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REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
ORIGINAL SUIT NO. 1 OF 2006
State of Andhra Pradesh …… Plaintiff
Vs.
State of Maharashtra & Ors. …… Defendants
WITH
WRIT PETITION [C] NO. 134 OF 2006
WRIT PETITION [C] NO. 210 OF 2007
WRIT PETITION [C] NO. 207 OF 2007
AND
CONTEMPT PETITION [C] NO. 142 OF 2009
IN
ORIGINAL SUIT NO. 1 OF 2006
JUDGMENT
R.M. LODHA, J.
Original Suit No. 1 of 2006
Two riparian states – Andhra Pradesh and Maharashtra – of the
inter-state Godavari river are principal parties in the suit filed under Article
131 of the Constitution of India read with Order XXIII Rules 1,2 and 3 of the
Supreme Court Rules, 1966. The suit has been filed by Andhra Pradesh
(Plaintiff) complaining violations by Maharashtra (1st Defendant) of the
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agreements dated 06.10.1975 and 19.12.1975 which were endorsed in the
report dated 27.11.1979 containing decision and final order (hereafter to be
referred as “award”) and further report dated 07.07.1980 (hereafter to be
referred as “further award) given by the Godavari Water Disputes Tribunal
(for short, ‘Tribunal’). The violations alleged by Andhra Pradesh against
Maharashtra are in respect of construction of Babhali barrage into their
reservoir/water spread area of Pochampad project. The other four riparian
states of the inter-state Godavari river – Karnataka, Madhya Pradesh,
Chhattisgarh and Orissa have been impleaded as 3rd, 4th, 5th and 6th
defendant respectively. Union of India is 2nd defendant in the suit.
2. The Godavari river is the largest river in Peninsular India
and the second largest in the Indian Union. It originates in the
Sahayadri hill ranges at an altitude of 3500 ft. near
Triambakeshwar in Nasik District of Maharashtra and flows for
a total length of about 1465 Km. (910 miles) through
Maharashtra and Andhra Pradesh before joining the Bay of
Bengal. The river has its basin area spread into other States
like Karnataka, Orissa, Chhattisgarh and Madhya Pradesh. In
the high rainfall zone in Sahayadris, the river is joined by
Darna and Kadwa tributaries on its right and left banks
respectively. Downstream at a distance of 217 Km. (135
miles), the combined waters of Pravara and Mula tributaries
join the river. About 45 Km. (28 miles) downstream of Pravara
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confluence, Maharashtra constructed the Paithan Dam
(Jaikwadi Project) to utilize the flows available up to that site.
Further downstream, the river while in Maharashtra, receives
waters of Sindphana, Purna and Dudhna tributaries. At the
border between Maharashtra and Andhra Pradesh, Godavari
receives the combined waters of Manjra (Manjira), Manar and
Lendi rivers. After it enters Andhra Pradesh, at a distance of
764 Km. (475 miles) from its origin, Pochampad dam has been
constructed by Andhra Pradesh.
3. The river basin is divided into 12 sub-basins. The subject
matter of the present suit falls in G-1 and G-5 sub-basins,
details of which are as follows:
G-1 Upper Godavari:—This sub-basin includes the reach of
the river Godavari from its source to its confluence with the
Manjra. The sub-basin excludes the catchment areas of the
Pravara, the Purna and the Manjra but includes that of all
other tributaries which fall into the Godavari in this reach.
G-2 Pravara:— This sub-basin includes the entire
catchment of the Pravara from the source to its confluence
with the Godavari including the catchment areas of the Mula
and other tributaries of the Pravara.
G-3 Purna:—This sub-basin includes the entire catchment
of the Purna and of all its tributaries.
G-4 Manjra:— This sub-basin includes the entire catchment
of the Manjra from its source to its confluence with the
Godavari including the catchment areas of the Tirna, the
Karanja, the Haldi, the Lendi, the Manar and other
tributaries.
G-5 Middle Godavari:— This sub-basin comprises the river
Godavari from its confluence with the Manjra to its
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confluence with the Pranhita. The sub-basin includes the
direct catchment of the Godavari in this reach as well as of
its tributaries, except the Maner and the Pranhita.
4. Rainfall during monsoon months (i.e. June to September) is
the major contribution to the Godavari river flows. Monsoon contributes
about 90% of river flow. Non-monsoon season contributes only about 10%
of the flows which are not well defined and well spread as that of South
West monsoon.
5. On 10.04.1969, the 2nd defendant constituted the Tribunal
under the Inter-State Water Disputes Act, 1956 (for short, “1956 Act”). On
the same day, disputes among the riparian states regarding the inter-state
Godavari river and the river valley thereof were referred to the Tribunal for
adjudication. The Tribunal investigated the matters referred to it and made
its award on 27.11.1979 setting out the facts as found by it and giving its
decision on the matters referred to it. The Tribunal gave further award
under Section 5(3) of the 1956 Act on 07.07.1980. The bilateral and other
inter-state agreements entered into by the riparian states during the period
1975 to 1980 for the distribution of water of Godavari river form the main
features of the award.
6. The case of Andhra Pradesh in the plaint is that construction of
irrigation project to its full potential at Pochampad, which is located close to
the inter-state border of Andhra Pradesh and Maharashtra, involved
submergence of area within Maharashtra. On 06.10.1975, in the course of
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pendency of disputes before the Tribunal, an agreement (which was
endorsed by the Tribunal) was entered into between Andhra Pradesh and
Maharashtra whereby Maharashtra agreed that Andhra Pradesh can go
ahead with Pochampad dam project. Acting on the agreement, Andhra
Pradesh constructed Pochampad dam on Godavari river at a distance of
764 km. (from its origin) near Pochampad village in its Nizamabad district.
The dam is located by 5 km. upstream of Soan Bridge on Hyderabad –
Nagpur Highway. The Pochampad dam is 140 feet high masonry dam,
forming a reservoir with Full Reservoir Level (FRL) + 1091 feet and
Maximum Water Level (MWL)+1093 feet. The storage capacity of the
reservoir at FRL is 112 TMC and it has a water-spread area of about 175
square miles at MWL extending into the territory of Maharashtra. At FRL,
the reservoir water spreads upstream up to 639th km. of the Godavari river
from its origin. A total length of 125 km of the Godavari river bed gets
submerged when the reservoir is at FRL+1091 feet. Out of the submerged
river bed length of 125 km, the river bed to a length of 55 km is located in
the territory of Maharashtra. A length of 16 km of Manjira river bed before
its confluence with river Godavari also gets submerged within its banks.
7. Andhra Pradesh has stated that an expenditure of about
Rs.2,700 crores has been incurred on Pochampad dam project. The total
irrigation potential under the Pochampad project is about 16 lac acres and
a total quantity of 196 TMC is proposed to be utilized under the project to
cater to the needs of the backward districts of Telangana. Andhra Pradesh
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is said to have reimbursed Rs. 551.11 lacs to Maharashtra for construction
of five bridges at Siraskhod, Babhali, Chirli-Digras, Balegaon, Belur across
the Godavari river and two bridges across the Manjira river at Machnur
(Nagani) and Yesgi and the roads to provide proper transportation facilities
connecting villages on either sides of the Godavari and Manjira rivers.
8. The wrongs against which redress is sought are, first,
Maharashtra’s illegal and unauthorised act of construction of Babhali
barrage within the reservoir bridge of Pochampad dam contrary to the
award and without any right and entitlement; and, second, Maharashtra’s
intention to utilize the water of Pochampad by invasion of reservoir water
spread area by construction of Babhali barrage which would deprive
Andhra Pradesh in general and its inhabitants in particular in the districts
of Adilabad, Nizamabad, Karimnagar, Warangal, Nalgonda, Khammam
and Medak of having water for irrigation and drinking purposes and allow
its farmers to utilize water for irrigation by lifting from Babhali pondage.
9. Andhra Pradesh complains that construction of Babhali
barrage will interfere with natural and continuous flow of water by stopping
the freshes into Pochampad reservoir resulting in Pochampad project
getting water only when the Babhali barrage gets filled up and surpluses.
According to Andhra Pradesh, Babhali barrage is being built by
Maharashtra with storage capacity of 2.74 TMC. The necessity to file suit
arose since all the efforts made by Andhra Pradesh in stopping
construction of Babhali barrage by Maharashtra failed and despite
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pendency of a writ petition before this Court in the nature of Public Interest
Litigation, Maharashtra continued with construction of Babhali barrage.
10. Maharashtra has traversed the claim of Andhra Pradesh.
Although diverse preliminary objections have been raised by Maharashtra
in its written statement (which also came to be amended) but these
preliminary objections were not pressed in the course of arguments and,
therefore, we do not think it necessary to refer to the preliminary objections.
Maharashtra has replied that by agreement dated 06.10.1975 between the
two states, which was filed before the Tribunal based on which award
came to be passed, it was agreed that Maharashtra can utilize waters not
exceeding 60 TMC for new projects including any additional use over and
above the sanctioned or cleared utilization on 06.10.1975 from the waters
in the area of the Godavari basin below Paithan dam site on the Godavari,
and below Siddheswar dam site on the Purna, and below Nizamsagar dam
site on the Manjira and up to Pochampad dam site on Godavari.
Maharashtra says that this is an enbloc utilization permitted to it anywhere
in the Godavari basin between Paithan dam site, Siddheswar dam site,
Nizamsagar dam site and Pochampad dam site on the main Godavari river.
There is no restriction on any projects of Maharashtra or where they are to
be located. The only restriction is that Maharashtra cannot utilize more than
60 TMC. There is also no mention or restraint on location of storages in this
stretch of the basin, number of storages and the sizes of such storages
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which Maharashtra can construct to enable it to utilize its share of 60 TMC
for new projects to be sanctioned or cleared after 06.10.1975.
11. Maharashtra asserts that it has not forfeited its right to take its
share of Godavari waters from any portion of its own territory as it deems
fit. The rights over its own land including the submerged portion of its
territory by Pochampad storage continue to vest with it and not Andhra
Pradesh. No lands have been acquired in Maharashtra for Pochampad
storage by Andhra Pradesh. Construction of projects for using its share of
water is its prerogative; the only cap is that the utilization should not
exceed 60 TMC.
12. Maharashtra has denied that the aggregate water utilisation
by it is 63.018 TMC. It has asserted that aggregate planned utilization of
projects sanctioned after 06.10.1975 shall be less than 60 TMC.
13. It is the case of Maharashtra that there is necessity to have
storage reservoirs in the entire Godavari basin to harness the river water
not only in Telangana region but also in Marathwada area of Maharashtra.
