October 12, 2013

Telangana river waters, irrigation & agriculture-9 (Interpretation of Indian water legislation)

Atma Linga Reddy & Ors v. Union of India & Ors, 2008

In the case of Atma Linga Reddy & Ors v. Union of India & Ors, 2008, the petitioners owning lands in the RDS (Rajolibunda Diversion Scheme) ayacut approached the Supreme Court praying for a stay against construction of a power project in Karnataka. They contended that the bar on judicial intervention under section 11 does not extend to private individuals. Justice CK Thakker rejected the contention.

The court noted "another equally sustainable and well-founded reason for not entertaining the so-called grievance of the petitioners". The issue was already being considered by KWDT-II (issue 22A: "Whether the State of Karnataka is entitled to construct Mini Hydel Power Project from the common bondage of Rajolibunda Diversion Scheme without the consent of State of Andhra Pradesh?") and AP was acting as parens patriae in this matter. The subject matter was therefore clearly a water dispute taken up by an appropriate tribunal.

Justice Thakker took a dim view of AP's withholding information about KWDT-II's consideration of the issue. In his stricture, he wrote:

"The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State' and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondent- State of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so".

R. Krishnaiah v. Union of India, 1996

One R. Krishnaiah approached the AP high court under article 226 praying for implementation of the Bachawat Commission (sic!) award. The petitioner's primary interest was AP & Karnataka governments were among those impleaded as respondents.

On the question of the scope of section 11, Chief Justice Prabha Shankar Mishra wrote: "The Supreme Court or any other Court, if its jurisdiction is not otherwise barred, can always issue a direction to the Central Government to perform its duty and to restrain other States who are likely to violate the award/decision of the Tribunal".

Justice Mishra found AP had "maintained as vigorous if not more vigorous position as the petitioner". The learned judge accordingly rejected the leave for appeal to Supreme Court sought by the petitioner and held the issue has to be resolved between AP & Karnataka.

Explaining the rationale behind the decision, Justice Mishra wrote: "Parens Patriae status of the Government of the State under the scheme of our Constitution is indeed recognized as water disputes are not always raised on a just a cause and people arrayed on both sides take on many occasions very hard and uncompromising stands. While State Governments in their sovereign capacity are expected to protect and represent the interests of all its people they do not act as at adversaries in the usual sense".

Andhra Pradesh v. Karnataka & Ors, 2000

As a fallout of the R. Krishnaiah judgment, AP approached the Supreme Court (Andhra Pradesh v. Karnataka & Ors, 2000 i.e. the Almatti dam case) praying the court to "declare that the report/decision dated 24.12.1973 and the further report/decision dated 27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India" and an injunction against the construction of several projects including the Almatti dam.

AP's case was the enbloc allocation to Karnataka "has to be read in the light of the relevant stand of the parties before the tribunal, the facts and figures produced before the tribunal and the ultimate basis on which the conclusion was arrived at". In other words, AP claimed KWDT allocated water to specific projects listed in the report. Interpreting sections 5 (2) and 6 of ISDA, the court rejected AP's contention that the entire tribunal report should be treated as equal to a judgment and the decision was similar to a decree. The phrase ""facts as found by it and giving its decision" in 5 (2) was interpreted as the report being ""facts as found by it" while the gazetted decision (award) was covered by "giving its decision".

Justice Gopal Ballav Pattanaik wrote: "At the outset we are unable to accept the contention of Mr. Ganguli that the decision of the Tribunal which is ultimately notified under Section 6 of the Act can be held to be a decree of a suit and the report being the judgment and, therefore, the decided case laws on which reliance has been placed has no application at all. The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution is a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of the very Act itself".

Justice Pattanaik also decided "Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties".

AP's request that all riparian states are duty bound to disclose to each other & the central government details of projects taken up after 1973 was denied. Justice Pattanaik ruled: "Though it may be fully desirable for all the States to know about the developments of the other States but neither the law on the subject require that a State even for utilization of its own water resources would take the consent of other riparian States in case of an Inter-State river".

In a separate but related issue, the learned judge rejected AP's contention that AP's concurrence was required for the Almatti dam. He held: "Neither there exists any law which compels any State to get the concurrence of other riparian States whenever it uses water in respect of inter-State river nor the decision of the Tribunal which allocates the water in the Krishna Basin on the basis of 75% dependability which figure was in turn arrived at by an agreement of parties puts any condition to have the concurrence of other riparian State".

Justice Shailesh Majmudar in his concurring opinion held the dispute related to execution of KWDT decision and therefore not a water dispute under section 3. He ruled: "The grievance of the plaintiff State is that though the decision is binding on the upper riparian States namely, defendant nos. 1 and 3, the executive action of the concerned States amount to flouting and violation of the binding decision of the Tribunal. This clearly raises a question of execution and implementation of an already adjudicated water dispute. Once that conclusion is reached, it becomes obvious that Article 262 would be out of picture and only Article 131 will remain operative for being invoked by the disputant State against the defendant States, as it would certainly raise a dispute regarding execution and implementation of binding award of the Tribunal and, therefore, a contest does arise between two or more States on this score".

