Monday, 7 February 2022

State of karnataka V. state of AP & ors.

 CASE ANALYSIS: STATE OF KARNATAKA V. STATE OF AP & ORS.

By: Bishrant Khatiwada, Sls,Pune, bishrantkhatiwada0@gmail.com

FACTS OF THE CASE

  1. There has been a dispute over Tungabhadra and Krishna river water since British rule. In 1944, there was an agreement between the states with regards to Tungabhadra. The dispute between Krishna arose between the state of Bombay, Andhra Pradesh and Bombay. 

  2. The CG in 1963 allotted 400 TMC to Bombay, 800Tmc to AP and 600TMC to Karnataka. The states did not agree with the allocation and the matter was sent to the tribunal. The CG tried to resolve the dispute until 1969, but was unsuccessful.

  3. They constituted the KWDT under section 4 of the Interstate dispute Act of 1956 and was enacted under article 262 of the Indian Constitution. In 1973, KWDT heard all the parties and examined the evidence and released a final Order in 1976 to which a review was to be conducted in 2000A.D. The order had two schemes.(let’s assume it as X&Y)

  1. Scheme X declared that the dependability of Krishna as 75% after analyzing it and allocated 560TMC to Maharashtra, 700TMC to Karnataka and 800TMC to AP as the maximum amount. Further it also stated that in case of surplus, it will be allocated to AP.

  2. Scheme Y was introduced for the proper implementation of the order and suggested that the KWA should be established on the consent of all parties to which AP didn’t agreed and was left for the parliament. Hence Scheme Y was not made a part of the final order.

  3. The state of AP hadn’t acquired any right for using surplus water, but was permitted to store water in various dams.

  4. In 1973, all three states raised an issue for the allocation of surplus water on basis of percentage for which scheme Y was evolved, but AP objected to it.

  1. Due to the objection raised by AP, Karnataka cannot start a certain Project in Upper Krishna (Stage I & II). After objection from AP, the ministry of power replied that the clearance for construction is an administrative action for developmental activities and not a techno economic clearance. After which it became clear that the State of Karnataka was not willing to find the solution of the issue/dispute raised and therefore approached court under article 131 of the constitution; the state of Karnataka and the state of AP filed cases in Supreme Court against each other in 1997 with the State of Maharashtra, the Union of India and Ministry of power as joint defendant.

  2. The court joined two Petitions :

  1. State of Karnataka V State of Andhra Pradesh & Anr

  2. State of Andhra Pradesh V State of Karnataka & Anr

ISSUE OF THE CASE:

  1. Can the Supreme Court Exercise its jurisdiction on interpretation and implementation on the order of the tribunal even though it is barred under Article 262of the Indian constitution?

  2. Can the State of Karnataka start with its Upper Krishna project by raising the height of Almatti dam knowing the consequences to the state of AP?

RULE OF LAW:

Article 262 of Constitution deals with the adjudication of disputes relating to water of interstate rivers or river valleys and states that, the parliament can make any laws related to any dispute concerned with the use, distribution and control of water of any interstate disoure between the states.


adjudication of disputes relating to water of interstate rivers or river valleys and states that, “the parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the water of any inter-state dispute on river or river valley”.

Although the constitution does not have many provisions with respect to water disputes, it does however provide the parliament with the power to make laws on this subject.

Article 131, of the Indian Constitution lays down provision for the Supreme Court to have original jurisdiction in any dispute between the states (one or more) and Government of India.


Contentions of Karnataka

The tribunal while allocating water had taken under consideration various projects related to river which have been undertaken by the states. The tribunal while preventing Maharashtra from excess use of water than which was allocated, granted freedom to AP to use the remaining water. But there was a condition that AP cannot use more water than what was allocated to AP in any condition. The plaintiff also claimed that while allocating water to the 3states, No any provision was mentioned for sharing of any deficiency. To save AP from such difficulty, the tribunal allowed AP to store water in various dams. 

It is clear that the Union Government and CG are held responsible for accepting/allowing any inter-state projects. And it was found that it the state of Karnataka was allowed to raise the height of Dam to 524M, then it will result in AP going dry for 3months which will cause loss of entire crops and harm to livelihood of people.

Relief sought by AP:

AP filed a suit under article 131 of the Constitution, the relief sought by them were:

  1. To declare that the decision made by KWDT on 1997 to be binding upon all parties

  2. To declare that the parties aren’t allowed to utilize more water than allocated

  3. To declare that before sanctioning any projects which are water related, UOI is to consult all 3states.

  4. The main relief sought by AP was mainly that Karnataka to not be allowed to raise the height of Almatti Dam to a height of 524.25M.