According to Maharashtra, Andhra Pradesh can conveniently harness the
admitted available flows by constructing storages and barrages below
Sriramsagar to meet not only the reasonable needs of Telangana region in
the Godavari basin but also in the adjoining Krishna basin.
14. Maharashtra has set out the features of Babhali barrage and
its need. Maharashtra says that Babhali barrage is located on the main
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Godavari river in Nanded district; 7.0 Kms. upstream of Maharashtra –
Andhra Pradesh border. The Pochampad dam on the Godavari river is 81
Kms. downstream of Babhali barrage. Pochampad storage stretches to a
distance of 32 Kms. within Maharashtra territory and its submergence is
contained within river banks in its territory under static conditions.
According to Maharashtra, there is acute water need and no other
alternate resource is available in the vast area and population of Nanded
district on both the banks of Godavari over a stretch of 97 Kms. Lift
irrigation schemes had been constructed by it during 1972 to 1975 for lifting
water from the main Godavari river for drinking water and some Rabi
irrigation. There was no objection by Andhra Pradesh to such schemes
even though the water was extracted from the submergence of the
Pochampad project in Maharashtra. After some time, difficulties were
experienced in getting the needed water supplies in the assured manner
from these lift irrigation schemes. There was acute agitation and pressure
from the local people of 58 villages to provide them with a regulating
scheme to get assured supply of water for irrigation and drinking water
according to their needs. To enable this requirement, it was decided in
1995 to create a small pondage at Babhali to assure and regulate the
needed supplies. As Pochampad dam is 81 Kms. downstream of Babhali
barrage, the level of stored water at Pochampad recedes completely away
from 32 Kms. in Maharashtra territory by about December. The gates of
Babhali barrage are, therefore, proposed to be kept open during monsoon
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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. The
small pondage at Babhali having a capacity of 2.74 TMC for the use during
fair-weather is a negligible fraction of Pochampad storage of 112 TMC out
of which only 0.6 TMC is a common storage. By the middle of December,
Pochampad storage recedes totally away from Maharashtra territory and,
therefore, the pondage at Babhali during operation does not interfere with
the Pochampad storage of the Andhra Pradesh. Babhali storage is a vital
component for Maharashtra to use part of its share of 60 TMC where it is
most needed.
15. Andhra Pradesh filed rejoinder and denied diverse facts and
aspects stated by Maharashtra in its written statement.
16. On the pleadings of the parties, the issues were framed by this
Court on 16.03.2007 which read as follows:
1) Whether the suit is not maintainable in view of the bar
under Article 262 of the Constitution of India read with
Section 11 of the ISWD Act 1956?
2) Whether the Lis in the present suit is a ‘water dispute’
involving merely the interpretation of the agreement dated
6.10.1975?
3) Whether the agreement dated 6.10.1975 has merged
into the award and become an integral part of the Award?
4) Whether there was no adjudication of disputes
between the two states by the GWDT in respect of the
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subject of the agreement dated 6.10.1975, though the said
agreement was considered by the Tribunal and was made
part of the award?
5) Whether the action of State of Maharashtra in
undertaking and proceeding with the construction of Babhali
Barrage on River Godavari within the water spread area of
Pochampad reservoir and to utilize water from the said
reservoir is contrary to the GWDT award?
6) Whether the Godavari Disputes Tribunal award
enables the State of Maharashtra to construct Babhali
Barrage within the water spread area of Pochampad project
or utilize water upto the Pochampad dam site?
7) Is the State of Maharashtra entitled to put up its own
project in the project put up by the plaintiff and draw water at
all from River Godavari through that project?
8) Would the Babhali Barrage project proposed by
Maharashtra enable the said State to draw and utilize 65
TMC of water from the storage of Pochampad project?
9) In any event, whether in view of several disputed
questions of fact and of a technical nature involved in the
suit, the dispute should be referred to a Tribunal constituted
under the Inter State River Water Disputes Act, 1956?
10) To what relief are the parties entitled?
17. Neither Andhra Pradesh nor Maharashtra desired to lead oral
evidence though series of documents were filed by them. On 05.08.2008,
the Court recorded that counsel on either side had agreed that there would
not be any oral evidence in the suit. As both sides had filed series of
documents, the Court on that day observed that the parties may file a list of
documents on which they seek to place reliance and these documents may
be marked in the presence of Registrar (Judicial).
18. Plaintiff initially produced as many as 59 documents. Some of
these documents are: geographical and hydrological feature of Godavari
river, inter-state agreement between Andhra Pradesh and Maharashtra
dated 06.10.1975, inter-state agreement dated 19.12.1975 among the
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Godavari riparian states, copy of Godavari Water Disputes Tribunal Award,
list of projects existing/cleared and contemplated projects showing demand
of 91.80 TMC by Maharashtra below Paithan, below Siddheswar and below
Nizamsagar put forth before Tribunal, clearance of the Pochampad Project
(Sri Ramasagar Project) Stage-I by CWC, clearance of the Pochampad
Project (Sri Ramasagar Project) Stage-II by CWC, summary record of
discussions of the inter-state meeting between the two States held on
11.07.2005 at CWC, minutes of the inter-state meeting between the two
States held on 05.10.2005 at CWC, summary record of discussions of
inter-state meeting between the Chief Ministers of the two States
convened by Minister, Water Resources, Government of India on
04.04.2006, statement showing the details of yearly/monthly reservoir
levels of Pochampad Project for the years 1995-96 to 2006-07, note
regarding Babhali and 10 other Barrages on Godavari river submitted by
Maharashtra during the inter-state meeting held on 11.07.2005 at CWC,
map showing the Godavari basin, annual normal isohtetal map of
Godavari basin furnished by the Director, IMD, Pune dated 23.08.2007
addressed to Chief Engineer, IS & WR, Government of Andhra Pradesh
and the Statement showing details of monthly inflows 1983-84 to 2004-05.
19. On the other hand, Maharashtra initially tendered 23
documents, inter-alia, these documents are : copy of the statements
showing planned use of projects, sub-valley wise before 06.10.1975, copy
of schematic diagram, copy of minutes of meeting dated 21.09.2006
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convened by CWC including letter dated 16.6.2006 from Chief Minister of
Maharashtra to Minister of Water Resources, Government of India, detailed
project report of Babhali Barrage, actual utilization of the projects in
(42+60) TMC area for past 12 years by Maharashtra produced before
CWC on 05.10.2005, materials showing existence of lift irrigation
schemes prior to 06.10.1975, schematic diagram showing additional
storage of Pochampad dam on account of permission granted by
Maharashtra to submergence in its territory [Ex. D-22] and map showing
area demarcating the controlling points as per Clause I of agreement dated
06.10.1975 allowing Maharashtra to use 60 TMC of water.
20. Both parties filed few documents thereafter. In the affidavits
filed by Andhra Pradesh and Maharashtra in respect of the admission and
denial of documents some documents tendered by either side have been
admitted and some denied.
21. Learned senior counsel for the parties agreed that issue nos.
5,6,7 and 8 are crucial issues and the fate of suit is dependant upon
decision on these issues. It is appropriate that the four issues are taken up
together for consideration as these issues are inter-connected.
Issue nos. 5, 6, 7 and 8
22. The vital question for consideration is Maharashtra’s
entitlement to construct any project within the water spread area of
Pochampad project. The question must be answered in light of the award
and further award given by the Tribunal which in turn depends on
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interpretation of the bilateral agreement entered into between Andhra
Pradesh and Maharashtra on 06.10.1975.
23. Mr. K. Parasaran, learned senior counsel for Andhra Pradesh
extensively referred to diverse Clauses of the agreement dated
06.10.1975, particularly, Clauses I, II(i),II(ii) and V. He also referred to the
award and submitted that the award is a package and provides for all the
reliefs to which the parties were entitled. Maharashtra is not entitled to put
up Babhali barrage as the award exhausts all reliefs. He submitted that
Andhra Pradesh had conceded in favour of Maharashtra a right to utilize
entire yield to an extent of 241.5 TMC in the high rainfall zone up to Paithan
and Siddheswar dam sites without any restraint taking into consideration
that Maharashtra had agreed to submersion of its land for Pochampad
project. To meet the demand and requirement in the defined region
between Paithan and Pochampad projects, Maharashtra had agreed to a
cap on its utilization to 60 TMC in addition to existing and
sanctioned/cleared projects. The submergence in Maharashtra by
Pochampad project was agreed to by Maharashtra subject to certain
conditions like Andhra Pradesh bearing cost of acquisition, rehabilitation of
displaced families, cost of roads and bridges but no rights were created in
favour of Maharashtra as a condition of submergence to waters within
Pochampad dam site. If Maharashtra had any right to water in Pochampad
storage within its territory it would have been so recorded in the agreement
but the silence in this regard leaves no manner of doubt that Maharashtra
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has no right to water in Pochampad storage. It is the submission of learned
senior counsel for Andhra Pradesh that the apportionment incorporated in
the award is in view of the peculiar basin feature in Andhra Pradesh with
only one site at Pochampad being suitable for construction of irrigation
project and capable of conveying water through canals by gravity flow to
meet the entire drinking and irrigation requirements of Telangana region of
the State. Due to low rainfall, the Telangana region of the State of Andhra
Pradesh, through which a major part of the river flows, is frequently
affected by droughts and famines because of which the said region
requires assured water supply for drinking purposes and the two crops –
Khariff and Rabi.
24. Learned senior counsel Mr. K. Parasaran vehemently
contended that the agreement dated 06.10.1975, which merged into the
award, demonstrates the dichotomy between flowing waters and waters
within the reservoir. The allocation of waters in Godavari basin has been
made on a dichotomy of sources of waters. The expressions in the award
“Godavari basin”, “dam site”, “below dam site” and “up to dam site” have to
be construed having regard to the dichotomy between flowing waters and
waters within the water spread area, concepts in water law and how the
parties understood. He submitted that the award has to be interpreted as a
judgment and not like a statute and the above expressions have to be
construed in the context of rights of states in the inter-state river water. The
expressions “Godavari river basin” and “Godavari drainage basin” used in
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the award mean the entire area drained by the Godavari river and its
tributaries.
25. Learned senior counsel for Andhra Pradesh argued that the
phrase “waters up to” would necessarily mean that there is a starting point
and terminating point up to which it can go. One cannot conceive “upto”
without commencing from a location and proceeding “upto”. It is thus
submitted that phrase “dam site” would necessarily mean entire water held
on the site starting from the concrete dam structure up to the area of the
water stored. He would submit that Clauses I and II(i) of the agreement
deal with waters in the area of Godavari basin allotted to Maharashtra.
