NaMo, Announce National Water Grid Authority: Centre-piece interlinking of rivers on fast track -- Uma Bharti gets unanimous support of MPs

Delivering a 63-page landmark judgement delivered on 27 Feb. 2012, Supreme Court issued a mandamus to the Centre and State Governments to constitute a Special Committee for Inter-linking of Rivers. 

SUPREME COURT’S LANDMARK JUDGMENT ON INTERLINKING OF RIVERS

In the last quarter of 2011, I undertook a 40-day rath yatra to highlight three issues: corruption, inflation and black money.

While passing through the desert region of Shekhawati in Rajasthan, some one mentioned to me that when the N.D.A. regime was in office and Prime Minister Vajpayee had spoken about interlinking of rivers farmers of Rajasthan had felt greatly enthused by the move.

Indeed, whenever in my speeches I referred to this NDA proposal for which a Task Force headed by Shiv Sena leader Suresh Prabhu had been set up, I found the audience very responsive.

In 2002, A PIL Petition was filed in the Supreme Court that there was need to conserve water and properly utilize available resources by inter linking rivers like Ganga, Kaveri, Vaigai and Tambaravani. 

A 3-Judge Bench of the Supreme Court headed by Chief Justice S.H. Kapadia delivered a 63-page judgment on 27^th February 2012, in which the operative part described the judgment as a mandamus to the Central and State Governments concerned, and issued the following directions :

64. Realizing our limitations, we would finally dispose of this Public Interest Litigation with the following directions :

(I)      We direct the Union of India and particularly the Ministry of Water Resources, Government of India, to forthwith constitute a Committee to be called a “Special Committee for Inter-linking of Rivers’ (hereinafter referred as the Committee’) of which, the following shall be the Members:

a)     The Hon’ble Minister for Water Resources

b)     Secretary, Ministry for Water Resources

c)      Secretary, Ministry of Environment and Forests

d)     Chairman, Central Water Commission

e)     Member-Secretary, National Water Development Authority

f)        Four experts to be nominated, one each from the following

Ministries/bodies:

I)        One Expert from the Ministry of Water Resources

II)       One Expert from the Ministry of Finance.

III)     One expert from the Planning Commission

IV)   One Expert from the Ministry of Environment & Forests

g)     Minister for Water and/or Irrigation from each of the concurring States, with the Principal Secretary of the Concerned Department of the same State.

h)      The Chief Secretary or his nominee not below the rank of the Principal Secretary of the concerned Department in case of any other State involved directly or indirectly in the water linking river project.

i)        Two social activists to be nominated by each of the concerned Ministries.

j)        Mr. Ranjit Kumar (Amicus Curiae).

II)                   The Committee shall meet, at least, once in two months and shall maintain records of its discussion and the Minutes.

III)                 In the absence of any person from such meeting, irrespective of his/her status, the meeting shall not be adjourned. If the Hon’ble Minister for Water Resources is not available, the Secretary, Ministry of Water Resources, Government of India, shall preside over the Meeting.

IV)               The Committee would be entitled to constitute such sub-committees, as it may deem necessary for the purposes of carrying on the objects of the Inter-Linking of River Program, on such terms and conditions as it may deem proper.

V)                The Committee shall submit a bi-annual report to the Cabinet of the Government of India placing before it the status-cum-progress report as well as all the decisions required to be taken in relation to all matters communicated therewith. The Cabinet shall take all final and appropriate decisions, in the interest of the countries as expeditionly as possible and preferably within thirty days from the date the matters are first placed before it for consideration.

VI)               All the reports of the expert bodies as well as the status reports filed before this Court during the pendency of this petition, shall be placed before the Committee for its consideration. Upon due analysis of the Reports and expert opinions, the Committee shall prepare its plans for implementation of the project.

VII)             The plans so prepared shall have different phases, directly relatable to the planning, implementation, construction, execution and completion of the project.

VIII)            We are informed that large sums have been spent on preparation of initial and detailed project reports of the project ‘Ken-Betwa Project’.  The DPR is now ready. The States of Madhya Pradesh and Uttar Pradesh and also the Central Government had already given their approval and consent. The clarifications sought will be discussed by the Committee.  We would direct the Committee to take up this project for implementation at the first instance itself. 