Karnataka filed a counter case that was decided at the same time. Karnataka's contention scheme B was a part of KWDT decision was also rejected on the same interpretation of section 6 as above.

Cauvery presidential reference, 1991

Tamil Nadu (TN) petitioned CWDT to prevent Karnataka from impounding or utilizing water in excess of beyond the past extent. TN followed up by praying for release of 20 TMC as an emergency relief. Karnataka & Kerala objected arguing the tribunal had a limited jurisdiction without any inherent powers. The tribunal refused to grant relief on the ground that interim relief was not included in its reference.

TN & Pondicherry approached the supreme court. The apex court held the interim relief was under the purview of the dispute and directed the tribunal to decide the interim relief request on merit. The tribunal accordingly considered the request on merit and granted relief to TN. Karnataka passed an ordinance in an attempt to nullify the tribunal's order. The central government raised a presidential reference seeking supreme court's opinion under article 143.

Before going further, it may be noted the jurisdictional bar in section 11 of ISDA was not deemed to prevent the supreme court from hearing the case. This firmly establishes section 11 is limited to inter-state water disputes referred or liable to be referred to a tribunal.

Karnataka argued the ordinance was covered under entry 17 and, in the absence of a river board setup under RBA, a state retained full legislative powers under entry 17. It also submitted that ISDA envisaged only one decision and therefore the impugned interim award could not termed as a "decision" under section 5 (2).

TN inter alia argued that a tribunal had "inherent jurisdiction" to grant interim relief and such a decision would be a "decision" under section 5 (2). TN also contended the impugned ordinance was extra-territorial and therefore Karnataka had no right under entry 17.

The court opined the ordinance was an "an extra-territorial operation, and is thus beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1) of the Constitution". The court passed severe strictures against Karnataka stating "it has assumed the role of a judge in its own cause". Karnataka was also held to have challenged the apex court's order directing CWDT to consider the interim relief on merit.

Karnataka's claim that interim award was not a part of the tribunal reference was negated: "Sub-section (1) of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute, but any matter appearing to be connected with or relevant to it. A request for an interim relief, whether in the nature of mandatory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute".

Karnataka's contention that the interim award was not a decision was rejected: "It is not correct to say that since the Order does not say that it is a report and decision it is not so under Section 5 (2) of the Act. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. The contents of the order clearly show that it is a report and a decision within the meaning of Section 5 (2)".

It should be noted that the supreme court's response to a reference under article 143 is an "opinion". The foregoing should be read accordingly. Having said this, there are no known cases where such an "opinion" was treated as being inferior to a judgment insofar as stare decisis is concerned.

Tribunal interpretations

KWDT asserts (volume I, page 100) "The decision of the Tribunal overrides all repugnant State legislation and executive action. In this manner, the plenary powers of a State over the waters of the inter-State river and river valley within its jurisdiction are regulated and controlled by the decision of the Tribunal". This is based on the phrase "final and binding on the parties" in section 6 of ISDA and the fact that state legislation is covered by section 3 (a).

On the same page, KWDT states "If there is competent legislation by Parliament on the subject of the apportionment of the waters of an inter-State river and river valley, that law binds all the States and there is no room for an inconsistent apportionment. The Tribunal has no power to override the paramount Central Legislation". While the source of this assertion is apparently based on Arizona v. California, 373 U.S. 546 (1963), ISDA does not provide any such right to a tribunal. Only state legislation is covered by section 3 (a).

KWDT (volume I, page 105) states: "However, the Union Government and the Planning Commission have no statutory authority to allocate the water resources among the States or to fix the order of priorities for their projects. If a water dispute arises and the same cannot be settled by negotiations, a reference has to be made to a Tribunal appointed under the Inter-States Water Disputes Act, 1956, for adjudication of the dispute". The phrase "has to be" is based on "shall" used in section 4 (1) of ISDA.

ISDA section 6 (A)

KWDT report text (volume II, pages 42-47) relates to the proposed Krishna Valley Authority (KVA). The first draft of the proposed water sharing formula (Scheme B) is provided in pages 64-65 of the same volume. This was modified in response to Karnataka's clarification III after the final request was submitted. Scheme B as finalized is provided in pages 32-39 of volume IV.

Maharashtra, Karnataka & AP filed a document (exhibit MRK-340) before the KWDT. This inter alia envisages the setting up of "a joint control body to give effect to the decision of the Tribunal". While the states differed on the water volume to be apportioned and percentage shares, this was left to the tribunal's adjudication. The tribunal accordingly submitted drafts of the scheme for the parties to consider.