Clause II(ii) deals with water allocated to Andhra Pradesh. 60 TMC water
is allowed to Maharashtra from the Godavari basin. Godavari basin is a
river basin which means and includes the entire area drained by the
mainstream and its tributaries – and balance waters in the Godavari basin
up to Pochampad dam site is left for Andhra Pradesh. For the purposes of
meaning of the expression, “river basin”, Mr. K. Parasaran, learned senior
counsel referred to Words and Phrases; Permanent Edition [Volume-V];
pages 292 and 293. He submitted that in the award, the yield of the river
has not been determined and apportioned. After considering the rights in
the various projects of the respective states, the rest of the water in
Godavari basin is allocated to Maharashtra up to 60 TMC and Andhra
Pradesh all the balance water up to Pochampad site.
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26. Mr. K. Parasaran argued that the interpretation of the words
“up to dam site” set up by Maharashtra that it means concrete structure
was contrary to concepts in water law and underlying principle for
allocation of waters in Godavari basin whose allocation has been made on
dichotomy of sources of waters. According to him, “up to Pochampad dam
site” means the Godavari basin water available from the catchment up to
where the water spread of Pochampad project extends as the storage in
Pochampad belongs to Andhra Pradesh. In this regard, he relied upon a
decision of this Court in Orient Papers & Industries Ltd. and another v.
Tahsildar-cum-Irrigation Officer and others1
.
27. Learned senior counsel submitted that the phrases, “below
Paithan dam site and Siddheswar dam site” in Clause II(ii) and “below
Pochampad dam site” in Clause V of the agreement would exclude the
stored waters of such dams to give effect to the restriction imposed on
utilization by the states in such Clauses. The phrases “all waters up to
Paithan dam site” in Clause I and “balance waters up to Pochampad dam
site” in Clause II(ii)” in the context they are used clearly contrast the
flowing water and stored waters respectively in each of the dams. Seen
thus, it leaves no manner of doubt that Maharashtra will be entitled to
waters mentioned in Clause II(i) and Andhra Pradesh the balance of waters
which includes the storage of Pochampad up to FRL of 1091 feet.
1
1998 (7) SCC 303
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28. Learned senior counsel for Andhra Pradesh submitted that
there cannot be lake/pondage of a project of one state within the
lake/pondage of the project of another state; there cannot be a dam within
a dam. Similarly, there cannot be a barrage within a dam because barrage
also obstructs the flow of water and creates storage when the gates are
lowered. He referred to the inter-state meeting between Andhra Pradesh
and Maharashtra held on 21.07.1978 with regard to construction of bridges
and roads. He submitted that there was a difference of opinion with regard
to the river bed level of the then proposed Balegaon project upstream of
Babhali and it was decided to constitute a joint team for inspection but
Maharashtra did not pursue the matter further which would show that
Andhra Pradesh and Maharashtra understood the terms of the award to
mean that there cannot be project within the water prism of Pochampad
project and acted upon as such.
29. On the other hand, Mr. T.R. Andhyarujina, learned senior
counsel for Maharashtra argued that the agreement dated 06.10.1975
between Andhra Pradesh and Maharashtra is an agreement for the
equitable distribution of waters of Godavari river; in absence whereof the
Tribunal would have determined the equitable shares of each state on
Godavari river and its tributaries. As Andhra Pradesh had planned a major
river project of the Pochampad dam with storage of 112 TMC with FRL of
1091 feet by which the territory of Maharashtra was going to be
submerged, it could not be done by Andhra Pradesh without the consent of
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Maharashtra. By Agreement of 06.10.1975, Maharashtra agreed to allow
Andhra Pradesh to have the FRL of Pochampad dam to 1091 feet and
consequent submergence in the river bed in the territory of Maharashtra. In
return and in consideration of this concession by Maharashtra, Andhra
Pradesh agreed that Maharashtra would have a right to utilize 60 TMC of
water on Godavari river leaving the balance to be utilized by Andhra
Pradesh. Under Clause II(i), the agreement provided that Maharashtra can
utilize the waters of Godavari river not exceeding the limit of 60 TMC up to
Pochampad dam site for new projects including additional use over and
above present sanctioned or cleared utilization. Clause II(i) of the
agreement places no restriction on Maharashtra to utilize any waters from
the waters of Pochampad reservoir which would come into Maharashtra. If
the intention of Andhra Pradesh was that Maharashtra should not utilize the
waters of Pochampad reservoir in its territory, such limitation would have
been provided expressly. Learned senior counsel for Maharashtra in this
regard also relied upon Clause VII of the Tribunal’s award and submitted
that this Clause recognised the general right of a state to utilize waters
within its territories and consistent with this Clause no restrictions were
placed on Maharashtra save and except the cap on utilization of 60 TMC
for new projects etc. There cannot be any implied limitation on the use of
waters by Maharashtra and any limitation on the use of water by
Maharashtra within its territory has to be made expressly.
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30. In response to the contention raised by Andhra Pradesh that
there is limitation on the use of the water by Maharashtra in Clause II(i) by
reason of the words “up to Pochampad dam site”, learned senior counsel
for Maharashtra submitted that the expression “dam site” must be given the
same meaning in all places of the award in which it is found, namely, in
Clause II(i), II(ii) and V. According to him, “up to the dam site” means “up to
the concrete structure of the dam”. Any other meaning would result into
absurdity and make other clauses unworkable. He submitted that Andhra
Pradesh itself has understood the location of Pochampad dam site at
particular latitude and longitude and not the reservoir.
31. The agreement dated 06.10.1975 was preceded by full
discussions between the Chief Ministers of two states. We reproduce the
agreement as it is which reads as follows:
“I. Maharashtra can use for their beneficial use all waters up
to Paithan dam site on the Godavari and up to Siddheswar
dam site on the Purna.
II. (i) From the waters in the area of the Godavari basin
below Paithan dam site on the Godavari and below
Siddheswar dam site on the Purna and below Nizamsagar
dam site on the Manjira and up to Pochampad dam site on
the Godavari, Maharashtra can utilize waters not exceeding
60 TMC for new Projects including any additional use over
and above the present sanctioned or cleared utilization, as
the case may be.
(ii) Andhra Pradesh can go ahead with building its
Pochampad Project with F.R.L.+1091’ and M.W.L. +1093’
and is free to utilize all the balance waters up to Pochampad
dam site in any manner it chooses for its beneficial use.
Maharashtra will take necessary action to acquire any land
or structures that may be submerged under Pochampad
Project and Andhra Pradesh agrees to bear the cost of
acquisition, the cost of rehabilitation of the displaced
20Page 21
families and the cost of construction of some bridges and
roads that may become necessary. Maharashtra also agrees
to the submergence of the river and stream beds.
III. (i) In the Manjira sub-basin above Nizamsagar
dam site, Maharashtra can utilize waters not exceeding 22
TMC for new projects including any additional use over and
above the present sanctioned or cleared utilization as the
case may be.
(ii) Andhra Pradesh can withdraw 4 TMC for drinking
water supply to Hyderabad city from their proposed Singur
Project on the Manjira.
(iii) Andhra Pradesh can construct Singur Project with a
storage capacity of 30 TMC. Andhra Pradesh can also use
58 TMC under Nizamsagar Project.
(IV) Maharashtra concurs with the agreement arrived at
between the States of Andhra Pradesh and Karnataka in
regard to the use proposed by Karnataka in the Manjira subbasin upstream of Nizamsagar dam site.
V. Maharashtra and Andhra Pradesh will be free to use
additional quantity of 300 TMC of water each below
Pochampad dam site for new Projects.
VI. Maharashtra and Andhra Pradesh agree in principle
to the taking up of the Inchampalli Project with F.R.L. as
commonly agreed to by the interested States, viz.,
Maharashtra, Andhra Pradesh and Madhya Pradesh.
VII. Maharashtra and Andhra Pradesh agree to take up
the following Joint Projects at the appropriate time with
agreed utilizations:
a). Lendi Project
b). Lower Penganga Project.
c). Pranahita Project
and to set up joint committees for this purpose.
VIII. The States of Maharashtra and Andhra Pradesh
agree that this agreement will be furnished to the
Government of India and also be filed before the Godavari
Water Disputes Tribunal at the appropriate time.”
32. The above agreement was followed by another agreement
dated 19.12.1975 which was entered into between all the five riparian
states, including Andhra Pradesh and Maharashtra. Both these agreements
21Page 22
were entered into during the pendency of water disputes before the
Tribunal. For proper understanding of the controversy, it is necessary to
notice the historical background of the water disputes which were referred
to the Tribunal for adjudication. In 1951, a memorandum of agreement
allocating the flows of river basin among the erstwhile states of Bombay,
Hyderabad, Madras and Madhya Pradesh was drawn up. In the course of
time, the state of Bombay became State of Maharashtra and State of
Hyderabad became state of Andhra Pradesh. Godavari basin underwent
extensive territorial changes by 1956. The states of Maharashtra, Mysore,
Madhya Pradesh and Andhra Pradesh became the riparian states. The
state of Orissa continued to be a riparian state as before. Though state of
Orissa was one of the riparian states but it was not part of 1951 agreement.
By 1960, the five riparian states, namely, the states of Maharashtra,
Mysore, Madhya Pradesh, Andhra Pradesh and Orissa proposed important
schemes for the development of water resources and there were disputes
between them relating to the utilization of the waters of Godavari river
system. On 01.05.1961, the Central Government appointed KrishnaGodavari Commission (“Commission”). The Commission found that without
further data it was not possible to determine the dependable flow
accurately. The Commission, inter alia, observed that the supplies
available in the upper part of Godavari basin (G-1 to G-5 sub-basins) were
inadequate to meet the demands of the projects put forward by the state
governments. However, the supplies available in the lower part of the
22Page 23
Godavari basin (G-7 to G-12 sub-basins) were in excess of the demands
and, accordingly, the Commission suggested the diversion of surplus
waters of the river Godavari into the Krishna river. In January 1962, the
Mysore government applied to the central government for reference of the
water dispute to a tribunal. In March 1963, the Union Minister for Irrigation
and Power echoed the sentiments of some of the riparian states doubting
the validity of the 1951 agreement in Lok Sabha. Action was taken on the
recommendations of the Commission but no agreed formula was arrived at
despite the fact that central government tried to settle the dispute by
negotiations. Several inter-state conferences were held but no solution
could fructify. Fresh applications for reference of the disputes were made
by Maharashtra, Mysore, Orissa and Madhya Pradesh in 1968. Eventually
on 10.04.1969, the central government constituted the Tribunal and
referred to the Tribunal for adjudication the water dispute regarding the
inter-State Godavari river and river valley thereof. On 18.07.1970, the
central government at the request of Maharashtra referred to the Tribunal
the dispute concerning the submergence of its territories by the
Pochampad, Inchampalli, Swarna and Suddavagu projects of Andhra
Pradesh.