IX)               Keeping in view the expert reports, we have no hesitation in observing and directing that time is a very material factor in the effective execution of the Interlinking of Rivers project. As pointed out in the Report by NCAER and by the Standing Committee, the delay has adversely affected the financial benefits that could have accrued to the concerned parties and the people at large and is in fact now putting a financial strain on all concerned.

X)                It is directed that the Committee shall take firm steps and fix a definite timeframe to lay down the guidelines for completion of feasibility reports or other reports and shall ensure that completion of projects so that the benefits accrue within reasonable time and cost.

XI)               At the initial stages, this program may not involve those States which have sufficient water and are not substantially involved in any inter-linking of river programme and the projects can be completed without their effective participation.

XII)             However, the Committee may involve any State for effective completion of the programme at any subsequent stage.

XIII)            There are projects where the paper work has been going for the last ten years and at substantial cost to the public exchequer. Therefore, we direct the Central and the State Governments to participate in the program and render all financial, administrative and executive help to complete these projects more effectively.

XIV)         It is evident from the record that the Reports submitted by the Task Force have not been acted upon. Thus, the entire effort put in by the Task Force has practically been of no use to the concerned governments, much less the public. The Task Force has now been wound up. Let the reports of the Task Force also be placed before the Committee which shall, without fail, take due note of the suggestions made therein and take decisions as to how the same are to be implemented for the benefit of the public at large.

XV)           The Committee constituted under this order shall be responsible for carrying out the inter-linking program. Its decisions shall take precedence over all administrative bodies created under the orders of this Court or otherwise.

XVI)         We grant liberty to the learned Amicus Curiae to file contempt petition in this Court, in the event of default or non-compliance of the directions contained in this order.

65)  We would fail in our duty if we do not place on record the appreciation for the valuable and able assistance rendered by the learned Amicus Curiae and all other senior counsel and assisting counsel appearing in the present PIL”.

***

If any one were to ask me which were the main achievements of Vajpayeeji’s NDA Government, I would identify three :

Firstly, it established its sincerity in wanting normalcy and peace with Pakistan, but the Vajpayee Government simultaneously made it clear that its attitude towards Pakistan’s hostile military designs, as also towards cross border terrorism would be of zero-tolerance. Within two months of assuming power, therefore, the NDA Government made India a nuclear power.

Secondly, the NDA Government laid a firm foundation for a network of highways and rural roads, for the entire country

Thirdly, the NDA Government not only drew up an ambitious programme for interlinking of major rivers but spared a senior minister Suresh Prabhu to head a Task Force devoted exclusively to this work. Suresh Prabhu met me recently and give me a detailed account of his painstaking exertions in pursuance of this task. He had held more than 5000 small and big meetings in all states of the country. Besides, he set up a committee of finance experts and eminent bankers, led by ICICI Chairman K.V. Kamath which presented very innovative and forward looking ideas for financing this Interlinking of Rivers project. 

Suresh Prabhu told me that this group of experts were confident that they would be able to raise at least Rs.5,60,000 crores worth investment for the interlinking scheme.

Yet another point Suresh Prabhu stressed was that ISRO under the chairmanship of Dr. Kasturi Rangan had agreed to use remote sensing, satellite imagery, etc. for effective project planning and monitoring.

***        

Three months have now elapsed since the Supreme Court delivered this judgment. And yet the Special Committee the Court had wanted to be constituted has not been set up. One wonders if the Amicus Curiae, Shri Ranjit Kumar, who has been richly complimented by the Supreme Court for his contribution to the case, would heed the specific advice of the Court, and move a contempt petition against the UPA Government for its ‘default’.

L.K. ADVANI

New Delhi

May 29, 2012

                                               REPORTABLE
            IN THE SUPREME COURT OF INDIA
              CIVIL ORIGINAL JURISDICTION


         WRIT PETITION (CIVIL) NO. 512 OF 2002


"IN RE : NETWORKING OF RIVERS"


                            WITH


         WRIT PETITION (CIVIL) NO. 668 OF 2002


                      JUDGMENT


Swatanter Kumar, J.