ANALYSIS & APPLICATION OF LAW:

  1. Analyzing the first issue raised wherein the issue was whether such a suit is barred by section 11 of the interstate water dispute act, 1956 which has been barred from jurisdiction of the Supreme Court and other court. It states that, unless there is something more to it other than dispute over water between the states, the Supreme Court cannot exercise its jurisdiction over such issues. Whereas article 262(2) of Indian constitution of India state that, unless there is something more to it other than dispute over water between the states, the Supreme Court cannot exercise its jurisdiction over such issues but the Parliament can make laws related to the water issue/disputes between the states . 

  2. The Act has provided provision by granting law making power to the parliament and has barred the Supreme Court. Since Scheme Y wasn’t a decision of the tribunal as it wasn’t a part of the final order, taking this into account this itself won’t get the suit bared as per Section 11 of the Interstate water dispute act

  3. The concern of the plaintiff is that the decision of the tribunal and executive action of the concerned states violates the decision of the tribunal which raises the issue pertaining to the performance and implementation of an issue which has already been solved. Analyzing which we can see it clearly that the Article 262 of the Indian constitution can be taken out of the case now as the grievance of the plaintiff is the implementation of law between the states. 

  4. After the analysis in point.4, we can see that it becomes obvious that Article 262 of the Indian Constitution will not be applicable here hence only Article 131 of the Indian Constitution will remain applicable against the defendant for the issue at hand during the stage.

  5. For another issue raised in the case related with increasing the height of the Almatti dam. As per water allocated on the basis of 75% dependable water, each year by Scheme X, raising the height of the dam to 524M will not be feasible as doing so will make it hard for AP for 3months and will cause loss to crops and thelivelihood of people. As we have learnt that while exercising one’s right and freedom, we cannot hamper others right and freedom. 

  6. The Court while seeing and applying wide scope of Article 131 of the Indian Constitution in the case of the State of Rajasthan V Union of India [1978] 1 SCR 1, the necessity is that the Issue at hand must include a question, whether of law or circumstances of the case, on which the presence or degree of a lawful right depends. It is this qualification that decides a true guide for deciding whether a specific issue at hand can be included and applied within Article 131 of the Indian Constitution.

  7. Following the observation of court in point no.6, we can see from the facts above and relief sought in the case, it is mainly for the proper implementation of report from KWDT and for the consequences which will arise due to increasing the height of Alamatti Dam. Article 131 of the Indian Constitution is a provision of the constitution which has provided jurisdiction to the SC to decide certain matters depending on the dispute and issues between the states and Union Government and Central Government 

  8. Whereas in the case of the Delhi Judicial Services V state of Gujrat AIR (1991) SC 2150., where it was found by the deciding judge that, No enactment made by Central or State the legislature can limit or restrict the power' of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into consideration the statutory provisions Regulating the matter in dispute. The term complete justice in cause and matter depends on various facts and circumstances while interpreting the law and applying its jurisdiction the court should consider the expressing provision of the statute before going ahead with the same.



RATIO AND CONCLUSION 

Both the suits of AP and Karnataka was dismissed by the Supreme Court. While dismissing both the cases a ratio was passed, "Dispute must be one involving question "on which existence or extent of a legal right depends. In this case the major dispute can be seen as violation of other’s right while exercising own right. It was held that as the state of AP refused to acknowledge and follow orders of Scheme Y and thence making scheme Y un-implementable gave cause of action to file suit on basis of which suit had been filed thus the appeal was allowed. In general for such developmental socio-economic activities like raising the height of the Almatti dam. The state of Karnataka will have to take permission of the Central Government to move ahead with the project else they cannot go ahead with the project.

As for the issue of raising the height of the Almatti dam, both Maharashtra and AP were against it. Several areas in Maharashtra and AP would suffer because of this as farmers rely on the water of the Krishna River which would affect their livelihood. The Dam is used to store water and to raise the height would allow more water to be stored, which is against the award of the KWDT and hence would result in Karnataka to use more water than allocated. 

It was held that for the question that mass allocation as per Scheme Y, can the suit be dismissed as being opposing to the decision as per KWDT. The court found that as the tribunal made the implementation of Scheme Y at the option of parties. Which means that unless Maharashtra, AP and Karnataka agree to the orders of Scheme Y it cannot be implemented hence the petition was dismissed for the issue. As for Supreme courts view on sharing of surplus water, the SC said that the surplus water should be used as per decision of KWDT. As while allocating the water, various projects and circumstances were evaluated and taken into account by the central government while exercising its discretion so, all the states were bound to use water as per the water allocated by KWDT and Karnataka can only raise height of Dam after getting clearance from the Central government and the 2 states which will be affected by it. Therefore, The Supreme Court Dismissed the petition without any cost of April 2000AD except for the bar on deciding on the jurisdiction of the SC under article 131 of the Indian Constitution and its extent in interstate water disputed and Article 262 ofthe Constitution of India. The dispute and issue which was raised in this case was resolved on 29October 2013 by the Krishna Water Dispute Tribunal.


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