Jharkhand High Court
Nishikant Dubey Son Of Sri Radheshyam ... vs Union Of India Through The Secretary on 24 April, 2023
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra, Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(PIL) No. 5147 of 2018
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Nishikant Dubey son of Sri Radheshyam Dubey, Resident of 101,
Ankur Apartment, Dr. Rajendra Prasad Road, PO GPO, PS Kotwali,
Dist: Bhagalpur, Bihar, presently Member of Parliament, Godda Lok
Sabha Constituency, Godda.
... ... Petitioner
Versus
1. Union of India through the Secretary, Ministry of Water Resources,
River Development & Ganga Rejuvenation, Govt. of India, New Delhi.
2. State of Jharkhand through its Chief Secretary, Govt. of
Jharkhand, Project Bhawan, Dhurwa, Ranchi.
3. Principal Secretary, Water Resource Department, Govt. of
Jharkhand, Nepal House, Doranda, Ranchi.
4. State of West Bengal through the Chief Secretary, Govt. of West
Bengal, Nabanna (13th Floor), 325, Sarat Chatterjee Road, Shibpur,
Howrah, West Bengal
... ... Respondents
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CORAM : SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Petitioner : Mr. Diwakar Upadhyay, Advocate For the Resp.-State: Mr Piyush Chitresh, A.C to A.G For the Resp.-UOI: Mr. Prashant Pallav, D.S.G.I. Ms. Shivani Jaluka, A.C to D.S.G.I For the Resp.-State of West Bengal: Mr. T.M. Siddiqui, Advocate Mr. Debasish Ghosh, Advocate Mr. Shadab Eqbal, Advocate
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15/ 24.04.2023 Upon hearing the learned counsel for the parties, this Court passed the following, (Per Sanjaya Kumar Mishra, C.J.)
1. By filing this public interest litigation, petitioner has prayed for three following reliefs:
(i) For issuance of an appropriate writ(s)/ order(s)/ direction (s) in the nature of 'Mandamus' commanding upon the Respondents to entrust the entire administrative and utility control of the Massanjore Dam to the State of Jharkhand, as the Massanjore Dam is located within the territory of the State of Jharkhand and moreover since the Massanjore Dam is built upon the Mayurakshi River which originates from the district of Deoghar, falling within the State of Jharkhand.
(ii) For further issuance of an appropriate writ(s)/ order(s)/ direction(s) in the nature of 'Mandamus' -: 2 :- commanding upon the Respondents to ensure that the water for irrigation, drinking water from the Massanjore Dam is adequately provided to the districts of Dumka, Pakur, Godda and Deoghar, whereby the main occupation of the people is cultivation/agriculture.
(iii) For further issuance of an appropriate writ(s)/ Order(s)/direction(s) in the nature of 'Mandamus' commanding upon the Respondents to ensure that the entire electricity produced from the Massanjore Hydroelectricity Project shall be utilized solely by the State of Jharkhand.
2. In course of hearing learned counsel for the Respondent State of West Bengal would raise objection on maintainability of this Writ Petition in the nature of Public Interest Litigation in view of Section 3 and Section 11 of the Inter State River Water Disputes Act, 1956.
Section 3 provides for complaints by State Governments as to water disputes if it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by- (a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State ; or (b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, the State government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a Tribunal for adjudication.
Section 11 provides a bar of entertaining an application regarding the water dispute by the Supreme Court and other courts. Section 11 provides that notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under the said Act.
3. In interpreting these provisions the Hon'ble Supreme Court in the case of Atma Linga Reddy & Others Versus Union of India & Others -: 3 :- reported in (2008) 7 SCC 788 has held that Article 262 of the Constitution deals with adjudication of dispute relating to waters of inter-State rivers or river valleys. It is an enabling provision and empowers the Parliament to enact a law providing for adjudication of such disputes or complaints, excluding the jurisdiction of all courts including the Supreme Court. Hon'ble Supreme Court further held that in exercise of power under Article 262 of the Constitution, the Parliament enacted the Inter-State River Water Disputes Act, 1956. In the light of the scheme as envisaged by the Constitution as also by Parliament under the 1956 Act in connection with the water disputes between States, it is clear that such disputes cannot be made the subject-matter of the petition either in a High Court under Article 226 or in the Supreme Court under Article 32 of the Constitution. The Hon'ble Supreme Court further clarified that Article 131 of the Constitution which enables the Central Government or a State Government to institute a suit in the Supreme Court on its Original Side in certain cases also cannot be invoked in inter-State water disputes in view of Section 11 of the 1956 Act. The provisions of Article 131 of the Constitution have to be construed harmoniously subject to the provisions of Article 262 of the Constitution. The inter-State river water dispute is covered by Article 262 of the Constitution and should be dealt with in accordance with the provisions of the 1956 Act and it cannot be challenged in any court including the Supreme Court.
4. Learned counsel appearing for the State of West Bengal would draw attention of this Court to the Minutes of the 25th Meeting of the Eastern Zonal Council held on 17.12.2022 at Kolkata, specifically referring to Page No. 15 of the Minutes wherein the Chief Secretary, Jharkhand has mentioned that the main issue between the two governments is sharing of water and not the joint control of the dam. He stated that Jharkhand is getting only 3% of the water from Masanjore Dam.
5. The documents filed today by learned counsel representing the State of West Bengal would form part of the record.
6. Thus, it is clear that though the petitioner in this case has prayed for absolute control of the Dam to be vested in the State of Jharkhand, the central issue between the two States is regarding sharing of water. In fact in the supplementary affidavit dated 18.12.2021, the State of Jharkhand has specifically mentioned that they have already moved the Central Government -: 4 :- for establishment of a Tribunal and for redressal of the grievance, but, no instruction has been received by learned D.S.G.I. in this regard.
7. In that view of the matter, this Writ Petition in the nature of Public Interest Litigation is not maintainable, and the same is disposed of. However, the Chief Secretary, State of Jharkhand shall take up the issue of establishment of the Tribunal in terms of Section 3 and 11 of the Act of 1956. It is also directed that if any such request is made, the Union of India shall consider the same as expeditiously as possible.
8. This Writ Petition in the nature of Public Interest Litigation is disposed of. There shall be no order as to costs. Urgent certified copy of this order shall be issued as per the Rules.
(Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.) Kumar/A Mohanty/Cp-02