After considering the drafts, Maharashtra agreed to the proposal while Karnataka while agreeing suggested certain modifications. AP, on the other hand, made a U-turn stating "Andhra Pradesh is unable to give its formal consent to set up the Krishna Valley Authority having the constitution and powers as mentioned in Part II".

Maharashtra objecting to AP's volte face submitted that AP's acceptance was not necessary. Relying on the word "final and binding" in section 6 and the jurisdictional bar cited in section 11, the state argued "A final and binding adjudication of a water dispute can only be made by the Tribunal which has power to make its decision effective by setting up, if necessary, a controlling body or authority which would implement the decision of the Tribunal". Maharashtra, in short, sought to apply the principle "ubi aliquid concediture, concediture etiam id sine quo res ipsa non esse potest" (a duty imposed or a power granted by Parliament carries with it the power necessary for its performance or execution).

Maharashtra also stressed other grounds including the argument that MRK-340 constituted an agreement. Karnataka pleaded the proposed KVA "is a necessity which cannot be avoided".

AP rejected the argument that MRK-340 was an agreement claiming only Parliament can create such a body and also on grounds of implementation shortcomings. The state also argued KVA was a Corporation and setting this up falls in the jurisdiction of Parliament, not tribunal. It was also submitted that "power to adjudicate is different from the power to execute the decision and in the absence of conferment of any express power on the Tribunal to pass an executable order the Tribunal cannot exercise this power".

KWDT rejected AP's contention on the limitations of adjudication. The tribunal did not accept Maharashtra's argument that MRK-340 constituted an agreement due to the implementation shortcomings pointed out by AP. While rejecting AP's "corporation" argument, KWDT did not elaborate as it gave up the KVA idea. Interestingly the tribunal did not delve into Maharashtra's "duty carries with it necessary powers" argument. This is not surprising given the importance given to the wider encompassing concept of "judicial intent" in Indian jurisprudence.

Concluding the matter, KWDT wrote: "After deeply pondering over the matter we have come to the conclusion that it would be better if we devise two schemes for the division of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Schemes A and B. Scheme A will come in operation on the date of the publication of the decision of this Tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament". It noted "propriety of the matter rather than legality" as the prime factor behind this decision.

The subject came up again after the final report was submitted. The central government in its clarification 6 requested for a modus operandi for water sharing in deficit year. KWDT replied: "Scheme ' B ' which provides for sharing of both surplus and deficiency in the entire Krishna river basin could not be implemented for reasons given in the Report and on account of the opposition by Andhra Pradesh, In the scheme of allocation embodied in the Final Order, Andhra Pradesh will be at liberty to use the excess flow in surplus years and at the same time will have to bear the burden of the deficiency in lean years save as indicated in this Report".

Karnataka's clarification II requested for implementation of scheme B. The tribunal in response outlined the previous initiatives in this direction and wrote (volume IV, page 30):

"However, one of the States did not agree to Part II of the Scheme, see Report Vol II pages 521-522 We have pointed out that it, is unwise and impractical to impose an administrative authority by a judicial decree without the unanimous consent and approval of the parties, see Report Vol II page 539 Even to day, the State of Andhra Pradesh is opposed to the implementation of Scheme 'B' and to the constitution of Krishna Valley Authority Consequently the Krishna Valley Authority which includes a nominee of Andhra Pradesh as envisaged by the common draft of Part II of Scheme 'B' cannot be constituted Unless the Krishna Valley Authority is constituted, Scheme ' B' cannot implemented". The tribunal reiterated that the best way to setup the authority was agreement among the parties or central legislation.

Justice Umesh Chandra Banerjee in his concurring judgment in Andhra Pradesh v. Karnataka & Ors, 2000 touched upon the subject. He initially expressed surprise that KWDT chose to take upon itself the framework of scheme B without the necessary power to constituite KVA. Going into the KVA related discussions at KWDT, he comes to "an unmistakable conclusion that the Tribunal wanted to provide certain guidelines to the Krishna Valley Authority as and when it is so constituted and significantly, the Tribunal itself has left it to the good sense and better appreciation of the parties or the legislative intent for the formation of such an authority".

Justice Pattanaik in Karnataka's counter case dwelt into the matter at some length stating: "While placing Scheme 'B' in its Report the idea was that the labor of the Tribunal in evolving the Scheme would not be totally lost and that is why it hoped that the parties may agree for constituting an authority or if they fail to agree the Parliament also could make a law but unfortunately, neither of the two contingencies has happened".

Issue # 8 in Karnataka's counter case reads: "8. Whether insertion of Section 6A in 1980 in the ISWD Act, 1956, ipso facto entitles Karnataka to seek implementation of Scheme 'B' as referred to in the reports of the Tribunal by framing a scheme? (Karnataka as modified by AP)". The court did not take up the issue on merit as scheme B & KVA have already been held not to be a part of the KWDT decision. This is based on the phrase "necessary to give effect to the decision of a Tribunal" in 6 (A) (1).