33. Before the Tribunal, Maharashtra prayed, inter alia, for a
declaration that the 1951 agreement was void ab initio and/or had ceased
to be operative and allocation of the equitable shares of the states in the
dependable flow of the Godavari basin. Andhra Pradesh prayed for
23Page 24
declaration that 1951 agreement was valid and binding upon the party
states and for suitable directions for implementation of the agreement. In
case the 1951 agreement was held to be not binding, Andhra Pradesh
prayed for, inter alia, a direction that a full Godavari (Pochampad) Project,
as envisaged by the erstwhile Hyderabad government, be allowed to be
proceeded with without any restraint and an injunction restraining
Maharashtra from utilizing Godavari waters at Jayakwadi or any other
place above Pochampad in a manner detrimental to the full scope of the
aforesaid project and injunction restraining Maharashtra and Mysore from
undertaking any new schemes in Manjra above Nizamsagar.
34. As noted above, during the pendency of disputes before the
Tribunal, the riparian states entered into bilateral and multi-lateral
agreements which were endorsed by the Tribunal in its award and based
its decision on these agreements. The relevant agreements for the present
purpose are the agreements dated 06.10.1975 and 19.12.1975.
35. The Tribunal in Chapter IV of the award has noted that the
entire area drained by the river and its tributaries is called river basin. The
expressions “Godavari basin”, “Godavari river basin” and “Godavari
drainage basin” in the award have been explained to mean the entire area
drained by the Godavari river and its tributaries. The Tribunal noted the
diverse agreements entered into between riparian states including the
agreement between Maharashtra and Andhra Pradesh dated 06.10.1975
and the agreement dated 19.12.1975 between Karnataka, Maharashtra,
24Page 25
Madhya Pradesh, Orissa and Andhra Pradesh, received them in evidence
and held that by these agreements the states have adjusted their claims
regarding utilization of waters of Godavari river and its tributaries and
agreed to the sanction and clearance of the projects for the utilization of the
waters of the Godavari river and its tributaries. With reference to the
agreement dated 19.12.1975 to which all the five states were parties and
the agreement dated 06.10.1975, the Tribunal observed that the entire
waters of sub-basin G-2 and the waters of sub-basin G-1 up to Paithan
dam site and the waters of sub-basin G-3 up to Siddheswar dam site were
allotted to Maharashtra and Maharashtra was further allowed the use of the
waters of the Godavari basin not exceeding 60 TMC below Paithan dam
site on the Godavari river and below Siddheswar dam site on the Purna
river and below Nizamsagar dam site on the Manjra river and up to
Pochampad dam site on the Godavari river. Having regard to the
peculiarities of the Godavari river and river basin, the Tribunal found no
objection in allotting to one or more state or states water up to defined
points or project sites or within certain sub-basins or reaches of the river.
The Tribunal noted that every agreement need not apportion or allocate all
waters of river and river basin.
36. It appears that on 16.07.1979 at the fag end of the
proceedings before the Tribunal, counsel for Maharashtra contended that
until a comprehensive agreement was signed by all the parties there was
no complete allocation of the entire waters of the Godavari river and
25Page 26
objected to the Tribunal’s proceeding to give its decision. However,
counsel for Maharashtra admitted before the Tribunal that the agreements
to which Maharashtra is a party would be binding on it. Accordingly, the
Tribunal observed that there is no dispute that Maharashtra is bound by
agreements to which it is a party, namely, the agreement dated 19.12.1975
and bilateral agreement dated 06.10.1975 between Maharashtra and
Andhra Pradesh.
37. The Tribunal made it abundantly clear in the award that it was
dividing the waters of the river Godavari on the basis of the agreements
already entered into between the party states, the agreements filed by the
parties have apportioned waters of Godavari river between them.
38. While giving decision on issue no. IV(b), inter alia, relating to
submergence of the territories of Maharashtra by Pochampad project, the
Tribunal held that the agreements between the States have settled all
questions and disputes. With regard to issue no. IV(c), whether it is lawful
for the Andhra Pradesh to execute project likely to submerge the territories
of other states without their prior consent, the Tribunal said that generally
any project of Andhra Pradesh involving submergence of the territory of
other states was not permissible without the prior consent of the affected
states. As regards issue no. VI, “to what relief are the parties entitled?” the
Tribunal held that the agreements filed by the parties and its final order
provide for all the reliefs to which the parties are entitled.
26Page 27
39. Clause V of the final order (in the award) passed by the
Tribunal reads as follows:
“The following agreements so far as they relate to the
Godavari river and Godavari river basin be observed and
carried out:—
A. Agreement dated the 19th December, 1975 between the
States of Karnataka, Maharashtra, Madhya Pradesh, Orissa
and Andhra Pradesh annexed hereto and marked Annexure
“A” agreeing to the clearance of projects for the utilization of
waters of the Godavari river and its tributaries in accordance
with:—
(a) xxx xxx xxx
(b) Agreement between the States of Maharashtra
and Andhra Pradesh on the 6th Oct. 1975—Annexure
II.
(c) xxx xxx xxx
(d) xxx xxx xxx”
40. Clause VII of the final order (in the award) provides that the
right or power or authority of any state to regulate within its boundaries the
use of water, or to enjoy the benefit of waters within that state in a manner
not inconsistent with the order of the Tribunal shall not be impaired.
41. Thus, from the award, it is clear that the Tribunal put its seal of
approval and endorsed the agreement dated 06.10.1975 between
Maharashtra and Andhra Pradesh and the agreement dated 19.12.1975
between Karnataka, Maharashtra, Madhya Pradesh, Orissa and Andhra
Pradesh and ordered that the allocation of waters in the Godavari river and
Godavari river basin between Maharashtra and Andhra Pradesh and the
27Page 28
clearance of projects for utilization of waters of the Godavari and its
tributaries shall be observed and carried out as per the agreements.
42. After the award was passed by the Tribunal on 27.11.1979
under Section 5(2) of the 1956 Act the reference was filed by the central
government on 25.02.1980 seeking explanation and guidance on few
aspects. One of them was that the particulars of existing/sanctioned or
cleared schemes have not been given nor the utilizations through them
have been quantified anywhere in the final order in light of the agreements
between the parties which referred to utilizations through
existing/sanctioned or cleared schemes. The central government requested
the Tribunal to consider the desirability of incorporating necessary details
in its final order. Andhra Pradesh and Karnataka supported the reference
by the central government but Maharashtra, Madhya Pradesh and Orissa
opposed it. The Tribunal clarified in the further award dated 07.07.1980
under Section 5(3) of the 1956 Act by observing that its decision was
based on the agreements of the parties annexed to the final order (award)
dated 27.11.1979. The Tribunal observed that none of the parties pleaded
before it that these agreements should be so modified as to include
particulars of the existing/sanctioned or cleared schemes of the utilizations
thereunder. The Tribunal accordingly held that it was not necessary to
include these particulars for the decision.
43. The other aspect on which the central government sought
clarification was, “with a view to ensuring that the states, mainly, the upper
28Page 29
states, do not exceed the stipulated allocations it may be necessary to
obtain data regarding storages and utilization from one another each year.
Also it would be desirable to provide for inspection of sites in a basin state
by the other basin states. The Tribunal may kindly consider the desirability
of providing some enabling clause in their final order to this effect so that
there is no difficulty at a later stage for any state to obtain the data from the
other state when the latter shows reluctance to do so”.
44. Maharashtra opposed any clarification on the above point
while Andhra Pradesh supported it. The Tribunal observed that as supply of
such data by one state to another was not incorporated in the agreements,
it cannot be done now at this stage. The Tribunal expected that there would
be mutual co-operation between the states and each state will supply such
data to the other state as and when required.
45. The award dated 27.11.1979 and the further award dated
07.07.1980 leave no manner of doubt that the Tribunal has determined the
distribution of water in the Godavari river on the basis of the agreements of
the parties. While doing so, the Tribunal was alive to the position that in
deciding water disputes in inter-state river, the rule of equitable distribution
of the benefits of the river applies so that each state gets a fair share of the
water of the common river but there is no rigid formula for the equitable
distribution of waters of a river because each river system has its
peculiarities. Although the Tribunal did not determine yield of the Godavari
river in the award, but the same became unnecessary as the states agreed
29Page 30
that the Tribunal should base its decision on the agreements of the parties.
In the absence of any determination of the yield of the Godavari river in the
award, it cannot be said that the Tribunal has not apportioned the Godavari
river water between the riparian states. Can it be said that the two states,
Andhra Pradesh and Maharashtra, were not alive to the peculiar features of
Godavari river? We do not think so. Andhra Pradesh and Maharashtra
must have had regard to the peculiar features of Godavari basin – the main
Godavari runs in Maharashtra, forms a common boundary between
Maharashtra and Andhra Pradesh, runs in Andhra Pradesh again forms a
common boundary between Andhra Pradesh and Maharashtra and
thereafter forms a common boundary between Andhra Pradesh and
Madhya Pradesh and finally runs in Andhra Pradesh – when they entered
into the agreement dated 06.10.1975. Maharashtra has been given right
to use for their beneficial use all waters up to Paithan dam site on
the Godavari, up to Siddheswar dam site on the Purna. This is clear from
Clause I of the agreement dated 06.10.1975.
46. Clause II of the agreement is in two parts. Clause II(i)
provides that from the waters in the area of the Godavari basin
below Paithan dam site on the Godavari and below Siddheswar dam site
on the Purna and below Nizamsagar dam site on the Manjra and up to
Pochampad dam site on the Godavari, Maharashtra can utilize waters not
exceeding 60 TMC for new projects, including any additional use over and
above the present sanctioned or cleared utilization, as the case may be.
30Page 31
47. Clause II(ii) enables Andhra Pradesh to build
Pochampad project with FRL+1091 feet and MWL+1093 feet.
