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Monday, July 22, 2013

Allotment of Water to Kutuch District fro Sardar Sarovar =Aggrieved by the meager allocation of water from Sardar Sarovar Project to the District of Kutch they approached the Gujarat High Court in a public interest litigation inter alia praying for issuance of a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent, the State of Gujarat and its functionaries to allocate more water from Sardar Sarovar Project to the District of Kutch. By the impugned order the prayer made by the appellants has been rejected and against the dismissal of the writ petition they are before us with the leave of the Court.= “We are of the opinion that the prayer for allocation of adequate water in Kuchchh district is not one which can be a matter of judicial review. It is for the executive authorities to look into this matter= The complaint of the appellants of non-adherence to the mandate of Article 38(2) of the Constitution is also misconceived. The State, in our opinion, is to strive to minimize the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities not only amongst individuals but also amongst group of people residing in different parts or engaged in different vocations. But this does not mean that for achieving that the State Government has to apply it on the basis of the number of people residing in different parts only. Other factors just cannot be forgotten. We are in total agreement with the conclusion and reasoning given by the High Court and we reiterate that there being no judicially manageable standards for allocation of water, any interference by this Court would mean interference with the day-to-day functioning of the State Government. In view of separation of powers, this Court cannot charter the said path. In the result, we do not find any merit in this appeal which is dismissed accordingly but without any order as to costs.

                  published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40555             
                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2957 OF 2013


KACHCHH JAL SANKAT NIVARAN SAMITI & ORS.     ..APPELLANTS

                                   VERSUS

STATE OF GUJARAT & ANR.                          …RESPONDENTS



                                  JUDGMENT



CHANDRAMAULI KR. PRASAD,J.


      Appellant no. 1, Kachchh Jal Sankat Nivaran Samiti, claims to be
a non-
political organization established with the object amongst  others  to  work
to alleviate the District of Kutch of its perennial water  scarcity  and  to
mitigate the resultant problems faced by the inhabitants and the  residents.
 Other appellants have also interest in the cause espoused by appellant  no.
1.  Aggrieved by the meager allocation of water from Sardar Sarovar  Project
to the District of Kutch they approached the Gujarat High Court in a  public
interest litigation inter alia praying for issuance of a writ in the  nature
of mandamus or any other appropriate writ, order or direction directing  the
respondent, the State of Gujarat and  its  functionaries  to  allocate  more
water from Sardar  Sarovar  Project  to  the  District  of  Kutch.   By  the
impugned order the prayer made by  the  appellants  has  been  rejected  and
against the dismissal of the writ petition  they  are  before  us  with  the
leave of the Court.

      Water is essential for survival of universe.  It is not available  for
human use in plenty and hence disputes existed between  various  States  for
its sharing.
In the year 1969, the Government of India in exercise  of  its
power  under  Section  4  of  the  Inter-State  Water  Disputes  Act,   1956
constituted Narmada Water Disputes  Tribunal  (hereinafter  referred  to  as
“the Tribunal”), to decide the Inter-State dispute of sharing  of  water  of
river Narmada.  
The Tribunal handed over its award on 16th of August,  1978.
 As provided under Section 5(3)  of  the  Inter-State  Water  Disputes  Act,
(hereinafter referred to as “the Act”), the Union of India  and  the  States
of Gujarat, Madhya  Pradesh,  Maharashtra  and  Rajasthan  made  references.
Those references were heard by the Tribunal which gave its  final  award  on
7th of December, 1979.
It was published on 12th of December,  1979  in  the
Extraordinary Gazette of the Government of India.
While giving  the  award,
the Tribunal considered the issue pertaining to allocation of water,  height
of the dam, hydrology and other related issues.
As  regards  the  issue  of
allocation of Narmada  water  at  Sardar  Sarovar  Dam  site,  the  Tribunal
allocated 9.00 Million Acre Feet (for short “MAF”) to the State  of  Gujarat
whereas 18.25 MAF, 0.50 MAF and 0.25 MAF were allocated  to  the  States  of
Madhya Pradesh, Rajasthan and  Maharashtra  respectively.  
It  is  relevant
here to state that the State of Gujarat laid claim for 20.73  MAF  of  water
out of the total demand of 22.02 MAF of water  before  the  Tribunal,  which
included 6.57 MAF water for reclaiming and/or irrigating  12.17  lakh  acres
of land of  the  District  of  Kutch  under  Zone  XI-C,  Banni  and  Ranns.
However, the claim of the State of Gujarat was turned down by  the  Tribunal on its finding that these areas are  barren  and  sparsely  populated.  Its soil  is  highly  saline  having  very   low   permeability   and   vertical permeability of nearly nil.  
It has high ground water table  and  impervious
layer near the ground water surface, high evaporation and low rainfall.  
 In this way the Tribunal rejected the claim of State of Gujarat for  irrigating 11 lakh acres of land in Banni and Ranns  areas  and  as  stated,  allocated 9.00 MAF of water.  
How the water allocated to each of the States  shall  be
utilised was left to the choice of the State Government.  As it  was  not  a case of plenty, 
the State Government of  Gujarat  out  of  9.00  MAF  water,
allocated 7.94 MAF water for irrigation and 1.06 MAF water for domestic  and industrial  use  and  because  of  the   limited   water   allocation,   the proportionate water requirement for Kutch region  was  worked  out  as  0.15 MAF.