1.      Nearly ten years back, the petitioner in Writ Petition

(Civil) No. 668 of 2002, a practicing advocate, instituted the

petition based on some study that there was a need to

conserve water and properly utilize the available resources.

Thus, the present petition has been instituted with the

following prayers:-


"a. Issue an appropriate writ order or direction,
         more particularly a writ in the nature of
         Mandamus directing the respondent no. 1 to
         take appropriate steps/action to nationalize all
         the rivers in the country.
                                                                    2

     b. Issue an appropriate writ order or direction,
        more particularly a writ in the nature of
        Mandamus, directing the respondent No. 1 to
        take appropriate steps/action to inter link the
        rivers in the southern peninsula namely, Ganga,
        Kaveri, Vaigai and Tambaravani.



     c.   Issue an appropriate writ order or direction in
          the nature of mandamus directing the
          respondents to formulate a scheme whereby the
          water from the west flowing rivers could be
          channelized and equitably distributed."



2.        The above directions were sought by the petitioner

against the Central Government as well as against various

State Governments, for effective management of the water

resources in the country by nationalization and inter-linking

of rivers from Ganga - Cauveri, Vaigai-Tambaravarmi up to

Cape Kumari.      According to him, as early as in 1834, Sir

Arthur Cotton, who had constructed the Godavari and

Krishna dams, suggested a plan called the `Arthur Cotton

Scheme' to link the Ganga and Cauveri rivers. In 1930, Sir

C.P. Ramaswamy Aiyar also suggested and supported such a

scheme.     Thereafter, various political leaders of the country

have supported the cause; but no such schemes have actually

been implemented.      It is the case of the petitioner that the
                                                                        3

Inter-State Water Disputes Act, 1956 (for short `the Act') and

the River Boards Act, 1956 were enacted by the Parliament

under Article 262 read with Entry 56 of List-I of the Seventh

Schedule to the Constitution of India, 1950 (hereafter, `the

Constitution').    Due to reluctance of water-rich States, the

National Water Development Agency (hereafter, `NWDA') has

not been allowed to undertake detailed survey and it is argued

that only by nationalization of the rivers, by the Government of

India, this problem can be resolved to some extent.              The

petitioner had filed a writ before the High Court of Judicature

at Madras, being Writ Petition No. 6207 of 1983, praying for

various reliefs.   This Writ Petition was disposed of without

any effective orders by the High Court.      Persisting with his

effort, the petitioner earlier filed writ petitions before this

Court, being Writ Petition (C) No. 75 of 1998 and Writ Petition

(C) No. 15 of 1999, praying inter alia for nationalized

navigation and inter-linking of all the rivers in the country.

3.      We must notice, to put the records straight, that on

29th September, 1994, a Bench of this Court took suo motu

notice of a write-up that had appeared in the Hindustan Times

newspaper, dated 18th July, 1994, titled "And quiet flows the

maili Yamuna".     Notice was issued to the Central Pollution
                                                                     4

Control Board, Municipal Corporation of Delhi, Irrigation and

Flood Department of the Government of India, National

Capital Territory of Delhi and the Delhi Administration. Since

then, the writ petition is being continuously monitored by this

Court, till date. During the pendency of this writ petition, I.A.

No. 27 came to be filed, wherein the learned Amicus Curiae in

that case referred to the address of Dr. A.P.J. Abdul Kalam,

the then President of India, on the eve of the Independence

Day.    This, inter alia, related to creating a network between

various rivers in the country, with a view to deal with the

paradoxical situation of floods in one part of the country and

droughts in other parts. In other words, it related to the inter-

linking of rivers and taking of other water management

measures.      On 16th September, 2002, this Court, while

considering the said I.A., directed that the application be

treated as an independent writ petition and issued notice to

the various State Governments as well as the Attorney General

for India and passed the following order:-

"Based on the speech of the President on the
       Independence Day Eve relating to the need of
       networking of the rivers because of the paradoxical
       phenomenon of flood in one part of the country while
       some other parts face drought at the same time, the
       present application is filed.         It will be more
       appropriate to treat to treat it as independent Public
                                                                      5

     Interest Litigation with the cause title "IN RE :
     NETWORKING OF RIVERS -- v. ---" Amended cause
     title be filed within a week.
     Issue notice returnable on 30th September, 2002 to
     the respondents as well as to the Attorney General.
     Serve notice on        the   standing   counsel   of   the
     respective States.
     Dasti service, in addition, is permitted."