Andhra Pradesh under this Clause has been given liberty to
utilize all the balance waters up to Pochampad dam site in
any manner it chooses for its beneficial use. The debate has mainly
centered around these two Clauses, namely, Clause II(i) and Clause
II(ii). The interpretation to these Clauses by the two states differs. Andhra
Pradesh says that utilization of waters not exceeding 60 TMC for new
projects by Maharashtra under Clause II (i) is from water flowing through
the river from the catchment area while Maharashtra says that this
Clause entitles it to utilize waters of the river Godavari up to
Pochampad site which may be the water flowing through the river from the
catchment area or the water from within the water storage or pondage of
the dam. Such utilization is not confined to the water flowing through the
river from the catchment area. We have to ascertain the meaning of the
expressions “from the waters in the area of the Godavari basin” and “up to
Pochampad dam site”. We have to also see whether the agreement dated
06.10.1975 has distributed the waters in Godavari basin between the two
party states on a dichotomy of sources of waters namely, water spread
area of dam/storage and the flowing waters.
48. The words “from the waters in the area of Godavari basin” in
Clause II(i) have two significant expressions, one, ‘Godavari basin’ and the
other, ‘in the area of’. The expression “Godavari basin” along with the
31Page 32
other two expressions “Godavari river basin” and “Godavari drainage
basin” in the award have been explained to mean the entire area drained
by the Godavari river and its tributaries. The Tribunal rightly explained so
because the general meaning of river basin means entire area drained by
the river and its tributaries. The question is, whether the parties to the
agreement dated 06.10.1975 by use of the words “from the waters in the
area of the Godavari basin” intended to mean the waters flowing in the
Godavari river from the catchment area below the three dam sites
mentioned in Clause II(i) and up to Pochampad dam site on the Godavari
or used these words to include all waters – flowing from the catchment
area as well as the water spread area of the Pochampad dam which fell in
the territory of Maharashtra. If what Andhra Pradesh contends that 60
TMC water is allowed to Maharashtra only from the flowing waters in
Godavari basin is right then the agreement would have used the words
“from the waters of Godavari basin” and not “from the waters in the area of
Godavari basin”. By use of the words “from the waters in the area of
Godavari basin” in contradistinction to “from the waters of Godavari basin”,
the parties have intended to mean waters in the geographical area of
Godavari basin and not confined to flowing waters of Godavari basin.
49. We are in agreement with Mr. T.R. Andhyarujina that if the
intention of Andhra Pradesh was that Maharashtra should not utilize the
waters of Pochampad reservoir in its territory, such limitation would have
been provided expressly. When an agreement is entered into between two
32Page 33
or more states, they have assistance of competent legal and technical
minds available with them. The states do not have lack of drafting ability.
Such agreement is drafted by trained minds. An agreement such as interstate water sharing agreement would not leave its interpretation to chance.
In our view, in the absence of any express limitation, except quantity, on
the use of water by Maharashtra within its territory in Clause II(i), the
interpretation put by Andhra Pradesh to this Clause cannot be accepted.
50. Moreover, apportionment of the Godavari river was agreed to
by the two states in a typical situation in as much as building of
Pochampad project by Andhra Pradesh with FRL+1091 feet and
MWL+1093 feet involved submergence of certain areas in the State of
Maharashtra. But for Maharashtra’s consent to submergence of its area,
Andhra Pradesh could not have built Pochampad dam with capacity of 112
TMC; rather its capacity would have been limited to 40 TMC. Seen thus, in
the absence of any express clause, it cannot be said that Maharashtra was
given right to utilize waters not exceeding 60 TMC for new projects from
the flowing waters of the Godavari basin alone. We are not persuaded to
accept the submission of Mr. K. Parasaran that the apportionment of
waters is founded on dichotomy of two sources of waters. On careful
reading of Clause II(ii) we find that this Clause gives right to Andhra
Pradesh to utilize all the balance waters up to Pochampad dam site in any
manner it chooses for its beneficial use. The use of the expression, “all the
balance waters up to Pochampad dam site” signifies that parties agreed
33Page 34
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.
51. The contention of Mr. K. Parasaran, learned senior counsel
for Andhra Pradesh that up to Pochampad dam site in Clause II(i) and
Clause II (ii) means up to the spread area of Pochampad dam and not the
concrete structure of the dam does not appeal to us. The common
meaning of the word “dam” is the structure across the stream, including the
abutment on the sides. The dam is an obstruction to the natural flow of the
water of a river or a barrier to prevent the flowing water. A dam is built
across a water course to confine and keep back flowing water. In Words
and Phrases; Permanent Edition 11, “dam” is explained with reference to
decision in Morton v. Oregon Short Line Ry. Co.2
as follows:
“A “dam” is a structure composed of wood, earth, or other
material, erected in and usually extending across the entire
channel at right angles to the thread of the stream, and
intended to retard the flow of water by the barrier, or to
retain it within the obstruction.”
51.1. The same book with reference to Colwell v. May’s Landing
Water Power Co.3
, explains the word “dam” as follows:
“The word “dam” is used in two different senses. It properly
means a structure raised to obstruct the flow of water in a
river, but by well-settled usage it is often applied to
designate the pond of water created by its obstruction. The
2
87 P. 151, 153, 48 Or. 444
3
19 N.J. Eq. (4 C.E.Green) 245, 248
34Page 35
word is used in this conventional sense in some statutes,
and it is evidently used in this sense in a statute giving
power to raise the “dam and water-works” to a height
mentioned.”
51.2. In the Indian Standard Glossary of Terms Relating To River
Valley Projects, Part 8, Dams and Dam Sections [First Revision],
paragraph 2.27 explains “dam” as follows :
“A barrier constructed across a river or natural watercourse
for the purpose of: (a) impounding water or creating
reservoir; (b) diverting water there from into a conduit or
channel for power generation and or irrigation purpose; (c)
creating a head which can be used for generation of power;
(d) improving river navigability; (e) retention of debris; (f)
flood control; (g) domestic, municipal and induses; (h)
preservation of wild life and pisciculture, (j) recreation, etc.”
51.3. Glossary of Irrigation and Hydro-Electric Terms and Standard
Notations used in India, Third Edition, published by Central Board of
Irrigation and Power, explains “dam” as under :
“Dam : A structure erected to impound water in a
reservoir or to create hydraulic head.”
51.4. “Reservoir” is defined in the said publication as follows :
“Reservoir : A pond, lake, or basin, either natural or artificial,
for the storage, regulation and control of water”.
51.5. “Introduction to dams”, Publication No. 220 by Central Board
of Irrigation and Power under the Chapter “Dam Sites – Large Dams” with
reference to book by J. Cotillon explains the position with regard to dam
sites as under:
35Page 36
“A dam is a structure meant to retain water. Only hydraulic
dams are dealt with in this paper; when it is question of
other dams, it will be specified “Tailing dam”, “industrial
waste dam”.
1. Generally, this retention takes place in a natural
depression. But it can also take place in an artificial
enclosure created, for instance, by embankments set-up
along the banks of a river.
Moreover, the enclosure can be fully artificial: this is the
case of a basin filled by pumping, created on a plateau and
closed by a ring embankment; in this case, we speak about
an “embankment” rather than about a “dam”.
2. Generally, the dam is set-up on a river.
But it can be constructed in a dead valley where only a
trickle of water flows; the reservoir is then filled by pumping
and/or by gravity diversions.
It can also close a pass on the perimeter of a reservoir, it is
then called “secondary dam” as opposed to “main dam”
which closes the natural depression (living valley or dead
valley).
3. The dam retains generally the upstream water, its
purpose may be also to retain the downstream water for a
few hours. That is, an exceptional tidal wave (anti-storm
dam).”
51.6. In the same book under the Chapter “Role of Dams-Purpose
and Symbols”, in paragraph 2.1.2 it is stated as under:
“2.1.2 Creation of a Reservoir
The objective consists in altering the natural or disturbed
condition of the river by acting upon the filling or the
draining of the reservoir in order to fulfil the following
objectives:
• to cut down the floods
• to raise low waters
• to guarantee a discharge higher than that of the low
waters for all the cases described in 11 and 12.
• to reduce the disturbances in the regime of the river
upstream: a reservoir is necessary in the immediate
downstream of a leading hydroelectric plant in order to
restore the continuity and the regularity of the discharge;
such a dam or reservoir is then called “dam” or
“compensating reservoir”.
36Page 37
52. It is sound principle of interpretation that if an expression has
been used in an agreement at more than one place, such expression must
bear the same meaning at all places unless expressed otherwise. When
the agreement dated 06.10.1975 is read carefully, it would be seen that in
Clause V, it is provided that Maharashtra and Andhra Pradesh will be free
to use additional quantity of 300 TMC of water each below Pochampad
dam site for new projects. If the meaning of Pochampad dam site is given
meaning as spread area of Pochampad dam, Clause V does not make
sense and leads to absurdity. Clause V becomes workable only when
Pochampad dam site is understood to mean concrete structure of the dam.
We have no doubt that the dam site in the agreement has the same
meaning in all clauses and it means the concrete structure of the dam. In
our view, therefore, Clause II(i) that provides that Maharashtra can utilize
waters not exceeding 60 TMC for new projects from the waters in the area
of the Godavari basin below three dam sites noted therein and up to
Pochampad dam site on the Godavari gives right to Maharashtra to utilize
waters of the Godavari river up to Pochampad site which may be water
flowing through the river from the catchment area or the water spread area.
Such utilization is not confined to the water flowing through the river from
the catchment area. The thrust of the parties in Clause II(i) and the essence
of this clause is to put a cap on the right of Maharashtra to utilize waters 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
37Page 38
exceeding that limit. There is no demarcation made that the utilization of
waters not exceeding 60 TMC for new projects by Maharashtra shall be
from the flowing water. While reaching the agreement, the two states must
have sought to equalize the burden and benefits. We do not think that we
can read such demarcation impliedly in Clause II(i) as contended by
Andhra Pradesh.
53. As a matter of fact, Andhra Pradesh understood the location of
Pochampad dam site at particular latitude and longitude and not the
reservoir. This also indicates that by Pochampad dam site what is meant
in the agreement dated 06.10.1975 is the structure and not the spread
area.