      The appellants are aggrieved by aforesaid meager allocation  of  water
and, according to them, the State Government has not distributed  the  water
keeping in mind the Directive Principles of the State  Policy  as  enshrined
under Article 39(b) of the Constitution of India which  inter  alia  obliges
the State to make the policy in such a way that the  material  resources  of
the community are so distributed  as  best  to  subserve  the  common  good.
Appellant further contended that by meager allocation of  water,  the  State
Government also did not carry out its obligation as mandated
under  Article
38(2) of the Constitution which casts a duty on it  to  strive  to  minimise the inequalities in income and make an endeavour to  eliminate  inequalities in the status, facilities and opportunity amongst individuals and groups  of people residing in different areas of the State.   
The  plea  of  the  State
Government is that  out  of  the  limited  water  allocated  to  it  by  the
Tribunal, it had made the best use of that.  It has also  been  pointed  out
that the allocation complained of is not static and shall vary from time  to
time and the quantity of water allocated for Kutch  District  may  increase.
It has also been averred that while making  allocation  to  Kutch  District,
the State Government has kept in view the  interest  of  all  concerned  and
also the factors relevant for the purpose.  
According  to  the  respondent-
State Government, it laid a claim for 20.73 MAF of water out  of  the  total demand of 22.02 MAF water before the Tribunal which included  6.57  MAF  for Kutch, but only 9.00 MAF water was allocated and the award of  the  Tribunal having been approved by the Supreme  Court,  the  State  Government  has  to
distribute the limited water allocated to it.  It has also been pointed  out that the allocation made for the District of Kutch  has  been  increased  in later years.


      The High Court has analysed in detail the pleas raised by the  parties
and declined to interfere with the same, inter alia,  on  the  grounds  that
the decision involved balance of competing claims of the  natural  resources
and  there  is  no  judicially  manageable  standard  for  adjudication  for
allocation of water in favour of any region within the State.   While  doing
so, the High Court observed as follows:


           “In  our  opinion,  the  above  observations  would  answer  the
           submissions advanced by the learned counsel of the  petitioners.
           We are not here to weigh the pros and  cons  of  the  policy  or
           scrutinize it and test the degree of its beneficial or equitable
           disposition for the purpose of varying, modifying  or  annulling
           it, unless it is arbitrary or violative of  any  constitutional,
           statutory or any other provision of law.  
Needless to  say  that
           the petitioners have  not  challenged  these  decisions  on  the
           ground that as they are arbitrary nor have they pointed out that
           they are unconstitutional or violative of statutory or any other
           provisions of law.  
The Government, in the instant case, decided
           to accept the award of the NWDT which is  based  on  the  expert
           opinion and now we are asked to  test  the  utility,  beneficial
           effect etc. of the policy on the basis of  the  affidavit  filed
           before us……”




      The High  Court  further  observed  that  the  issue  raised  requires
determination of the choice of priorities and it is not subject to  judicial
review.  The High Court, in this connection, observed as follows:


              “29. Apart from that, determining the  choice  of  priorities
              and formulating perspective thereof is a matter of policy and
              it is not within  our  domain  to  interfere  with  the  sole
              question of efficacy or otherwise of such policy  unless  the
              same is “vitiated” of in violation of any provisions  or  the
              statute or Constitution of India.”