It is pertinent to note here that the amendment of 1980 inserting section 6 (A) was enacted after the KWDT-I decision came into force after the due process of gazette notification.

KWDT-II notes (pages 828-829): "it is the duty of each State to the dispute to act in accordance with the decision rendered by the Tribunal. The decision given by the Tribunal is to be followed and given effect to by the parties without there being anything else to happen or to be provided for. But for the purposes of better implementation of the provisions made in the decision, it may be helpful to have a machinery to do so. It may be helpful to the parties to the dispute also as they would be getting assistance in giving effect to the decision. We find that under sub-section (1) of section 6A of the Act, the Central Government has also been authorized to frame a scheme, if it so chooses to do, for implementation of the decision of the Tribunal". Accordingly the tribunal finalized a scheme for setting up of Krishna Waters Decision- Implementation Board (KWD-IB). This was included in clause XVIII of the decision with the details of the scheme together with Appendix-I of the decision.

"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written": Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803)


  1. is this your thesis that you are posting online

    1. This is the report of my study spread over an year.

  2. Jai, finally you are coming to the subject. I am confused when you write about bible, koran etc but now I am getting the picture.

    When are you writing about Bachawath award?

    1. Thanks for the comment.

      I will come to the main content of KWDT-I (Bachawat) report after a few more posts.

    2. Jai, can a tribunal allot water to a specific project?

    3. Very interesting question.

      Do you refer to a project that has no inter-state implications? If so, a tribunal has no right to interfere. Remember a tribunal can be constituted only when two or more states have a water dispute that can't be resolved through "normal" channels.

      The situation becomes interesting in the case of inter-state implications. If the total water for the project is already established (for example by agreement), a tribunal can divide the share between the disputing states.

  3. Who do you think you are? Great people like Dr. JP and Dr. Parakala already proved everything. Are you better than these intellectuals?

    1. I am what I am.

      Dr. Narayan & Dr. Prabhakar may be great in your opinion. Even if true, it does not automatically follow everything they say is correct.

      Please judge a work on merits, not based on the personality of the individual.

  4. Jai, please show your viswaroopam or roopam. You are a mystry that I always wanted to see. You do not make any sense to any one, but you are different from all others that I have seen online. You are just nuts to heights. Just crazy nuts not rogue nuts like missiontelangana.

    1. If you don't have any meaningful comment, it is better to stay silent.

  5. As per Nalamothu Chakravarthy's book, Nizam canal irrigation grew from 1.1 lakh to 3 lakh hectares from 1956 to 2001. In the same period Kosta growth was modest from 11 to 12.2 lakh hecteres. How can you compare 11% growth in Kostha to 162% in Naizam?

    1. Venkat, did Mr. Chakravarthy reconcile the "growth" numbers he quotes by citing the relevant projects?

      As far as I know, Nagarjunasagar right canal that is dedicated only to Andhra irrigates around 5 lac hectares.

      The left canal irrigates just under 5 lac ha. According to Chakravarthy himself, around 25% of this canal is for Andhra.

      So the "new" irrigation from Sagar is 5 lac (right) plus 5/4 (left) i.e. 6.25 lakh ha for Andhra and 3.75 lakh ha for Telangana. This is just from one project.

      Maybe you should ask Chakravarthy how he calculated 1.2 lakh ha growth for Andhra & 1.8 lakh ha for Telangana?

  6. Can a state go to supreme court against tribunal award plz

    1. No, section 11 bars supreme court's jurisdiction in matters adjudicated by a tribunal. A state can however approach the supreme court if a fellow riparian state fails to implement a tribunal's decision.

  7. you support maharastra on babli and karnataka on almatti. i think you are not a telugu

    1. I don't know why you insist an individual's opinion should depend on his language, region, state, country etc. Will a person lose his ability to understand & analyze facts just because his language happens to be a Telugu?

      In any case, I am *not* supporting Maharashtra or Karnataka. I am providing enough background material on the relevant subjects to enable you to check for yourself.

    2. Supreme Court quashed (section 82) the suit filed by Andhra Pradesh against the construction of Babhali project. However Supreme Court has given landmark judgment (section 83 ii b) on the Babhali project dispute stating that the gates of Babhali barrage remain lifted during the monsoon season, i.e, July 1 to October 28 and there is no obstruction to the natural flow of Godavari river during monsoon season below the three dams mentioned in Clause II (i) of the agreement dated 06.10.1975 towards Pochampad dam. Thus Pochampad reservoir is accorded top priority to receive river water by keeping the flood / river sluice gates open (i.e. no obstruction to natural river flow) at all other major, medium & minor dams / barrages towards Pochampad dam.