54. In Orient Papers & Industries Ltd.1
, this Court was concerned
with provisions of Orissa Irrigation Act, 1959, particularly, Sections 4(d)
and 28 thereof. While dealing with the argument that the irrigation work as
defined under Section 4(d) would not cover the area in which the reservoir
lies, but only a reservoir, tank, anicuts, dams, weirs, canals, barrages,
channels, pipes, wells, tubewells and artesian wells constructed,
maintained or controlled by the state or a local authority, this Court referred
to Section 4(d) and observed as follows :
“14. Irrigation work is defined under Section 4(d) of the Act
as to include all land occupied by the Government for the
purpose of reservoir, tanks, etc., and other structures
occupied by or on behalf of the State Government on such
land. A reservoir cannot be understood merely to be a
means to hold water in a stream. It is only by controlling the
flowing stream in an area that water can be stored in a
38Page 39
reservoir. Viewed thus, irrigation work would include land
used for such purpose. In this case the finding recorded by
the authorities is in accord with this view. “Reservoir” may
not necessarily mean only the constructed part of the land
but includes the area where the water is held by a dam
constructed by the Government; then if from such a point
falling within that area water is drawn it must be held that
the appellant is liable to pay the water rate. Therefore,
there is no substance in the contention urged on behalf of
the appellant that the point at which the water is drawn by
the appellant does not lie within the reservoir area or water
is not drawn from a government source or a water work.
Under Section 28 of the Act, the Irrigation Officer is
empowered to fix the compulsory basic water rate for
supply of water from a government source as distinguished
from a private source.”
54.1. In Orient Papers & Industries Ltd.1
, this Court did hold that
reservoir may not necessarily mean only the constructed part of the land
but includes the area where the water is held by a dam. This is generally
what is understood by reservoir but, as noted above, we are concerned
with the interpretation of the words “up to dam site” occurring in the
agreement between the two states which was entered into when the
dispute was already pending before the Tribunal and Andhra Pradesh was
intending to construct Pochampad dam with 112 TMC that would submerge
certain areas of Maharashtra. Therefore, these words have to be
understood in the context of the agreement and terms thereof. In the overall
context it is very difficult to hold that dam site is given meaning in the
agreement as spread area of dam. Thus, in fact situation of the present
case, Orient Papers & Industries Ltd.1 has no application.
39Page 40
55. Generally, there cannot be a dam within a dam. This is also
true that generally there cannot be lake/pondage of a project of one state
within the lake/pondage of the project of another state. But we are
concerned with specific water sharing agreement between the two states
which has been endorsed by the Tribunal. The parties have not brought any
oral expert engineering and hydrographic testimony. In the circumstances,
we have to see extent of rights and obligations created by virtue of the
agreement between the two states and the award given by the Tribunal.
Like any other agreement, the terms of inter-state agreement ordinarily
must be found out from the actual words employed therein. We have
already analysed the agreement dated 06.10.1975 above and we find merit
in the submission made on behalf of Maharashtra that in Clause II(i), there
is no limitation imposed upon Maharashtra to utilize the waters of the
Godavari river from the water flowing through the river from the catchment
area only in its territory. What Maharashtra has to ensure is that it does not
utilize waters of Godavari river in its territory exceeding 60 TMC for new
projects and it does not interfere with natural and continuous flow of water
into Pochampad reservoir.
56. Clause VII and Clause III(C) of the final order (award) passed
by the Tribunal also support the view which we have taken. Clause VII
provides that right or power or authority of any state to regulate within its
boundaries the use of water, or to enjoy the benefit of waters within that
state in a manner not inconsistent with the order of the Tribunal shall not be
40Page 41
impaired. Clause III(C) says that the water stored in any reservoir across
any stream of the Godavari river system shall not by itself be reckoned as
depletion of the water of the stream except to the extent of the losses of
water from evaporation and other natural causes from such reservoir.
57. Alternatively, even if we accept the stand of Andhra Pradesh
that utilization of waters to the extent of 60 TMC for new projects by
Maharashtra from below the three dam sites mentioned in Clause II(i) up to
Pochampad dam site can be only from water flowing through the river from
the catchment area and not from the pondage/water spread area of
Pochampad dam, the question that arises for consideration is, whether
Andhra Pradesh is entitled to injunction against Maharashtra from setting
up Babhali barrage in the suit filed under Article 131 of the Constitution.
58. The US Supreme Court in State of Washington v. State of
Oregon4
has exposited two principles, one, a contest between the states is
to be settled in the large and ample way that alone becomes the dignity of
litigants concerned and two, burden of proof falls heavily on complainant in
a suit for injunction when states are involved. The above principles are
sound principles in law and, in our view, there is no reason for not applying
them to a suit of this nature. We are of the considered view that in a suit for
injunction filed by one state against the other state, the burden on the
complaining state is much greater than that generally required to be borne
by one seeking an injunction in a suit between private parties. The
4
297 US 517
41Page 42
complaining state has to establish that threatened invasion of rights is
substantial and of a serious magnitude. In the matter between states,
injunction would not follow because there is infraction of some rights of the
complaining state but a case of high equity must be made out that moves
the conscience of the Court in granting injunction. We shall consider
whether burden of that degree has been discharged by Andhra Pradesh on
the charge of wrong doing by Maharashtra in construction of Babhali
barrage and a case of substantial injury of a serious magnitude and high
equity made out.
59. According to Andhra Pradesh, Pochampad project has three
sources of contribution of its storage (i) from the Maharashtra territory of
Godavari basin below Paithan dam, (ii) contribution from Manjra tributary
and (iii) from the catchment within the state of Andhra Pradesh. It is the
case of Andhra Pradesh that invasion of water spread area by construction
of Babhali barrage would significantly deprive inhabitants of the Adilabad,
Nizamabad, Karimnagar, Warangal, Nalgonda, Khammam and Medak
districts of having water for irrigation and drinking purposes. Moreover, the
construction of Babhali barrage prejudicially affects Andhra Pradesh (a)
having regard to the FRL of Pochampad dam and the height of Babhali
barrage as water would confine its level, there will be reverse flow up to 65
TMC (b) Maharashtra will be drawing water from Babhali barrage with the
aid of pump sets installed along 58 km length and it will be enabled to draw
more than 2.74 TMC, thereby exceeding its entitlement of 60 TMC; (c)
42Page 43
Maharashtra will utilize the non-monsoon flows to the fullest extent even if
the 75% dependability, as pleaded by Maharashtra, is only 2.73 TMC, still
Maharashtra is in a position to appropriate more than 2.74 TMC in 74% of
the year and (d) Maharashtra will utilize the waters from Pochampad
storage during the remaining 25% of the deficit years where non-monsoon
yield is less than 2.74 TMC. Andhra Pradesh complains that as per the list
of major, medium and minor projects sanctioned in Maharashtra after
06.10.1975 the gross utilization by Maharashtra of all the projects will be
63.018 TMC. Andhra Pradesh in this connection relies upon the additional
affidavit filed by the Maharashtra.
60. Andhra Pradesh further complains that in a given year in the
absence of adequate contribution from the Maharashtra territory of
Godavari basin, Pochampad dam may have contribution from the other two
sources, namely, contribution from Manjra territory and from the catchment
within the state of Andhra Pradesh which would result in the storage of
Pochampad into the territory of Maharashtra. Any construction within
submergence area in Maharashtra and appropriation of water from it would
result in Maharashtra drawing from a source over which it has no right.
61. On the other hand, Maharashtra says that it was using water
within its territory which is now part of Pochampad storage prior to 1975 by
lift irrigation schemes. Babhali barrage construction is partly to establish
the requirements of these lift irrigation schemes. It is stated that there were
13 lift irrigation schemes which were existing, sanctioned and cleared on
43Page 44
the Godavari river up to the present Babhali barrage and they were utilizing
about 2.6 TMC. Out of these 13 lift irrigation schemes; 6 were within the
submergence of Pochampad. These schemes were operated successfully
for seven to ten years from its commencement but they were not fully
operated later due to non-availability of sufficient water in the river. After
the agreement dated 06.10.1975, Maharashtra had planned for the Babhali
barrage on the Godavari river within its territory in 1995. Babhali barrage
was planned for a life saving irrigation of 7995 hectares and drinking water
for 58 villages and three towns. Maharashtra denies that water spread area
of the Pochampad dam is 55 km within the territory of Maharashtra.
Maharashtra asserts that the water spread area is not beyond 32 km within
Maharashtra territory. Babhali barrage project requires 2.74 TMC of water
out of the allocation of 60 TMC for new projects under the agreement. The
maximum quantity of water which Maharashtra can lift during the period
from 28th October till the end of June next year is only 2.74 TMC of which
only 0.6 TMC is from the common submergence of Pochampad reservoir
and Babhali barrage. Maharashtra has denied the allegation of Andhra
Pradesh that it will be drawing water from the Babhali barrage with the aid
of pump sets installed along 58 km length and it will be enabled to draw
more than 2.74 TMC and thereby exceeding its entitlement of 60 TMC.
62. 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
44Page 45
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.
63. As regards lift irrigation schemes, Maharashtra has averred in
paragraph 12(ii) of the amended written statement filed on 30.01.2008 as
under:
“Below Vishnupuri Barrage on the main Godavari river and
the State border with Andhra Pradesh there is a vast area
and population of Nanded District in Maharashtra on the
both the banks of Godavari over a stretch of 97 KMs. which
is in dire need of irrigation and drinking water supply to 58
villages. In view of this acute water need and no other
alternate resources available, lift irrigation schemes had
been constructed by Maharashtra during 1972 to 1975 for
lifting water from the main Godavari river for drinking water
and some Rabi irrigation. No objection was raised to such
scheme by Andhra Pradesh even though the water was
extracted from the submergence of the Pochampad project
in Maharashtra.”
63.1. Then in para 13, the following averment is made:
“These Lift Irrigation schemes after construction were
operating in initial years with reasonable satisfaction. The
lifting of water at these sites were planned for the fair
weather season Rabi and hot-weather irrigation and drinking
water supply for the entire year. Subsequently, difficulties
were experienced in getting the needed river supplies in an
assured manner from these fluctuating daily river flows.
45Page 46
There was acute agitation and pressure from the local
people of 58 villages to provide them with a regulating
scheme to get assured supply of water for irrigation and
drinking water according to their needs. To enable this
requirement, it was decided in 1995 to create a small
pondage at Babhali to assure and regulate the needed
supplies.”
63.2. In paragraph 14, it is averred as under:
“……….The gates of Babhali Barrage are therefore
proposed to be kept open during monsoon period upto latter
half of October, as if there is no barrage and lowered
thereafter to create necessary small pondage in fair-weather
to meet the dire needs in Maharashtra out of the permitted
share of 60 TMC. The Barrage crest level at Babhali is at
river bed level and therefore, there will be no obstructions to
Godavari river flows upto Andhra Pradesh’s Pochampad
dam during monsoon period. The small pondage at Babhali
(2.74 TMC) proposed to be created during fair-weather is
only a negligible fraction of Pochampad storage of 112 TMC
out of which only 0.6 TMC is a common storage. By the
middle of December, Pochampad storage recedes totally
away from Maharashtra’s territory and therefore the
pondage at Babhali during operation does not interfere or
encroach with the Pochampad storage of Andhra
Pradesh…..”