      Mr. Altaf Ahmed, Senior Counsel appears on behalf  of  the  appellants
and takes  a  stand  that  the  appellants  do  not  seek  determination  of
appropriate quantity of water for the District of  Kutch  but  the  plea  is
that the policy of distribution is based on  irrelevant  consideration  and,
therefore,  subject  to  judicial  review.   According  to  him,  it   lacks
transparency and  exhibits  extreme  prejudice  and  discrimination  against
Kutch District.  According to him, while making  the  policy,  the  relevant
factors were ignored and irrelevant and extraneous factors have  been  taken
into account.  He points out that the State of Gujarat while claiming  large
share of water from river Narmada before the Tribunal  relied  heavily  upon
the need of Kutch District to get more water but after the  award,  did  not
stick to its stand after the allocation was made by the  Tribunal.   He  has
brought to our notice the comparative data regarding allocation of water  to
the various districts and points out that the same indicates  discriminatory
allocation of water to the Kutch area.  Mr. Ahmed  draws  our  attention  to
Article 39(b) of the Constitution of India and submits that the State  while
dealing with the distribution of water did not  respect  the  constitutional
philosophy that the State shall distribute the material  resources  as  best
to subserve “common good”.
 It has also  been  contended  that  the  natural
resources are held by the Government as  trustee  for  the  benefit  of  the
citizens and, therefore, the State Government  is  required  to  manage  and
utilize  them  in  the  best  interest  of  the   society.    While   making
distribution, according to Mr. Ahmed,  the  State  Government  totally  lost
sight of Article 38(2) of the Constitution which stipulates that  the  State
shall endeavor to minimize inequalities in the facilities and  opportunities
amongst people.


      On account of all these infirmities, the impugned policy  deserves  to
be looked into by this Court in exercise of its power  of  judicial  review,
contends Mr.Ahmed. Reliance has been placed  in  support  of  aforementioned
contention to a decision of this Court in the  case  of  Tata  Cellular  vs.
Union of India (1994)6  SCC  651.  Our  attention  has  been  drawn  to  the
following passage from the     said judgment:




              “70. It cannot be denied  that  the  principles  of  judicial
              review would apply to the exercise of contractual  powers  by
              Government  bodies  in  order  to  prevent  arbitrariness  or
              favouritism.  However, it must be clearly stated  that  there
              are  inherent  limitations  in  exercise  of  that  power  of
              judicial review.  Government is the guardian of the  finances
              of the State.   It  is  expected  to  protect  the  financial
              interest of the State.  The right to refuse the lowest or any
              other tender is always available to the Government.  But, the
              principles laid down in Article 14 of the  Constitution  have
              to be kept in view while  accepting  or  refusing  a  tender.
              There can be no question of infringement of Article 14 if the
              Government  tries  to  get  the  best  person  or  the   best
              quotation.  The right to choose cannot be considered to be an
              arbitrary power.  Of course, if the said power  is  exercised
              for any collateral purpose the exercise of that power will be
              struck down”






        Mr. Shyam Diwan, Senior Counsel representing the State  of  Gujarat
states that the issue regarding allocation of  water  to  the  districts  of
Gujarat is a matter of policy and the  scope  of  judicial  review  in  this
regard is narrow.  According to  him,  the  policy  has  been  framed  after
consulting technical experts  in  the  best  interest  of  the  people  and,
therefore, does not call for any interference by this Court in  exercise  of
its power of judicial review.


        We  have  given  our  most  anxious  consideration  to  the   rival
submissions and we find substance in the submission of  Mr.  Diwan.  We  are
conscious of the fact that there is wide separation of  powers  between  the
different limbs of the State and, therefore, it is expected  of  this  Court
to exercise judicial restraint  and  not  encroach  upon  the  executive  or
legislative domain. What the appellants in substance are asking  this  Court
to do is to conduct  a  comparative  study  and  hold  that  the  policy  of
distribution of water is bad.  We are afraid, we do not have  the  expertise
or wisdom to analyse the same. It entails  intricate  economic  choices  and
though this Court tends to believe that it is expert  of  experts  but  this
principle has inherent limitation. True it is that the court is entitled  to
analyse the legal validity of the different means  of  distribution  but  it
cannot and will not term a particular policy as fairer than the other.    We
are of the opinion that the  matters  affecting  the  policy  and  requiring
technical expertise be  better  left  to  the  decision  of  those  who  are
entrusted and qualified to address the same.  This Court shall step in  only
when it finds that the policy is inconsistent with the  Constitutional  laws
or arbitrary or irrational.