      All the relevant information is available at the liks given here:
      http://www.indiankanoon.org/doc/160288133/ Supreme Court verdict on Babhali project dispute.
      http://en.wikipedia.org/wiki/Godavari_Water_Disputes_Tribunal Godavari Water Disputes Tribunal

      The above relief given by SC would avert water shortages faced by the Pochampadu irrigation Project in most of the years as the Maharashtra is not legally entitled to impound the river water in the reservoirs from the catchment area during the said monsoon season.

      Please express your legal perspective on this verdict.
      Best regards.

    3. Interesting observation.

      You may also have noted that Maharashtra offered the same or similar on several occasions (see a few excerpts below). The learned judge probably incorporated it in the judgment to give it "teeth".

      "The gates of Babhali barrage are, therefore, proposed to be kept open during monsoon period up to latter half of October as if there is no barrage and lowered thereafter to create necessary small pondage in fair- weather to meet the needs in Maharashtra out of the permitted share of 60 TMC. The barrage crest level at Babhali is at river bed level and there will be no obstructions to Godavari river flows up to Pochampad dam during monsoon period".

      "Maharashtra has suggested without prejudice to its rights and contentions that it is willing to reimburse 0.6 TMC of water to Andhra Pradesh by releasing the same on 1st March every year. Maharashtra has submitted that the operation of Babhali barrage can be supervised by a committee consisting of representatives of Central Water Commission and of states of Andhra Pradesh and Maharashtra. This committee will supervise that the gates are lowered on the 28th October each year and will remain in operation till the end of June next year and that on the 1st of March the gates will be lifted to allow the flow of water of 0.6 TMC to Andhra Pradesh. Thus, even 0.6 TMC will not be made use of by Maharashtra".

      "Maharashtra, on the other hand, says that Andhra Pradesh has ignored the fact that Babhali barrage comes into operation only after October 28 and the 75 per cent dependability yield at Babhali barrage after that date is only 2.73 TMC. Maharashtra asserts that it has calculated the actual 75 per cent available flows from October 29 to May 31 from 1968 to 2004 which comes to only 2.73 TMC at 75 per cent dependable yield".

    4. My query is not confined to only Babli barrage. I want to know whether the other barrages / dams (14 barrages constructed above the Babli barrage, Majalgoan dam, etc.) located below the Paithan, Siddheshwar & Nizamsagar dams (the three dams mentioned in Clause II (i) of the agreement dated 06.10.1975). The catchment area located downstream of these three dams up to Pochampadu dam is nearly 40, 000 square km. When water could not be stored in the reservoirs located in this catchment area during the monsoon season by keeping the sluice / flood gates open, the rain water flowing (natural flow) in the river is adequate to fill the Pochampadu reservoir in most of the years.
      My sought clarification is whether Maharashtra is legally bound to keep open all the gates of numerable reservoirs for not to cause obstruction to the natural flow of Godavari river

    5. Maharashtra can use upto 60 TMC of water in all the *new* schemes in the defined region put together. This includes additional utilization over sanctioned use in the "old" schemes.

      This can be only kharif or a mix of both crops at Maharashtra's sole discretion. There is no bar either in the agreement or in the judgment. The only limitation is that it should not exceed 60 TMC.

      The decision relating to keeping the gates open till October 28 is applicable *only* to Babhali.

      "76. We have also examined the list of major, medium, minor (state sector), minor (local sector) of the projects sanctioned after 06.10.1975 below Paithan dam up to Maharashtra – Andhra Pradesh state border. A careful look at the said list shows that for the diverse projects sanctioned after 06.10.1975 in Godavari river below Paithan dam up to Andhra Pradesh state border, the total utilization is of 63018 MC feet (63.018 TMC) and the net utilization is 59112.70 MC feet (59.11270 TMC). Andhra Pradesh is right that total utilization of waters for new projects sanctioned after 06.10.1975 is 63.018 TMC. However, as noted above, the net utilization by Maharashtra of the projects sanctioned after 06.10.1975 is 59.11270 TMC. In any case, Maharashtra has to ensure that it does not exceed the restriction placed upon its utilization in Clause II(i) of the agreement dated 06.10.1975"

      "(ii) The thrust of the parties in Clause II(i) of the agreement dated 06.10.1975 and the essence of this Clause is to put a cap on the right of Maharashtra to utilize water of Godavari river below the three dams mentioned therein up to Pochampad dam site *to the extent of 60 TMC for new projects and in no case exceeding that limit*. There is no demarcation made in the agreement that the utilization of waters not exceeding 60 TMC for new projects by Maharashtra shall be from the flowing water through the river from the catchment area only".

