between the parties that the Inter State Water
Disputes Act, 1956 (hereinafter referred to as the Disputes Act) is
a legislation passed under Article 262 of the Constitution. It is
equally not in dispute that Section 11 thereof excludes jurisdiction
of this Court in respect of water disputes referred to the Tribunal.

15
 It will, therefore, have to be seen whether the State of Andhra
Pradesh, as plaintiff, having invoked the jurisdiction of this Court
under Article 131 has, in substance, raised ‘Water Dispute’ which
will exclude the jurisdiction of this Court as per Section 11 of the
Disputes Act read with Article 262 Sub-Article (2). In other
words, if in substance, the plaintiff wants adjudication of any
water dispute between it and the other contesting States, namely,
the State of Karnataka or the State of Maharastra which are the
upper riparian States located in the Krishna basin through which
the river Krishna, which is admittedly an inter-state river, flows”

“..Keeping in view the aforesaid salient features of the plaint of

the State of Andhra Pradesh, the nature of controversies raised
therein, reliefs claimed and the issues which fall for consideration
of the Court, it is difficult to agree with the contentions of
contesting defendants…It is obvious that the disputes raised by
the plaintiff State of Andhra Pradesh pertain to the alleged non-
implementation of the binding award of the Krishna Water
Disputes Tribunal by defendant No.1 State. It has nothing to do
with raising of a fresh water dispute”.

State of Andhra Pradesh Vs. State of Karnataka and Ors.

A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-2000.

30. Also, during the proceedings in the above Suit, (Original Suit
No.2 of 1997) filed under Article 131, the State of Maharastra,
defendant No.3, sought leave of the Court to raise an objection
to the raising of the height of the Almatti dam (controlled and
operated by the State of Karnataka) and this objection was

16
taken on the premise that some territories in Maharastra could
endure drowning or submergence thereof if the height of the
dam was not kept in check. The Court was further informed
that this objection was never raised by Maharastra before the
Krishna Water Disputes Tribunal because Maharastra did not
see any occasion to do so – the Tribunal had not considered
the question of clearance of any height of Almatti dam. The
Court observed:

“The aforesaid grievance of the State of Maharastra which is

defendant No.3 against defendant No.1 is really a dispute between
the two defendants and does not project any dispute qua the
plaintiff state, but even proceeding on the basis that suit under
Article 131 is a comprehensive one and seeks to resolve the
simmering dispute between all the contesting States which are the
riparian states situated in the inter state river Krishna basin and
not applying the strict yardstick of a suit before an ordinary Civil
Court, we have to appreciate the real grievance voiced by the State
of Maharastra against the height of Almatti dam”.

“… it may be mentioned that the dispute sought to be raised by

defendant No.3 State of Maharastra is against defendant No.1
State, namely, State of Karnataka regarding any increase in the
height of Almatti Dam beyond 519 metres or for that matter
beyond 512 metres which, according to the …State of Maharastra
can be the permissible height and which would have no adverse
affect of submergence in the Maharastra territory. However, this
dispute cannot be resolved in the present proceedings for the

17
 simple reason that it would assume the character of a ‘water
dispute’ as we will presently see”.

“..Thus on a conjoint reading of Section 2 (c ) (i) and Section 3(a)

of the Disputes Act such a grievance voiced by defendant No.3
State against defendant No.1 would consequently fall within the
fore corners of the Disputes Act enacted by the legislature under
Article 262. Once that conclusion is reached, the result becomes
obvious. This type of grievance and dispute cannot be adjudicated
upon by us under Article 131 and it is for the Maharastra State if
so advised to raise such a dispute which earlier it did not raise, by
filing an appropriate complaint under Section 3 of the Disputes
Act before the Central Government and once that happens
Section 4 of the Act would be automatically attracted”.

“Thus the grievance about submergence raised by Defendant No.3

State squarely falls within the scope of ‘water dispute’ between
defendant No.3 State and defendant No.1 State. For its resolution,
adjudication by the Tribunal is the only way out. ..In other words,
it remains an open dispute calling for its adjudication. It cannot
be considered by us under Article 131”.

State of Andhra Pradesh Vs. State of Karnataka and Ors.

A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-2000.