        Candidly speaking, we do not have the expertise to lay down  policy
for distribution of water  within  the  State.  It  involves  collection  of
various data which is variable and many a times policy formulated will  have
political overtones. It may require a  political  decision  with  which  the
Court has no concern so long it is within the  Constitutional  limits.  Even
if we assume that this Court has the expertise, it will  not  encroach  upon
the field earmarked for the executive. If the policy of the  Government,  in
the opinion of the sovereign, is unreasonable, the remedy is  to  disapprove
the same during election. In respect of policy, the Court has  very  limited
jurisdiction. A dispute, in  our  opinion,  shall  not  be  appropriate  for
adjudication  by  this  Court  when  it  involves  multiple   variable   and
interlocking factors, decision on each  of  which  has  bearing  on  others.
While disposing of an interlocutory  application  in  this  very  appeal  by
order dated 22nd of July, 2011, this Court observed as follows:


              “We are of the opinion that  the  prayer  for  allocation  of
              adequate water in Kuchchh district is not one which can be  a
              matter  of  judicial  review.   It  is  for   the   executive
              authorities to look into this matter.
As held by this  Court
              in Divisional Manager, Aravali Golf Club & Anr.  vs.  Chander
              Hass &  Anr.  (2008)  1  SCC  683,  there  must  be  judicial
              restraint in such matters.”






       We are in respectful agreement with the view aforesaid.


       The State of Gujarat emphasized the  need  of  more  water  for  the
 District of Kutch before the Tribunal and projected all those pleas  which
 have been projected before us by the appellants but the same did not  find
 favour with the Tribunal and the Tribunal allocated 9.00 MAF water instead
 of 22.02 MAF water claimed before the Tribunal.  Therefore, they were left
 with little amount of water. In the face of it, less amount of water  than
 what has been claimed by the appellants was allocated for the District  of
 Kutch.  The allocation of water is a matter of policy and how  much  water
 is to be released from the canal and for that matter a particular area  or
 how much water is to be left with  other  regions,  in  our  opinion,  are
 matters which require delicate  balancing  and  consideration  of  complex
 social and economic consideration.  In our view, there being no judicially
 manageable standards, it shall be appropriate to leave it to be decided by
 the experts of  the  irrigation  management  system  and  water  resources
 management.






       The plea of the appellants that those factors which  were  projected
 by the State Government itself before the Tribunal are not  being  adhered
 to and its action  is  arbitrary,  does  not  appeal  to  us.  
The  State
 Government also projected the need of Kutch area before the  Tribunal  but
 the same did not appeal to it.
In fact, the award of the Tribunal has got
 the seal of approval  of  this  Court  and  the  State  Government  having
 accepted the decision of the Tribunal, its  action  cannot  be  termed  as
 arbitrary only on the ground that all those factors  were  not  considered
 while making allocation to the district.
As regards the complaint of  the
 appellants that while making distribution, the State  Government  did  not
 take into account the policy underlying Article 39(b) of the Constitution,
 we must observe that the distribution  of  material  resources  is  to  be
 effected in the manner to subserve the “common good” and  this  expression
 is not to be confined for the Kutch District only but to the other regions
 of the State also.


      The complaint of the appellants of non-adherence  to  the  mandate  of
Article 38(2) of the Constitution is also misconceived. The  State,  in  our
opinion, is to strive to minimize the inequalities in income  and  endeavour
to eliminate inequalities in status, facilities and opportunities  not  only
amongst individuals but also amongst group of people residing  in  different
parts or engaged in different vocations. But this does  not  mean  that  for
achieving that the State Government has to apply it  on  the  basis  of  the
number of people residing  in  different  parts  only.  Other  factors  just
cannot be forgotten.




      We are in total agreement with the conclusion and reasoning  given  by
the High Court and we reiterate that there being  no  judicially  manageable
standards for allocation of water, any  interference  by  this  Court  would
mean interference with the day-to-day functioning of the  State  Government.
In view of separation of powers, this Court cannot charter the said path.


        In the result, we do not find any merit  in  this  appeal  which  is
dismissed accordingly but without any order as to costs.


                                  ………………………………………………………………J
                                                             (CHANDRAMAULI
                                  KR. PRASAD)






                                                    ………..……….………………………………..J
                                       (V.GOPALA GOWDA)


NEW DELHI,
JULY 15, 2013.

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