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PENNAIYAR RIVER DISPUTE -SC dismissed the IA filied by government of Tamilnadu

STATE OF TAMIL NADU VS.  STATE OF KARANATAKA AND OTHERS, I.A. NO.95384 of 2019

Hon’ble Justice- Uday Umesh Lalit, delivered the judgment regarding the suit which is filed before the Supreme Court by state of Tamil Nadu against state of Karnataka and Union of India

ISSUES

  1. Whether the state of Karnataka had violated the terms and conditions of agreement of the 1892 &1933 agreement or not?

  2. Whether central government failed to take necessary actions against state of Karnataka?

  3. Whether IA filed by plaintiff to stop the construction of dam across Markandeyanadhi near Yargol Village and direct the State of Karnataka and its instrumentalities not to obstruct the natural flow are valid and maintainable?

The plaintiff contented that, 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 was laid down by the court in state of Karnataka vs. state of tamilnadu. 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 Another a tributary would be part of the Inter State River and as such would be covered by said agreement. Clause 1(3) of the Agreement of 1933 permitted creation of anicuts.but this will not apply for irrigation project which may lead to construction of dam of height 36metres. When plaintiff requested for information regarding the schemes in Pennaiyar basin, no such information was provided the state of Karnataka.and complaints were given to central government but no actions was taken.

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. 

The first defendant contented that, this suit is not maintainable in view of the express mandate under Article 262 of the Constitution of India read with Section 11 of the Act. Agreement of 1933 would apply only in respect of irrigation projects and would not cover drinking water projects. And 75% to 80% of construction work was already completed which was undertaken after due sanctions and permissions from the concerned authorities.

The second defendant contented that, there was no request made in the prescribed form 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. The competing points raised by the parties regarding the facts of the case, including the preservation of the action, would definitely be brought into play after the parties have been given the opportunity to present evidence in accordance with the law and to make appropriate submissions. At this juncture, we are asked to consider whether any interim directions are needed pending consideration of the present case. From the record, it is prima facie obvious that after receiving all the necessary sanctions and permissions, the project in question was undertaken. The issue has attracted the authorities ‘ attention for a while, the construction work began few years back; and as of now 75% work is complete. Therefore, no case is made out for granting any interim relief.

The Supreme Court demanded show any communication where the plaintiff had invoked the power of the Central Government and sought constitution of an Inter State River Water Disputes Tribunal to consider the present controversy. It 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.

Section 3 of the Act provides for an application to be made in the form and manner that may be prescribed, after which the Central Government may exercise the required power. Therefore, it will not be right for us to infer such an idea from the complainant’s communications to the second defendant and then find that the second defendant is guilty of not constituting a tribunal under the act.

In such circumstances, the claimant is allowed to send an appropriate application invoking the Central Government’s powers under the provisions of the Act and to pursue the establishment of an Inter State River Water Disputes Tribunal. If the applicant is instructed to do so, that request may be made within four weeks of this order date.

Hence there is no reason to entertain the present application. Therefore is dismissed. And the Suit is listed for further directions on 10th January, 2020.

Amrutha M

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