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

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

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2957 OF 2013
KACHCHH JAL SANKAT NIVARAN SAMITI & ORS. ..APPELLANTS

VERSUS

STATE OF GUJARAT & ANR. …RESPONDENTS

 

JUDGMENT

 

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

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

The appellants are aggrieved by aforesaid meager allocation of water
and, according to them, the State Government has not distributed the water
keeping in mind the Directive Principles of the State Policy as enshrined
under Article 39(b) of the Constitution of India which inter alia obliges
the State to make the policy in such a way that the material resources of
the community are so distributed as best to subserve the common good.
Appellant further contended that by meager allocation of water, the State
Government also did not carry out its obligation as mandated under Article
38(2) of the Constitution which casts a duty on it to strive to minimise
the inequalities in income and make an endeavour to eliminate inequalities
in the status, facilities and opportunity amongst individuals and groups of
people residing in different areas of the State. The plea of the State
Government is that out of the limited water allocated to it by the
Tribunal, it had made the best use of that. It has also been pointed out
that the allocation complained of is not static and shall vary from time to
time and the quantity of water allocated for Kutch District may increase.
It has also been averred that while making allocation to Kutch District,
the State Government has kept in view the interest of all concerned and
also the factors relevant for the purpose. According to the respondent-
State Government, it laid a claim for 20.73 MAF of water out of the total
demand of 22.02 MAF water before the Tribunal which included 6.57 MAF for
Kutch, but only 9.00 MAF water was allocated and the award of the Tribunal
having been approved by the Supreme Court, the State Government has to
distribute the limited water allocated to it. It has also been pointed out
that the allocation made for the District of Kutch has been increased in
later years.
The High Court has analysed in detail the pleas raised by the parties
and declined to interfere with the same, inter alia, on the grounds that
the decision involved balance of competing claims of the natural resources
and there is no judicially manageable standard for adjudication for
allocation of water in favour of any region within the State. While doing
so, the High Court observed as follows:
“In our opinion, the above observations would answer the
submissions advanced by the learned counsel of the petitioners.
We are not here to weigh the pros and cons of the policy or
scrutinize it and test the degree of its beneficial or equitable
disposition for the purpose of varying, modifying or annulling
it, unless it is arbitrary or violative of any constitutional,
statutory or any other provision of law. Needless to say that
the petitioners have not challenged these decisions on the
ground that as they are arbitrary nor have they pointed out that
they are unconstitutional or violative of statutory or any other
provisions of law. The Government, in the instant case, decided
to accept the award of the NWDT which is based on the expert
opinion and now we are asked to test the utility, beneficial
effect etc. of the policy on the basis of the affidavit filed
before us……”

 
The High Court further observed that the issue raised requires
determination of the choice of priorities and it is not subject to judicial
review. The High Court, in this connection, observed as follows:
“29. Apart from that, determining the choice of priorities
and formulating perspective thereof is a matter of policy and
it is not within our domain to interfere with the sole
question of efficacy or otherwise of such policy unless the
same is “vitiated” of in violation of any provisions or the
statute or Constitution of India.”

 

 
Mr. Altaf Ahmed, Senior Counsel appears on behalf of the appellants
and takes a stand that the appellants do not seek determination of
appropriate quantity of water for the District of Kutch but the plea is
that the policy of distribution is based on irrelevant consideration and,
therefore, subject to judicial review. According to him, it lacks
transparency and exhibits extreme prejudice and discrimination against
Kutch District. According to him, while making the policy, the relevant
factors were ignored and irrelevant and extraneous factors have been taken
into account. He points out that the State of Gujarat while claiming large
share of water from river Narmada before the Tribunal relied heavily upon
the need of Kutch District to get more water but after the award, did not
stick to its stand after the allocation was made by the Tribunal. He has
brought to our notice the comparative data regarding allocation of water to
the various districts and points out that the same indicates discriminatory
allocation of water to the Kutch area. Mr. Ahmed draws our attention to
Article 39(b) of the Constitution of India and submits that the State while
dealing with the distribution of water did not respect the constitutional
philosophy that the State shall distribute the material resources as best
to subserve “common good”. It has also been contended that the natural
resources are held by the Government as trustee for the benefit of the
citizens and, therefore, the State Government is required to manage and
utilize them in the best interest of the society. While making
distribution, according to Mr. Ahmed, the State Government totally lost
sight of Article 38(2) of the Constitution which stipulates that the State
shall endeavor to minimize inequalities in the facilities and opportunities
amongst people.
On account of all these infirmities, the impugned policy deserves to
be looked into by this Court in exercise of its power of judicial review,
contends Mr.Ahmed. Reliance has been placed in support of aforementioned
contention to a decision of this Court in the case of Tata Cellular vs.
Union of India (1994)6 SCC 651. Our attention has been drawn to the
following passage from the said judgment:

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

 

 
Mr. Shyam Diwan, Senior Counsel representing the State of Gujarat
states that the issue regarding allocation of water to the districts of
Gujarat is a matter of policy and the scope of judicial review in this
regard is narrow. According to him, the policy has been framed after
consulting technical experts in the best interest of the people and,
therefore, does not call for any interference by this Court in exercise of
its power of judicial review.
We have given our most anxious consideration to the rival
submissions and we find substance in the submission of Mr. Diwan. We are
conscious of the fact that there is wide separation of powers between the
different limbs of the State and, therefore, it is expected of this Court
to exercise judicial restraint and not encroach upon the executive or
legislative domain. What the appellants in substance are asking this Court
to do is to conduct a comparative study and hold that the policy of
distribution of water is bad. We are afraid, we do not have the expertise
or wisdom to analyse the same. It entails intricate economic choices and
though this Court tends to believe that it is expert of experts but this
principle has inherent limitation. True it is that the court is entitled to
analyse the legal validity of the different means of distribution but it
cannot and will not term a particular policy as fairer than the other. We
are of the opinion that the matters affecting the policy and requiring
technical expertise be better left to the decision of those who are
entrusted and qualified to address the same. This Court shall step in only
when it finds that the policy is inconsistent with the Constitutional laws
or arbitrary or irrational.
Candidly speaking, we do not have the expertise to lay down policy
for distribution of water within the State. It involves collection of
various data which is variable and many a times policy formulated will have
political overtones. It may require a political decision with which the
Court has no concern so long it is within the Constitutional limits. Even
if we assume that this Court has the expertise, it will not encroach upon
the field earmarked for the executive. If the policy of the Government, in
the opinion of the sovereign, is unreasonable, the remedy is to disapprove
the same during election. In respect of policy, the Court has very limited
jurisdiction. A dispute, in our opinion, shall not be appropriate for
adjudication by this Court when it involves multiple variable and
interlocking factors, decision on each of which has bearing on others.
While disposing of an interlocutory application in this very appeal by
order dated 22nd of July, 2011, this Court observed as follows:
“We are of the opinion that the prayer for allocation of
adequate water in Kuchchh district is not one which can be a
matter of judicial review. It is for the executive
authorities to look into this matter. As held by this Court
in Divisional Manager, Aravali Golf Club & Anr. vs. Chander
Hass & Anr. (2008) 1 SCC 683, there must be judicial
restraint in such matters.”

 

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

 

 
The plea of the appellants that those factors which were projected
by the State Government itself before the Tribunal are not being adhered
to and its action is arbitrary, does not appeal to us. The State
Government also projected the need of Kutch area before the Tribunal but
the same did not appeal to it. In fact, the award of the Tribunal has got
the seal of approval of this Court and the State Government having
accepted the decision of the Tribunal, its action cannot be termed as
arbitrary only on the ground that all those factors were not considered
while making allocation to the district. As regards the complaint of the
appellants that while making distribution, the State Government did not
take into account the policy underlying Article 39(b) of the Constitution,
we must observe that the distribution of material resources is to be
effected in the manner to subserve the “common good” and this expression
is not to be confined for the Kutch District only but to the other regions
of the State also.
The complaint of the appellants of non-adherence to the mandate of
Article 38(2) of the Constitution is also misconceived. The State, in our
opinion, is to strive to minimize the inequalities in income and endeavour
to eliminate inequalities in status, facilities and opportunities not only
amongst individuals but also amongst group of people residing in different
parts or engaged in different vocations. But this does not mean that for
achieving that the State Government has to apply it on the basis of the
number of people residing in different parts only. Other factors just
cannot be forgotten.

 
We are in total agreement with the conclusion and reasoning given by
the High Court and we reiterate that there being no judicially manageable
standards for allocation of water, any interference by this Court would
mean interference with the day-to-day functioning of the State Government.
In view of separation of powers, this Court cannot charter the said path.
In the result, we do not find any merit in this appeal which is
dismissed accordingly but without any order as to costs.
………………………………………………………………J
(CHANDRAMAULI
KR. PRASAD)

 

 
………..……….………………………………..J
(V.GOPALA GOWDA)
NEW DELHI,
JULY 15, 2013.

———————–
20

 

 

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