31. Also, in the judgment and order made in the above Suit
(Original Suit No.2 of 1997), Justice Banerjee observed:

“…Significantly, Sub Article 2 of Article 262 by its unequivocal

language expressly provides for a total ouster of jurisdiction of

18
 courts including the Supreme Court by parliamentary legislation
as regards resolution of such disputes. The subsequent legislation
as introduced into the Statute Book, namely the Inter State Water
Disputes Act, 1956 is such a legislation under Article 262 of the
Constitution and Section 11 thereof excludes jurisdiction of the
Courts including that of the Supreme Court in respect of a water
dispute”

“…Article 262 is specific as regards adjudication of disputes

pertaining to water whereas Article 131 provides for a general
power and conferment of jurisdiction of the Supreme Court…”

“There is, therefore, a total ouster of jurisdiction of all courts…”

“..The Test of maintainability of a legal action initiated by a State

in a Court would thus be whether the issues raised therein are
capable of being referred to a Tribunal for adjudication. In the
factual matrix of the matter under consideration, question of
adjudication of any water dispute within the meaning of Section 2
( c ) would not arise. The suit pertains to implementation but does
not require any further adjudication of water rights between the
States..”

State of Andhra Pradesh Vs. State of Karnataka and Ors.

A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-2000.

32. In an Original Suit filed under Article 131 by the State of

Haryana (Original Suit No.6 of 1996) against the State of Punjab
and the Union of India seeking a mandamus to a certain effect

19
from the Supreme Court was resolved thus when a challenge
was mounted by the State of Punjab upon the jurisdiction of
the Supreme Court to entertain a suit under Article 131 in view
of Article 262 of the Constitution read with Section 11 of the
Inter State Water Disputes Act,1956:

“..The averments in the plaint and the relief sought for by the
State of Haryana is not in the water from Ravi Beas project. The
entire dispute centres around the question of the obligation on
the part of the State of Punjab to dig the portion of SYL Canal
within its territory which canal became necessary for carrying
water from the project to the extent the said water has already
been allocated in favour of the State of Haryana under the
provision of the Punjab Reorganisation Act and the Subsequent
agreement between the parties…Thus the construction of SYL
Canal is essentially one for the purpose of utilising the water that
has already been allotted to the share of Haryana and
consequently, cannot be construed to be in any way inter-linked
with the distribution or control of water of, or in any inter-state
river or river valley”.

“There cannot be any dispute with the proposition that in the

event the present dispute between the two States would come
within the definition of ‘water dispute’ in Section 2 ( c ) of the Act
and as such is referable to a Tribunal, under Sec.11 of the Act then
certainly the jurisdiction of this Court would be barred in view of
Article 262 of the Constitution read with Section 11 of the Act”.

State of Haryana Vs. State of Punjab and Anr.

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 (2002) (2) SCC 507) : 2002 (1) SCR 227. Decided on 15-Jan-2002.

33. In deference to the issues raised and the answer awarded

thereat in the Original Suit filed by the State of Haryana
(referred to in above paragraph) the State of Punjab filed an
Original Suit (Original Suit No.1 of 2003) before the Supreme
Court seeking several reliefs by placing State of Haryana as
the Respondent and the State of Haryana in response
advanced an additional prayer under its subsisting Original Suit
(Interlocutory Application No.4 in Original Suit No.6 of 1996)
whereof, among other things, the Supreme Court was asked to
revisit its stand on the role of Article 262 in foreclosing a Suit
filed under Article 131. The Court answered thus:

“The objection as to the jurisdiction of this Court on the basis of

Article 262 was specifically negatived in the judgment dated 15-
Jan-2002 (State of Haryana Vs. State of Punjab and Anr.)
(Supra)”

“As we have said, both issues pertaining to the Court’s jurisdiction

under Article 145(3) and 262 have been considered and decided
by this Court. The issues have been concluded inter parties and
cannot be raised again in proceedings inter parties”.

State of Haryana Vs. State of Punjab and Anr.

WITH

State of Punjab Vs. State of Haryana and Ors.

(2004) (12) SCC 673 : 2004 (6) SCALE 75. Decided on 04-01-2004.

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34. In a Writ Petition filed before the Supreme Court, the
Petitioner, Mullaperiyar Environmental Protection Forum, a
private group, raised several objections to the raising of the
Mullaperiyar Dam beyond a certain level and for a declaration
that the Agreement of 1886 (between Maharajah of Travancore
and Secretary of State for India in Council) and the Modified
Agreement of 1970 (between the State of Kerala and the State
of Tamil Nadu) be declared as ‘null and void’. It may be noted
that the States of Kerala and Tamil Nadu have maintained
competing claims over certain operational aspects of the
Mullaperiyar Reservoir.

To decide the controversy on hand, the Supreme Court framed

as one of the issues,
“whether the jurisdiction of this Court is barred in view of Article
262 read with Sec.11 of the Inter State Water Disputes Act,1956”.