63.3. In paragraph 17 (xiiiA)(iii), (iv),(v)(a),(b),(c) and (d),
Maharashtra has stated as follows:
“17(xiiiA)(iii) After middle of October, the gates at Babhali
Barrage would be lowered to create a small pondage of 2.74
TMC by storing the post monsoon or dry weather Godavari
river flows to enable individual farmer’s pumps to lift the
water for the basic water supply needs of people including
drinking water on the river banks and to stabilize and to
ensure some Rabi and Hot weather irrigation part of which is
already in existence by various lifts along this stretch of the
Godavari river.
(iv) The overlapping storage of Pochampad and Babhali
when constructed is only to the extent of 0.6 TMC out
of 112 TMC live storage of Pochampad at FRL+1091
feet(330.56 m.). This 0.6 TMC overlapping small
storage at the upstream end of Pochampad Reservoir
46Page 47
is in any case going to be silted up very soon making
overlapping storage negligible.
(v) The contention that between Babhali Barrage crest
level and the river bed level at State border, there is
65 TMC of Pochampad storage which can be pumped
up by Maharashtra by reserve flow is baseless and
without any substance, because
(a) Maharashtra Government is not installing any
pumps or constructing any canals at Babhali to
lift water, but only creating a pondage for
individual farmers to lift for their own small
irrigation needs.
(b) The Pochampad storage level will not remain
at Babhali Barrage crest level throughout
October to May but recede to a level lower
than Babhali Barrage still level by end of
December when there can be no lifting of
water at all. Therefore, even theoretically,
there is no possibility of a reserve flow into
Babhali Barrage after December.
(c) In the absence of the Babhali Barrage
Maharashtra could have utilized its permitted
share of 60 TMC for new projects from this
stretch of Godavari river occupied by
Pochampad storage by putting up necessary
capacity pumps in this stretch of Godavari river
occupied by Pochampad storage to which
Andhra Pradesh could not have objected.
(d) At Babhali Barrage Maharashtra has planned
for life saving irrigation of 7995 ha. and
drinking water for 58 villages and 3 towns
which requires only 2.74 TMC of water of its 60
TMC share. The entire allegation of using 65
TMC of Pochampad water is baseless because
such quantity cannot be lifted during the period
of November to December when the level
reaches the sill level. In the present Babhali
Barrage scheme the intention is to only create
a small pondage of about 2.74 TMC, which will
be lifted by the individual farmers over a period
of about 9 months. 65 TMC would be required
to irrigate about 3.5 lakhs ha. which is not
available at Babhali site. Moreover, for lifting
65 TMC water, a pumping capacity of about
162350 h.p. would be required and to utilize
this pumping capacity about 121.11 MW of
electricity will be necessary. The State of
47Page 48
Maharashtra has not planned to install any
such pumps at Babhali.”
64. Before this Court was moved by filing the present suit, Andhra
Pradesh objected to the Babhali barrage in 2005. As the dispute could not
be resolved by the two states amicably, the Central Water Commission
(‘CWC’) intervened. In the meanwhile, a public interest litigation was also
filed before this Court. One of the prayers therein is for issuance of
directions against Maharashtra to stop the construction of Babhali barrage
and direction to the central government to take appropriate action to
enforce the agreement dated 06.10.1975 reached between the two states.
On 10.04.2006 this Court requested the Minister for Water Resources to
call for the meetings of the officers and others from the two states with a
view to resolve the issue and if it becomes necessary, the Minister may
request the Prime Minister to intervene in the matter.
65. On 26.04.2006, the Chairman, CWC convened the technical
committee meeting. Maharashtra on that day made a presentation
highlighting the following facts:
“Storage of Babhali barrage is well within the banks. The sill
level and FRL of Babhali barrage are 327 m and 338 m
respectively and 13 gates of 15 m x 11 m size are proposed
to be installed. The Gross storage of Srirama Sagar Project
and that of Babhali barrage are 112 TMC and 2.74 TMC
respectively and there is a common storage of 0.60 TMC
which is just 0.54% of the storage of SRSP. Command area
of Babhali barrage is 7995 ha.”
48Page 49
66. On behalf of Andhra Pradesh, it was stated that more than 50
per cent of the time Pochampad dam has not filled up to designed capacity
and the water proposed to be stored by Babhali barrage would further
reduce its storage which rightfully belongs to Andhra Pradesh and Andhra
Pradesh cannot agree to construction of Babhali barrage in the
submergence area of Pochampad dam. In the meeting of 26.04.2006, three
alternative situations emerged which are as under:
1. Maharashtra to give their plan for the utilization of 60
TMC of water agreed with A.P. in addition to 42 TMC and
the need for construction of Babhali Barrage.
2. To ensure that gates are lowered only after Sriram
Sagar dam is filled up to its designed capacity or alternately
on a date to be mutually agreed by both the states, whichever occurs earlier.
3. Possibility of reducing the height of Babhali Barrage
to limit the storage to their minimum requirement during
December to February to be explored by Govt. of
Maharashtra.
67. Maharashtra agreed to examine the above suggestions and
submit the proposal for consideration in the next meeting.
68. On 19.05.2006, the second meeting of the technical committee
under the Chairmanship of the Chairman, CWC was held. The minutes of
the meeting dated 19.05.2006 recorded as under:
“1. The 75% dependable flows at Yelli gauging site was
reported as 1530 MCM (54.03 TMC) considering a
hydrologic year and 78.34 MCM (2.77 TMC) considering
post monsoon months from 28th October to May end. These
figures need to be rechecked and confirmed.
2. Babhali barrage to be constructed with 2.74 TMC
capacity and the gates to be lowered on 28th October. This
proposal was not acceptable to Govt. of Andhra Pradesh
because they maintained that Babhali barrage is an
49Page 50
encroachment into the submergence area of Sri Ram Sagar
Project (SRSP). They also apprehended that Govt. of
Maharashtra can use waters several times the capacity of
barrage, which will affect the storage of SRSP adversely.
3. The 2nd proposal given by the Govt. of Maharashtra
was regarding reduction in the height of the gates of the
Babhali barrage. They have worked out the minimum
requirement from Babhali barrage considering the
requirement for Rabi crop up to February and drinking water
requirement up to June as 30.84 MCM (1.09 TMC). In
addition to this, intercepted water of SRSP required to be
released from Babhali Barrage is of the order of 17.00 MCM
(0.6 TMC) and the evaporation losses may be considered of
the order of 0.27 TMC. To meet the above total requirement,
the gross capacity for Babhali barrage has been worked out
as 1.96 TMC. For this storage, the FRL of Babhali Barrage
as per the Area-Capacity curve submitted by Govt. of
Maharashtra in the meeting is 336.5m, resulting in a
reduction of the height of the gates by 1.5 m. This proposal
was also not acceptable to Govt. of Andhra Pradesh.”
68.1. The minutes further recorded:
“Govt. of Maharashtra submitted that there is no other
possibility for drinking water supply in this region since, from
the month of November-December, the storage in SRSP
recedes considerably and water spread falls below the
border. The farmers in this region need water for irrigating
their Rabi crops and at present there is no other
arrangement for this purpose. Considering the requirement
of Govt. of Maharashtra and keeping in view the objectives
of Govt. of Andhra Pradesh, an alternative solution was
suggested as under:
The capacity of the barrage should be reduced to the
bare minimum requirement of Govt. of Maharashtra, which
has been assessed by them as 1.09 TMC. From the Area
Capacity relationship submitted by the Govt. of
Maharashtra, it was observed that at an FRL of 334.20m,
the capacity of the Babhali barrage reservoir is 1.03812
TMC and at FRL 334.60 m, the capacity is 1.16893 TMC.
Therefore, if the FRL is kept at 334.50 m, the requirement of
Govt. of Maharashtra can be met and this will reduce the
height of the gates by 3.5 m. The gates will be closed only
after 28th October depending on the inflow and storage
condition of SRSP, to be mutually agreed by both the
concerned states.
50Page 51
Under the existing circumstances, this was discussed by the
Committee as a viable option for consideration for amicable
settlement of the issue. The officials of the Govt. of Andhra
Pradesh and the Govt. of Maharashtra expressed that they
would need approval of their respective governments in this
regard. The Chairman suggested that there may not be any
need for another meeting if the response is positive and the
recommendation could be submitted to the Hon’ble Union
Minister for Water Resources after the response from the
two states are received.”
68.2. The two states could not agree to any solution mutually
thereafter.
69. Andhra Pradesh has a grievance about meetings held on
26.04.2006 and 19.05.2006 as according to it the technical committee did
not examine the issues in terms of the grievance of Andhra Pradesh.
According to Andhra Pradesh, CWC in the Inter-state meetings held on
11.07.2005 and 05.10.2005 have categorically opined that without the
consent of Andhra Pradesh, Maharashtra is not entitled to construct the
Babhali barrage within the submergence area of the Pochampad project.
70. The issue of entitlement of Maharashtra under the agreement
dated 06.10.1975 has been examined in the earlier part of the judgment.
The question now is, even if we accept the interpretation placed upon the
agreement dated 06.10.1975 by Andhra Pradesh, should an injunction
follow against Maharashtra.
71. There is a sharp conflict over the subject matter of the dispute
between the two states. Andhra Pradesh does not trust Maharashtra and
seriously doubts that Maharashtra would honour what it says. In this
51Page 52
regard, Mr. K. Parasaran, learned senior counsel for Andhra Pradesh
brought to our notice the diverse acts of Maharashtra. During the pendency
of the suit, Mr. K. Parasaran submitted that Maharashtra resumed the
construction contrary to the directions given by CWC on 03.03.2006. In the
meeting of the Chief Ministers of Andhra Pradesh and Maharashtra held on
04.04.2006, it was decided that a technical committee shall go into the
details of various issues involved in Babhali Barrage project and till the
technical committee submits its report, further construction work will not be
done by Maharashtra. This was not adhered to by Maharashtra. On
26.04.2007, this Court by an interim order permitted Maharashtra to go
ahead with construction of the Babhali barrage but directed that it shall not
install the proposed 13 gates until further orders. It was clarified by this
Court that as the Maharashtra is permitted to proceed with construction at
its own risk, it will not claim any equity by reason of the construction being
carried on by it. Contrary to and in violation of the interim order of this
Court, Andhra Pradesh says that Maharashtra proceeded to install the
gates. It also installed 14 gates instead of proposed 13 gates. As the
Maharashtra went ahead with installation of gates (5 Nos.), Andhra
Pradesh was compelled to file contempt petition.