4.        This is how I.A. No. 27 in Writ Petition (Civil) No. 725

of 1994 was converted into Writ Petition (Civil) No. 512 of

2002. The Writ Petition (Civil) No. 512 of 2002 was taken up

for hearing and notice was issued to all the States, inviting

affidavits regarding their stance on the issue of networking of

rivers.


5.        In view of the above order, the petitioner in Writ

Petition (Civil) No. 668 of 2002 withdrew Writ Petition (C) No.

75 of 1998 as well as Writ Petition (C) 15 of 1999, which leave

was granted by this Court.


6.        As already discussed above, the petitioner had filed

Writ Petition (Civil) No. 668 of 2002 with somewhat similar

prayers as contained in I.A. No. 27.    In that writ petition, the

petitioner has averred that no prayer with regard to inter

linking of rivers covering the southern part of the Peninsular
                                                                     6

Region had been claimed and it was also his contention that

the southern part was most drought prone and had been

witnessing more inter-state water disputes.       Thus, he had

filed Writ Petition (Civil) No. 668 of 2002 and prayers made

therein were liable to be allowed.


7.      In the present case, we are concerned with Writ

Petition (C) No.668 of 2002, Writ Petition (C) No. 512 of 2002

as well as the I.A.s and the contempt petitions filed in these

two petitions. Accordingly, this order shall dispose of all these

matters but we make it clear that presently, we are not dealing

with Writ Petition (C) No. 725 of 1994.


8.      It has also been averred by the petitioners and the

intervenors in these petitions that the need to conserve water

resources and assuring their optimum consumption can be

seen from the steps taken in this regard, not only by the

developed countries but also by developing and under-

developed countries.     The Government of India has always

shown considerable concern regarding the management of

water resources in the country and had framed, for this

purpose, the National Water Policy which is being updated on

a yearly basis. The National Water Policy seeks to make
                                                                      7

available water supply to those areas which face shortages.

This aspect of the matter could be effectively dealt with, only if

the various rivers in the country are linked and are

nationalized.   This has been a matter of public debate and

discussion for a considerable time and still continues to be so,

without showing any reflection of ground reality.


9.      The Ministry of Irrigation, along with the Central

Water Commission, had formulated in the year 1980 a

National Perspective Plan (NPP) for optimum utilization of

water resources in the country which envisaged inter-basin

transfer of water from water-surplus to water-deficit areas.

Apart from diverting water from rivers which are surplus, to

deficit areas, the river linking plan in its ultimate stage of

development will also enable flood moderation.            It was

comprised of two components: Peninsular Rivers Development

and Himalayan Rivers Development. The first involved major

inter-linking of the river systems and the latter envisaged the

construction of storage reservoirs on the principal tributaries

of rivers Ganga and Brahmaputra in India, Bhutan and Nepal.

This was to help transfer surplus flows of the eastern

tributaries of the Ganga to the West, apart from linking the
                                                                     8

main Brahmaputra and its tributaries with the Ganga and

Mahanadi rivers. The scheme is divided into four major parts:


  i)     Interlinking of Mahanadi-Godavari-Krishna-Cauvery

         rivers and building storages at potential sites in these

         basins.


  ii)    Interlinking of West flowing rivers north of Bombay

         and south of Tapi.


  iii)   Interlinking of rivers Ken & Chambal.


  iv)    Diversion of other west flowing rivers from Kerala.