Reiterating that the jurisdiction of the court was indeed barred

under Section 11 of the Inter State Water Disputes Act, 1956
read with Article 262 of the Constitution in the matter of a
‘water dispute’, the Court specified that the controversy before
it was not a water dispute. It said,

“In the present case, however, the dispute is not the one
contemplated by Section 2 ( c ) of the Act. Dispute between Tamil
Nadu and Kerala is not a ‘water dispute’. The right of Tamil Nadu
to divert water from Periyar reservoir to Tamil Nadu for
integrated purpose of irrigation or to use the water to generate

22
 power or for other uses is not in dispute. The dispute is also not
about the lease granted to Tamil Nadu in the year 1886 or about
supplementary agreements of 1970. It is not in dispute that the
dam always had and still stands at the height of 155 Ft. and its
design of full water level is 152 Ft. There was also no dispute as to
the water level till the year 1979. In 1979, the water level was
brought down to 136 ft. to facilitate State of Tamil Nadu to carry
out certain strengthening measures suggested by the Central
Water Commission. The main issue now is about the safety of the
dam on increase of the water level to 142 Ft. For determining this
issue, neither Article 262 of the Constitution of India nor the
provisions of the Inter State Water Disputes Act, 1956 have any
applicability”.

Mullaperiyar Environmental Protection Forum Vs. Union of India and

Ors.

A.I.R. 2006 SC 1428 : (2006) (3) SCC 643. (Decided on 27-Feb-2006).

35. The above decisions fully support the conclusion that neither
Article 131 nor Article 136 affords a statutory or other relief to
any State that is not happy with the order of a Water Disputes
Tribunal.

36. Further, certain continuing actions before the Supreme Court

that pertain to water disputes between States may have to be
monitored and noted for departure from previous rulings.
Some of them are:

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37. By its Judgment and order dated 04-06-2004 coming after its
direction on an Original Suit (referred to in para 23 above), the
Supreme Court ordered the State of Punjab to hand over the
SYL Canal works to a central agency that was envisaged to
complete the work on the SYL canal and arrangements in this
respect were thrust upon the States of Punjab and Haryana
and the Union Government. The Court said that such an action
became necessary after persistent refusal by the State of
Punjab to abide by its obligation to complete the work on the
SYL canal within its territory and which work was nearly 90 %
complete. Aggrieved by this Order, the Legislature of the State
of Punjab passed the “Punjab Termination of Agreements Bill,
2004” on 12-July-2004 which received the assent of the
Governor of Punjab shortly afterwards. The “Punjab Termination
of Agreements Act, 2004” was passed for the express purpose of
enabling the State of Punjab to abrogate its prior commitments
and obligations to other States in the matter of sharing the
waters in the Ravi, Beas and Sutlej rivers. The Central
Government, hindered by this development, preferred the
directions of the Supreme Court on 15-Jul-2004. The President
of India sought the advice of the Supreme Court on 22-July-
2004 in the matter under Article 143 of the Constitution. Acting
on the Presidential Reference, the Supreme Court directed
notices to the States of Punjab, Haryana, Himachal Pradesh,
Rajasthan, Delhi and Jammu and Kashmir on 2-Aug-2004. The
Supreme Court is yet to deliver its verdict on this Reference.

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38. Writ Petition (Civil) No.537 of 1992 filed by a private person
before the Supreme Court involved the issue of supply of
drinking water to the inhabitants of Delhi ([Link] D
Sinha and Ors against the Union of India and others). One of the
respondents, the State of Haryana had challenged the
jurisdiction of the Supreme Court on certain aspects of this
issue by reason of the bar placed under Article 262 of the
Constitution and by the provisions of the Inter State Water
Disputes Act, 1956. Arguments in this case continue and the
Supreme Court has, in response to the objection raised by the
State of Haryana, directed that the constitutional challenges
raised by the State of Haryana should be separately
considered and dealt with.

39. It therefore appears that either under Article 131 or Article

136, the Supreme Court may not choose to sit on appeal over
the order of a Water Disputes Tribunal to an extent that a
State, not happy that the Tribunal’s order does not advance its
claims and views, is afforded substantial relief thereby.

40. It may therefore be said that the Constitution excludes the

jurisdiction of the Supreme Court from adjudicating upon a
water dispute between States and that the Supreme Court is
not ousted from jurisdiction to restrain a State from violating
the terms of an award issued by the competent water dispute
tribunal. The authority of the Supreme Court to restrain a State
from engaging in any conduct detrimental to the interests of
other States in disputed waters extends to, among others,

25
directing the Central Government to constitute a tribunal to
adjudicate upon a water dispute raised before it and to
determine if a tribunal is competent and authorised to offer a
relief sought by a party State.

Regards

[Link]
Advocate
Supreme Court of India
New Delhi
Email : dhananjaylegal@[Link]

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