    6. SC judgment (Para 81 iv, 50 & 29) has accepted the contention of Maharashtra (MR) that it has water rights of using 60 tmc for new projects up to Pochampadu dam structure on Godavari river well inside AP territory. i.e. MR has right to draw / lift water from Pochampadu reservoir till its water utilization is not exceeding 60 tmc from the waters generated in the catchment area below the Paithon , Siddeshwar, Nizamsagar dams and above Pochampadu dam structure/site. Thus Pochampadu reservoir has also become storage reservoir of MR as per Clause IIIC of Final Order of the Godavari water disputes tribunal (GWDT). The river bed level in MR area technically permits MR to lift water from Pochampadu reservoir for use in its area without any help / acceptance from AP more than 60 tmc. (para 50)
      Clause II of agreement between MR & AP dated 6/10/1975 as interpreted by SC says only balance water after utilization of 60 tmc by MR available in Pochampadu reservoir can be utilized by AP. Thus MR has first right to utilize water from Pochampadu reservoir to meet any deficiency in any water year till it utilizes 60 tmc totally in its area. However clause IIIC of Final Order of GWDT says that when water is stored in a reservoir, the evaporation and seepage (natural causes) losses from the reservoir shall be accounted in a water year whether water is used or not for any beneficial purpose. Pochampadu reservoir is a huge reservoir (175 square miles water spread) with nearly 15 tmc evaporation loss excluding seepage loss. So these losses must be accounted under MR water use (60 tmc) entitlement as it has first right on water use from the reservoir and AP is left to use balance of water only. Pochampadu reservoir was constructed by AP without any financial contribution by MR. Most of the reservoir submergence is in AP with only river bed submergence in MR. When substantial water use rights are made available on Pochampadu reservoir to MR by SC judgment by treating it as joint project of MR and AP, it is also reasonable and just to account the evaporation and seepage losses to MR on first user /right basis under clause IIIC of Final Order of GWDT.

      Please inform your legal perspective on these aspects

    7. I assume you are Mr. Ramachandra based on the sound grip on the subject.

      Before going into the interesting line of thought, can I ask you a favor please? Please use the name/URL option for your comments. The URL part can be your web site (if any) or left blank. This will help me (and the other viewers) differentiate between yourself & the other Anonymous commenters.

      At a first glance, your question can't be settled by the judgment. Unfortunately this forces us to try interpreting it ourselves.

      You wrote: "Thus MR has *first* right to utilize water from Pochampadu reservoir to meet any deficiency in any water year till it utilizes 60 tmc totally in its area".

      Let us see the excerpts from the judgment. I am ignoring paragraph 29 as it is a summation of contentions rather than a judicial pronouncement.

      Paragraph 50: "The use of the expression, “all the balance waters up to Pochampad dam site” signifies that parties agreed that on utilization of waters *not exceeding 60 TMC* for *new* projects by Maharashtra from the waters in the geographical area of the Godavari basin, all the balance waters up to Pochampad dam site is *left* for utilization by Andhra Pradesh for its beneficial use".

      Paragraph 81 (ii): "(ii) The thrust of the parties in Clause II(i) of the agreement dated 06.10.1975 and the essence of this Clause is to put a cap on the right of Maharashtra to utilize water of Godavari river below the three dams mentioned therein up to Pochampad dam site *to the extent* of 60 TMC for new projects and in no case exceeding that limit".

      Paragraph 81 (iv) uses an arguendo approach to establish that "a case of substantial injury of a serious magnitude and high equity that moves the conscience of the Court has not been made out by Andhra Pradesh justifying grant of injunction". This approach allows a debate on alternate assumptions without endorsing or conceding them even the slightest. As AP's contention is already rejected in 81 (ii), this paragraph has no relevance to the present subject.

      The question hinges on the word "balance". Reading the above together, I understand "balance" to mean "volumetric balance" without any hierarchical connotations.

      "So these losses must be accounted under MR water use (60 tmc) entitlement as it has first right on water use from the reservoir and AP is left to use balance of water only".

      Coming to the GWDT award, the "award" is primarily a sum total of mutual agreements. No tribunal (or court for that matter) has any right of modifying legally binding agreements between eligible parties. The various clauses are also a summary of agreements reached by the parties during the deliberations. It may be noted evaporation is accepted to be a part of utilization by all hydrologists.

      The agreement confers limited usufruct rights to Maharashtra while AP has total unrestricted rights on the "balance" waters. Because utilization includes evaporation, Maharashtra's 60 TMC includes evaporation.

      How to determine Maharashtra's evaporation losses from Pochampad? The contention that Maharashtra has *first use* rights does not look correct as discussed. This does not support the 15 TMC claim.

      Let us apply another test. Both the states retain full territorial rights. Maharashtra's usufruct rights relate to water from its territorial.

      I therefore lean to the following interpretation:

      - Maharashtra's evaporation losses can be computed in the proportion of water diverted from that part of the Pochampad reservoir in its territory
      - Evap-m= Diversion-m/ (Diversion-m+ Diversion-ap) X Evap-Pochampad-Mah
      Continued further due to comment length restrictions

    8. Continuing from the previous:

      Let me try to visualize a future law suit:

      Maharashtra will probably counter that its incursion into the reservoir is 0.6 TMC only. As per decree 83 (b) this is only in Rabi. Even this being reimbursed on March 1 every year as per decree 83 (e).