10.      The petitioners have also made several suggestions

which have been appreciated by the competent authorities on

consideration. It is emphasized that the cost is negligible when

compared to the potential benefits which may be bestowed on

the nation.        The petitioners rely upon Article 262 of the

Constitution, read along with Entry 17, List II and Entry 56 of

List I of the Seventh Schedule to the Constitution to

substantiate their submissions. Finally, the petitioners submit

that the preservation of water resources is a part of the right

to life and livelihood, enshrined in Article 21 of the

Constitution and that the Central Government should take
                                                                        9

immediate and urgent steps to nationalize the rivers, so that

equitable and proper distribution of water can be ensured for

the betterment of the population.           According to them, the

Central    Government     should     also    adopt   all   necessary

measures, both scientifically and naturally, to increase the

usable water resources and to preserve whatever resources

the Union of India has already been naturally gifted with.


11.       As a result and because of the inaction on the part of

the Central Government and the State Governments, it is

submitted that grant of the reliefs as prayed for in the writ

petition would be in consonance with the constitutional spirit

and in the larger public interest.


12.       The learned Amicus Curiae, who had been pursuing

this public cause for a number of years, in furtherance to the

request of this Court, has also submitted a detailed note with

regard to the background and summary of the proceedings in

these petitions.

13.       As per the learned Amicus Curiae, on 14th August,

2002, the then President of India, Dr. APJ Abdul Kalam, in his

address to the nation on the eve of Independence Day, had

observed that the need of the hour was the creation of a Water
                                                                    10

Mission which, inter alia, would look into the question of

networking of rivers with a view to deal with the paradoxical

situation of floods in one part of the country and drought in

the other.   Based on this and as afore-recorded, a notice was

issued, on 16th September, 2002, to the States and the

Attorney General for India as respondents. In response to the

said notice, none of the States or Union Territories, except the

State of Tamil Nadu, had filed affidavits supporting/opposing

the prayers made in the writ petition. The time for filing of

affidavits was again extended up to 30th September, 2002, but

no further affidavits were received by that time.

14.     The learned then Attorney General for India, on behalf

of the Union of India, stated that the Government had

accepted the concept of interlinking of rivers and a High

Powered Task Force would be formed.       Therefore, this Court,

vide Order dated 31st October, 2002, recorded that there is in-

principle consensus amongst all States to go ahead with the

project of interlinking of rivers.

15.     Vide Order dated 30th August, 2004, it was noticed by

this Court that, though there had been a change in the

Government, the then Solicitor General, appearing for the
                                                                     11

Government, informed this Court that a decision had been

taken, in principle, to continue with interlinking of rivers.

16.     A high level Task Force was set up.        However, vide

order dated 5th May, 2003, this Court observed that inputs

from other experts, in many fields, were necessary and that

the Task Force was to give due consideration to such inputs.

Feasibility Reports (hereafter, `FR') were prepared for the

intended links.    Subsequently, vide its order dated 8th April,

2005, this Court made it absolutely clear that the orders of

the Court in these respects have to be complied with in letter

and spirit. The FR of all links were to be put on the website

after their completion. This Court had also made observations

that the prior consent of any State Government was not

necessary for placing the FRs on the website and directed

them to be so placed. With great persuasion and efforts, the

FRs of 16 links had been placed on the website.            At the

request of the Amicus, the website was ordered to be made

interactive so that people could submit their response thereto.


17.     The status report filed on behalf of the Government of

India also showed that a committee of environmentalists,

social activists and other experts would be constituted to be
                                                                      12

involved in the consultative process of formulation and

execution of the entire project.


18.     The status reports filed, from time to time, have been

considered by this Court.


19.     Now, we may deal with the response of various States,

as they appear from the record before us. The response

affidavits have been filed on behalf of ten States. However, the

remaining States have not responded, despite the grant of

repeated opportunities to do so.          While the States of

Rajasthan, Gujarat and Tamil Nadu have supported the

concept of inter-linking of rivers, the State of Madhya Pradesh

had stated that networking of rivers is a subject falling under

the jurisdiction of the Central Government and the Central

Government should consider the matter.            The States of

Karnataka, Bihar, Punjab, Assam and Sikkim have given their

approval to the concept in-principle, but with definite

reservations, i.e., a kind of qualified approval, arguing that the

matters with regard to the environmental and financial

implications, socio-economic and international aspects, such

as inter-basin water transfer, need to be properly examined at

the appropriate levels of the Government. For example, all the
                                                                     13

rivers in Bihar originate from Nepal and it may be necessary

or desirable to take consent of neighbouring countries, is a

matter which would require consideration of the appropriate

authority in the Central Government. According to the State

of Punjab, inter-linking of rivers should be started only from

water-surplus States to States facing water deficit. The States

of Assam, Sikkim and Kerala had raised their protests on the

grounds that they should have exclusive right to use their

water resources and that such transfer should not affect any

rights of these States.    The State of Sikkim was concerned

with particular reference to tapping of the hydro power

potential in the State and the State of Kerala entirely objected

to long distance, inter-basin, water transfer.