72. There may be some merit in the grievances of Andhra Pradesh
in this regard. Andhra Pradesh has suggested that to take care of its
concerns, it would be appropriate to permit it to provide 1.09 TMC to
Maharashtra from the water spread area of the Pochampad in the territory
52Page 53
of Maharashtra and direct Maharashtra to remove the installed gates. In
our view, if Andhra Pradesh’s apprehensions are addressed and its fears
are allayed by putting in place a supervisory mechanism in the form of a
committee, no substantial injury of serious magnitude would occasion to
Andhra Pradesh.
73. There are views and counter views on the post monsoon yield
data (October 29 to May 31). Andhra Pradesh, with reference to the post
monsoon yield data furnished by Maharashtra, submits that the available
yield to Maharashtra at Babhali barrage is in the range of 1537.20 MM3
(i.e. 54.29 TMC) to 77.39 MM3
(i.e. 2.73 TMC) in 75 per cent years of the
37 years series project. This enables Maharashtra to appropriate more
than 2.74 TMC in 74 per cent of years as water will be drawn from pondage
and replenished. During non-monsoon 7/8 months the water flows in
trickles and, therefore, water will be drawn for irrigation and replenish on a
regular basis even in remaining failure years of 25 per cent where nonmonsoon yield is less than 2.74 TMC or years where non-monsoon flows
are absolutely bare minimum, Maharashtra will be enabled to draw the
water from the intercepted storage of Pochampad or by reverse flow.
Andhra Pradesh emphasizes that Maharashtra has ignored 75 per cent
dependability of Pochampad project. After lowering the gates of Babhali
barrage on October 28, the non-monsoon flows into Pochampad are
obstructed during the 75 per cent of the years. Babhali barrage has the
53Page 54
effect of depleting Andhra Pradesh’s entitlement to the flow of water into its
project constructed at 75 per cent dependability.
74. 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.
Hence, the utilization cannot be more than 2.73 TMC. Maharashtra also
asserts that there is no occasion for it to utilize periodically 2.74 TMC from
time to time as the total flow after October 28 is only 2.73 TMC.
Maharashtra also says that there is no question of Maharashtra drawing
water of Pochampad reservoir in the reverse direction to the extent of 65
TMC. With regard to Balegaon barrage, Maharashtra asserts that the
capacity of Balegaon barrage is about 1.5 TMC out of which 0.6 TMC is the
intercepted storage of Babhali barrage and the remaining 0.9 TMC is
adjusted from the sanctioned utilization of Vishnupuri barrage project
upstream.
75. We have carefully considered the submissions of the two
states on post monsoon yield data (October 29 to May 31). The discharge
data actually has been observed by the CWC at Yelli gauging site for the
period 1968 to 2004, October 29 to May 31 which does indicate that on 75
per cent dependable flow, the total yield for this period is 2.733 TMC
54Page 55
(77.39 MM3
). We find no justifiable reason to discard the discharge data
observed by CWC for 36 years.
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.
77. In the minutes of 19.05.2006 of the technical committee
meeting convened by Chairman, CWC, it is stated that the project report of
the Babhali barrage has been prepared according to the standard
guidelines of the Commission. The project report of Babhali barrage which
has been got approved from CWC clearly indicates that the monthly yield
from November during post monsoon season is 2.64 TMC. The project
report also shows that there is no scope for Maharashtra for withdrawing
more than 2.73 TMC.
55Page 56
78. Maharashtra’s assertion that Babhali barrage will trap
maximum 0.6 TMC of the Pochampad storage is not a new plea raised for
the first time before this Court in the amended written statement. As a
matter of fact, before filing the suit by Andhra Pradesh, the said aspect was
highlighted by Maharashtra in the technical committee’s meeting convened
by Chairman, CWC on 26.04.2006.
The minutes of that meeting record,
“storage of Babhali barrage is well within the banks. The sill level and FRL
of Babhali barrage are 327 m and 338 m respectively and 13 gates of 15 m
x 11 m size are proposed to be installed. The Gross storage of Sri Ram
Sagar Project and that of Babhali barrage are 112 TMC and 2.74 TMC
respectively and there is a common storage of 0.60 TMC which is just
0.54% of the storage of SRSP. Command area of Babhali barrage is 7995
ha.”
79. Moreover, admittedly rainfall during monsoon months is the
major contribution to the Godavari river flows. Monsoon contributes about
90 per cent of the river flow. During monsoon months, the gates of Babhali
barrage shall remain lifted. Thus, river flow towards Pochampad dam
during monsoon shall not be affected in any manner whatsoever. There is
no diminution of flow during monsoon irrespective of construction of
Babhali barrage by Maharashtra.
The only difficulty is in respect of nonmonsoon season which contributes about 10 per cent of the flows that too
is not well defined and well spread. If this difficulty is taken care of,
virtually there is no injury to Andhra Pradesh much less substantial injury in
56Page 57
as much as the inhabitants of seven districts (Adilabad, Nizamabad,
Karimnagar, Warrangal, Nalgonda, Khammam and Medak) shall not be
deprived of water for drinking purpose and irrigation which is the main
concern of Andhra Pradesh.
On the other hand, if Babhali barrage is made
operational subject to certain conditions and some supervisory mechanism
is put in place to ensure that those conditions are strictly adhered to,
Maharashtra may be able to meet drinking water requirement of 58 villages
and three towns and also provide water for irrigation to 7995 hectares. The
matter needs to be viewed in this perspective as well.
80. We assume that apprehensions of Andhra Pradesh are bona
fide and genuine. However, in our view, these apprehensions can be
largely overcome and addressed. It is pertinent to notice that though with
regard to present subject matter, Andhra Pradesh has taken a very rigid
and hard stance but with regard to Pranhita project (Dr. B.R. Ambedkar
Pranhita Chevella Sujala Sravanti Project) Andhra Pradesh and
Maharashtra have adopted a very collaborative position to ensure efficient,
speedy and economical investigation and execution of this project. The
two Chief Ministers as recently as May 2012 have entered into an
agreement for constitution of Inter-State Board to take charge of and deal
with all the matters relating to all relevant items as stipulated in the 1979
award and 1980 further award with regard to Pranhita river. There is no
reason why supervisory committee cannot oversee the compliance of
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commitments which Maharashtra had made to this Court by way of
pleadings and also in the course of hearing.
81. In view of the foregoing discussion, we may conclude our
findings as follows :
(i) Under the agreement dated 06.10.1975 and the 1979
award of the Tribunal the utilization of 60 TMC water by
Maharashtra for the new projects below Paithan dam site on
the Godavari and below Siddheswar dam site on the Purna
and below Nizamsagar dam site on the Manjra and up to
Pochampad dam site on the Godavari is not confined to
flowing waters alone in the territory of Maharashtra.
(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.
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(iii) The commitment of Maharashtra that the Babhali
barrage project requires 2.74 TMC of water out of the
allocation of 60 TMC for new projects under the agreement of
which only 0.6 TMC is from the common submergence of
Pochampad reservoir and Babhali barrage if accepted and its
compliance is ensured, it may be conveniently held that
Babhali barrage would not enable Maharashtra to draw and
utilize 65 TMC of water from the storage of Pochampad project
as alleged by Andhra Pradesh.
(iv) Alternatively, even if the interpretation placed upon the
agreement dated 06.10.1975 by Andhra Pradesh is accepted
that utilization of waters to the extent of 60 TMC for new
projects by Maharashtra from below the three dam sites
mentioned in Clause II(i) up to Pochampad dam site can be
only from water flowing through the river from the catchment
area and not from the pondage/water spread area of
Pochampad dam, on the basis of facts which have come on
record, 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.
82. In light of the above, we hold that Andhra Pradesh is not
entitled to the reliefs, as prayed for, in the suit.
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83. However, a three member supervisory committee is
constituted. The committee shall have one representative from the Central
Water Commission and one representative each from the two states,
Andhra Pradesh and Maharashtra. The representative of Central Water
Commission shall be Chairman of the committee. The Committee shall
select the place for its office which shall be provided by Maharashtra.
Maharashtra shall bear the entire expenditure of the Committee.
The
powers and functions of the supervisory committee shall be as follows:
(i) The committee shall surprise the operation of the Babhali
barrage.
(ii) The committee shall ensure that;
(a) Maharashtra maintains Babhali barrage storage
capacity of 2.74 TMC of water out of the allocation of 60 TMC
given to Maharashtra for new projects under the agreement
dated 06.10.1975.
(b) 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.
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(c) During the non-monsoon season i.e., from October 29 till
the end of June next year, the quantity of water which
Maharashtra utilizes for Babhali barrage does not exceed
2.74 TMC of which only 0.6 TMC forms the common
submergence of Pochampad reservoir and Babhali barrage.
(d) Maharashtra does not periodically utilize 2.74 TMC from
time to time.
(e) Maharashtra releases 0.6 TMC of water to Andhra
Pradesh on 1st March every year.
(f) Maharashtra maintains the capacity of Balegaon
barrage to 1.5 TMC. Out of this 0.9 TMC is adjusted from
sanctioned utilization of Vishnupuri project upstream and 0.6
TMC remains the intercepted storage of Babhali barrage.
84. Suit and IA Nos. 13 and 15 are disposed of as above with no
orders as to costs.
W.P.(C) No. 134/2006, W.P.(C) No. 210/2007 AND W.P.(C) No. 207/2007
85. We have heard Mr. A.K. Ganguli, learned senior counsel for
the petitioners in W.P.(C) No. 207 of 2007. We have also considered the
written submissions filed in W.P.(C) Nos. 207 and 210 of 2007.
However,
we do not find it necessary to consider these writ petitions on merits in view
of consideration and decision in the original suit filed by Andhra Pradesh
against Maharashtra.
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86. These Writ Petitions and IA Nos. 1 and 3 in Writ Petition © No.
134 of 2006, IA Nos. 1 and 2 in Writ Petition © No. 210 of 2007 and IA No.
1 in Writ Petition © No. 207 of 2007 are disposed of accordingly.
Contempt Petition (C) No. 142 of 2009 in Original Suit No. 1 of 2006
87. In view of our judgment given in Original Suit, we are not
inclined to consider the Contempt Petition on merits. It is disposed of
accordingly.
…………………….J.
(R.M. Lodha)
…………………….J.
(T.S. Thakur)
.…………………….J.
(Anil R. Dave)
NEW DELHI
FEBRUARY 28, 2013.
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