      They will also bring in arguments that the reservoir within Maharashtra territory is small and that post-monsoon flows are negligible. They will play up the fact that 0.6 TMC is miniscule compared to the live storage 112. They will thus plead they are not liable for any evaporation losses in the reservoir.

      This argument looks appealing. Together with the "volumetric balance" approach, this does not leave many options for AP (or Telangana). The best counter I can think of is to plead on the following grounds:

      - 60 TMC is for "new" projects only
      - Current utilization as determined by the honorable supreme court is 63.018 TMC
      - As per 81 (ii) this has been capped at 60 TMC

      Based on this, they could pray for the following:

      - An injunction against new projects in the defined area
      - Failing the above, an order that CWC should not approve anymore new projects in the defined area
      - The 60 TMC cap should be monitored by the supervisory committee set up by decree 83

      These pleas will definitely be considered but I am unable to guess the outcome right now.

    9. I apologize for mistakenly confusing you with Mr. Ramachandra.

      I will appreciate if you can post under your own name or an alias, thanks.

    10. Let us understand the acute water shortage problem faced by Pochampadu irrigation system by the overuse of the available water in the said catchment area (below the three dams up to Pochampadu dam). It is a moderately good rainfall area (40,000 square km) of the order of 75 cm in an average rainfall year. Nearly 350 tmc river water is generated in the said catchment area in an average rainfall year. Last thirteen years, the reservoir (present gross capacity 90 tmc) is not getting full for 7 out of 10 years whereas the identified water supply to the irrigation is nearly 170 tmc from the Pochampadu reservoir. There should not be deficit (less than 170 tmc) water availability in Pochampadu reservoir in 9 out of ten years provided MR is not using water in excess of 60 tmc for new projects in addition to old uses when water supply and losses are accounted as per clauses III a, b, c & d of final order of Godavari water disputes tribunal award (GWDT). The final order of GWDT is equally valid and applicable similar to any agreement annexed to GWDT final order.
      The issue of Babhali barrage is settled by SC by permitting its useful existence like any other working barrage. At the same time SC has understood the actual problem of AP in not receiving the deserving water from the MR area. Since MR has constructed many major, medium, minor dams / barrages to use many times more water than its permitted water rights, SC has categorically stated that the natural flow of the river flow during monsoon months shall not be obstructed below the three dams towards Pochampadu reservoir. In this situation also MR can utilize 60 tmc for new uses plus old uses as the manmade reservoirs & others works developed would be adequate to enjoy its water use rights. By chance MR is unable to use its water entitlements fully in a severe drought year out of a decade, it has right to use water from Pochampadu reservoir. The job of the established monitoring committee under the direction of SC is exactly to solve this issue by establishing the actual water uses by MR to alleviate the frequent water shortages faced by Pochampadu irrigation system which is older than many irrigation projects in MR’s said catchment area.

    11. GWDT is nothing but the sum of various agreements. Each party's rights & restrictions are derived *only* from the agreement.

      The water problems (of both parties) and other equities are not relevant as the tribunal did not use the "equitable apportionment" approach to decide water share. Rather the parties themselves entered into negotiated settlements. Each state is expected to have considered its own problems & requirements before signing.

      I do not find any indication in the judgment that the supreme court considered anything other than the agreement.

      "The final order of GWDT is equally valid and applicable similar to any agreement annexed to GWDT final order"

      Agreed. Please note all these points were included *only* after all parties agreed.

      "The job of the established monitoring committee under the direction of SC is exactly to solve this issue"

      No. The committee has six functions only.

      "Pochampadu irrigation system which is older than many irrigation projects"

      Prior appropriation is not valid in India. Even in the US states where it applies, it is limited to intra-state waters only.

      The bottomline is that Maharashtra can't exceed pre-1975 sanction plus 60 TMC in the defined area in any year. AP gets all the other water. This is on absolute terms, not x% dependability.