20.     The Union of India filed three different affidavits dated

25th October, 2002, 5th May, 2003 and 24th December, 2003.

From these affidavits, the stand of the Union of India appears

to be that networking of rivers had been considered with great

seriousness even after the 1972 Rao Committee Report.

Surveys and studies were underway.          The 1980 National

Perspective Plan of the erstwhile Ministry of Irrigation,

presently the Ministry for Water Resources, envisaged inter-

basin transfer from water-surplus to deficit areas.     It would
                                                                    14

have direct benefits, like the irrigation of 35 million hectares

(Mha), full exploitation of existing irrigation projects of 140

Mha, power generation of 34 million Kilowatt (KW); besides the

indirect benefits like flood control, navigation, water supply,

fisheries, pollution control, recreation facilities, employment

generation, infrastructure and socio-economic development

etc.   With regard to the approvals required, it is submitted

that the Ministry of Environment and Forests, Union of India

had given some clearances, while refusing the same in other

cases. The consent of some of the States had not been

received. The expected financial implication as far back as in

2002 was Rs.5,60,000 crores.

21.      However, the Union of India has submitted that there

is no necessity for formation of a high-powered committee as

prayed for in the petitions. The high-level task force is to be

set up for considering the modalities of state-wise consensus.

The NWDA was set up as autonomous registered society

under the aegis of Ministry of Water Resources, in New Delhi

in 1992, for the purposes of preparation of FRs, conduct of

water-balance and other scientific studies, etc. for Peninsular

Region rivers (and for Himalayan Region rivers also, since

1990) and is headed by the Union Minister of Water
                                                                    15

Resources. The Chief Ministers and/or the Ministers and the

Secretaries as their nominees for Water Resources/Irrigation

of the State governments are its members. The pre-feasibility

reports of all 30 identified links had been completed by the

NWDA.


22.     The Union of India and some states have shown their

concerns and their apprehensions about these projects,

including questioning the reliability of water supply from

distant sources, distribution of water given the existing

tribunal awards and the continued availability of existing

water surpluses.




23.     In another affidavit, the Union of India referred to the

Terms of Reference to the Task Force and the appointment of

its Members. Action Plan I was prepared, which was expected

to be implemented by 2016. Out of the independent links to

be pursued for discussion, the first were the links in the

States of Gujarat, Maharashtra, Chattisgarh; secondly, the

States of Karnataka, Madhya Pradesh, Uttar Pradesh and

Rajasthan were to be included in discussions and thirdly, the

States of Andhra Pradesh, Tamil Nadu and Orissa were to be
                                                                    16

invited for discussion. The Detailed Project Reports (hereafter,

`DPR') were expected to be completed by December, 2006.

However, from the record, it appears that these DPRs have not

been completed even till today. The scheme of inter-linking of

rivers/preparation of DPRs is stated to be under review by

different groups and authorities.

24.     The Union of India also intended that these project

reports should encompass water sector schemes, rainwater

harvesting schemes etc., as these cannot be implemented

independent of the inter-linking scheme.       The last of the

affidavits filed on behalf of the Union of India was in

December, 2003. This affidavit gives details of the States, with

which a dialogue was to be held as also the details of

constitution of sub-committees. The Terms of Reference of the

Task Force included the approval of all links.        With the

intention to arrive at a general consensus, before entering into

agreements, the Union of India has discussed details with

Maharashtra and Gujarat and preliminary discussion has

taken place with the States of Andhra Pradesh, Chattisgarh,

Karnataka, Orissa, Tamil Nadu and Pondicherry. According to

the Union of India, invoking the matter internationally, at this

stage, was not advisable as the matter was premature. The
                                                                     17

NWDA was to begin the DPR for the first link, i.e., the Ken-

Betwa project, which itself was expected to take 30 months

time. In this, the DPR has now been prepared; however, the

implementation is yet to begin.    We must notice that in all

other links even the DPRs are not ready, as of now. The draft

Memorandum of Understanding (hereafter, `MoU') had been

circulated for conduct of DPR of three more Peninsular links.

The   Standing   Committee    of   the   Parliament   on    Water

Resources, (hereafter, `the Standing Committee'), in its report

for the year 2004-05 has commented that for the purpose of

preparation of DPRs for the Ken-Betwa link and the Parbati-

Kalisindh-Chambal link projects, a sum of Rs.14 crores had

been earmarked, out of the total Rs.35 crores allocated for

NWDA.      However,    the   Standing    Committee    had   been

constrained to observe that, though the FR of the Ken-Betwa

link was completed in November, 1996, the project was still at

a nascent stage. At the time of the report in 2004-05, the

basic MoU between the Governments of Uttar Pradesh and

Madhya Pradesh, for preparation of DPR, still remained to be

signed, on the ground that the State of Uttar Pradesh required

more water to be allocated to it. They further observed that, if

the Ministry of Water Resources, Government of India had set
                                                                          18

a time frame for finalization of issues like this, the precious

time of eight years would not have been lost. The matter still

rests at that stage. Today, though DPR has been prepared for

this   link        alone,   no   link   project    has   reached   the

implementation stage.




25.       The report of the Standing Committee which, inter

alia, had examined the river inter-linking proposal was

presented to the Parliament of India on 23rd August, 2004. It

was strongly recommended that the Government should take

firm steps and fix a definite time frame to lay down the

guidelines for completion of FRs, preparation of DPRs and

completion of projects so that they may be completed and the

benefits accrued within reasonable time and costs. It was the

opinion of the Standing Committee that the inter-linking of

Himalayan and Southern region rivers, if done within a

definite schedule, would save the nation from the devastating

ravages       of     chronic     droughts    and     floods.       The

recommendations of the Standing Committee deal primarily

with two kinds of States; the States having water shortage and

the States having surplus water. Still, there would be a third
                                                                    19

category of States, which would be comprised of those States

which have just sufficient water and therefore, do not fall in

either the flood-affected or the drought-affected categories of

States.    The role of such States may not be very project-

related; but, their consent/concurrence is needed for complete

implementation of the programme. Their role is relevant as

some canal projects, linking different rivers, may pass through

such States. But as already noticed, except one, no other DPR

has so far been finalized and in fact, none put into

implementation. Thus, this question would remain open and

has to be examined at the appropriate stage by the competent

forum.

Projection of Status Reports : -




26.       Different Status Reports have been filed in this case.

The last of the Status Reports have been filed by the Union of

India on 18th March, 2011. It has been pointed out that the

NWDA, which was to complete the task relating to preparation

of FRs and DPRs of link projects, has completed 208

preliminary water-balance study of basins, sub-basins and

diversion points, 74 toposheets and storage capacity studies of
                                                                       20

reservoirs, 37 toposheet studies of link alignments and 32 pre-

feasibility reports of links, towards the implementation of

inter-linking of rivers in the country. Based on these studies,

this agency identified 30 links (16 under the peninsular river

development component and 14 under the Himalayan river

development component) for preparation of FRs. The process

of consensus building is on-going, in regard to the feasibility of

implementing other interlinking projects. These reports have

shown that a significant effort and attempts have been made

and the unquestionable benefits that would accrue on the

implementation of the interlinking projects will be to benefit

the country at large. One aspect that needs to be noticed is

that, till today, no minor or major project has been actually

implemented at the ground level despite the fact that this case

has been pending before this Court for more than ten years.