    12. There is no difference in our views. I never stated that water use should be on x% between the both states. As you stated the monitoring committee has six functions to ensure in the water utilization, one of the functions to be ensured is
      “there is no obstruction to the natural flow of Godavari river during monsoon season below the three dams mentioned in Clause II (i) of the agreement dated 06.10.1975 towards Pochampad dam.”
      For detailed information on what is water use as stated in the final order of GWDT, the information given in the link here ( http://en.wikipedia.org/wiki/Godavari_Water_Disputes_Tribunal ) gives more clarity.
      Let us stop further discussion on this topic and may start new discussion on the acute water shortage problem faced by Nizamsagar project:-
      Nizamsagar dam was constructed in the year 1931 across Manjra river. This dam is located in Nizamabad district of Andhra Pradesh (AP). It is planned to irrigate 2,75,000 acres utilizing 58 tmc water of Manjra river. The Manjra river catchment area located upstream of Nizamsagar dam is nearly 21,000 square kilometers spreading in Maharashtra, Karnataka & AP with average annual rainfall of nearly 90 cm. Over the long period of time, the dam lost its storage capacity by siltation and present capacity is 18 tmc only. To overcome the shortfall in the required water storage for Nizamsagar project, another dam called Singur dam is constructed across Manjira river in the upstream of Nizamsagar dam with 30 tmc storage capacity. This dam is located in Medak district of AP. Singur dam also partly supplies drinking water to the nearby Hyderabad city.
      As per the agreement dated 4/8/1978 (which is part of Godavari water disputes tribunal) between Karnataka and AP, AP was permitted to construct the Singur reservoir with FRL at 523.6 m above mean sea level with a maximum storage capacity of 30 tmc. Karnataka permitted the submergence of its river bed / stream beds. Andhra Pradesh was to pay compensation at the prevailing norms for the lands submerged in Karnataka and bear the cost of roads and bridges construction that may become necessary.
      Accordingly, AP constructed the Singur reservoir mainly to ensure the allocated 58 tmc to the Nizamsagar irrigation project and 4 tmc drinking water supplies to Hyderabad city. As per the agreement dated 6/10/1975, Maharashtra can utilize 22 tmc for new projects and new uses. As per the agreement dated 17/9/1975 between Karnataka and AP, Karnataka is permitted to construct Karanja Project (13.1 tmc) and Chulkinala Project (1.17 tmc). Agreement dated 4/8/1978 also permitted Karnataka to utilize additionally one (1) tmc water from Manjra river. Karnataka would create pondage as may be required and as may be agreed to between Andhra Pradesh and Karnataka to use the permitted 1 tmc.

      (contd in next post)

    13. (contd from previous post)

      From the above agreements, Karnataka should not use more than 15.27 tmc for new projects /uses and Maharashtra not more than 22 tmc for new projects /uses. Karnataka shall not construct pondage to utilize not more than 1 tmc water other than Karanja and Chukinala reservoirs. The average yield in the river is nearly 250 tmc which is well above the permitted water uses under the existing and sanctioned projects (including 58 tmc under Nizamsagar project) before the year 1976 and 41.27 tmc for new projects. The total usage under the existing and sanctioned projects before 1976 is not exceeding 100 tmc including Nizamsagar project. So there should be yearly average surplus of nearly 108 tmc overflowing Nizamsagar dam but Nizamsagar (18 tmc gross storage) and Singur reservoirs (30 tmc gross storage) are not getting filled up seven out of 10 years in recent decades. The water availability for Nizamsagar irrigation project which is more than 80 years old has drastically reduced to less than 50% (29 tmc) on average causing frequent sufferings to the farmers of one of the oldest irrigation project.
      Maharashtra has constructed nearly 30 barrages and many medium / minor irrigation projects in Manjra catchment area violating the agreements with AP and thus utilizing well in excess of permitted 22 tmc water for new projects/uses. Similarly Karnataka also constructed nearly 7 barrages and many medium / minor irrigation projects in Manjra catchment area violating the agreements with AP and thus utilizing well in excess of permitted 15.27 tmc water for new projects/uses. These two states are using more than 50 tmc water on average above the permitted uses drastically curtailing the water availability in AP.
      Karnataka is not permitted to create pondage more than the requirement of 1 tmc water use but it has built nearly seven (7) barrages on the Manjra river and one barrage is located in the submergence area of the Singur reservoir which is located near Janwada town (Google earth coordinate 18° 01’ 21” N & 77° 28’ 53” E). This incident is similar to Babhali barrage construction in Pochampad reservoir backwaters.
      This year (2013) despite being very good monsoon year (25% excess rainfall above average), Nizamsagar and Singur reservoirs have not filled up fully with actual inflows less than 45 tmc against the requirement of 58 tmc. Being the oldest major irrigation project in Manjra river basin, the case of Nizamsagar irrigation project for not receiving the allocated water in most of the years is legally much stronger than Pochampad irrigation project.
      Can AP government ask GoI for a ‘Monitoring committee’ to ensure MR and Karnataka not to overuse in excess of their water rights?
      What should be action of GoI ? or
      Can AP directly approach SC bypassing GoI?

  8. @JPGL:

    As this is a new question, I am responding in a new comment.

    GoI has no role as it is not a party to the agreements. If Maharashtra/Karnataka is withdrawing excess water, it is best to approach the supreme court if discussions with the other state don't work out.

    The assessments of "legally much stronger" & "the oldest major irrigation project": are not relevant because equities have been determined by agreements. In any case, prior appropriation does not apply in our context. This is probably not a problem as one of the reliefs you prefer is available.


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