Only the DPR of the Ken-Betwa link has been prepared and its

implementation    is   awaiting   the   approval   of   the   State

Governments as well as the allocation of funds, even to begin

the work. This does not speak well of the desire on the part of

any of the concerned Governments to implement these

projects, despite the fact that there is unanimity of views

among all that this project is in the national interest.
                                                                   21

27.     The Committee of Environmentalists, Social Scientists

and other Experts on inter-linking of rivers, had met after the

submission of the Status Report dated 5th March, 2010. They

discussed various aspects of different projects.        In the

Himalayan region, FRs of two remaining links were completed,

i.e., the Sarda-Yamuna link and Ghagra-Yamuna Link. The

field survey and investigation for Sone Dam on the southern

tributaries of the Ganga link, was still in progress. The

Ministry of Environment and Forests had refused permission

for survey and investigation of the Manas-Sankosh-Tista-

Ganga link, but the toposheet study for the alternative

Jogigopa-Tista-Farakka link has been completed. In the

Peninsular region, the projects relating to Bedti-Varada and

Netravati-Hemavati-Tapi       are     awaiting      Karnataka

Government's consent.     In Netravati-Hemvati-Tapi link, the

Karnataka Government has refused to consent even to the

preparation of FR until decision of related cases, pending in

the Courts.

28.     In the Dhadun dam, relating to the Ken-Betwa link,

two power houses and a link canal will be taken up in Phase I

and the Betwa basin will be completed in Phase-II.      Upper

Betwa Sub-Basin will receive priority completion and minor
                                                                    22

projects are proposed to be completed first. Phase-II will be

commenced after survey and investigation.        However, this

project is still at the survey and planning stage and even

comprehensive       clearances,   from   the   Uttar   Pradesh

Government, have not been received. The State of Rajasthan

refuses to consider the MoU for another priority link, Parbati-

Kalisindh-Chambal, until the updation of its hydrology

project.

29.        Similarly, there are other projects where public

hindrances are caused against carrying out of survey and

investigation.    In the Par-Tapi-Narmada and Damanganga-

Pinjal links, residents have shown concern about the extent of

land to be submerged on the construction of the proposed

dam. In response, the State Governments of Gujarat and

Maharashtra have set up Committees to take up the matters

with the panchayats and to commence the projects.


30.        The NWDA had also, in the course of framing of its

policies, proposed intra-state links. Except for six States and

four Union Territories, all other States and Union Territories

have interest in these intra-State links. There are eight inter-

linking projects which are under review by different State
                                                                   23

authorities.   However, the details of the divergence between

the State Governments are not clearly spelt out, even as of

now.


31.     An additional study was undertaken by the National

Council for Applied Economic Research (hereafter, `NCAER')

and the revised final report, published in April 2008, assessed

the economic impact of the rivers interlinking program and

suggested an investment roll out plan, i.e., a practical

implementation schedule, for the same. A copy of this report

was submitted in the year 2011, before this Court.

32.     As already noticed, the Task Force was constituted by

the Central Government for interlinking of river projects in

December 2002. It submitted its Action Plans I and II for

implementation of the project and also finalized the terms of

reference for the purposes of the DPRs.        Action Plan I,

submitted in April 2003, envisages completion of 30 FRs by

the authorities by December 2005.

33.     Action Plan II, submitted in April 2004, mainly

envisaged the appraisal of individual projects, in respect of

their economic viability, socio-economic and environmental

impacts, preparation of resettlement plans and reaching
                                                                     24

speedy consensus among States.          The reports have been

submitted   to   the   Central   Government    and    are   under

consideration. With this completion of work, the Task Force

had completed its object and stood dissolved. After winding

up of the Task Force, a Special Cell on interlinking of rivers

was created under the Ministry of Water Resources. However,

what happened to the two Action Plan reports submitted by

the Task Force is a matter left to the imagination of anyone.

34.     From the above, it is not difficult to visualize the

difficulties in preparation, execution, financing and consensus

building, still, it is the need of the hour to carry out these

projects more effectively and with greater sensitivity.

Economic Aspect :


35.     As per the report of the Standing Committee for the

year 2004-05, which was presented to the Parliament of India,

the planned budgetary allocation was made under NWDA as

follows :


36.     Actual allocation for 2002-03 was Rs.15.30 crores, the

budget estimate for 2003-04 was 20 crores, the revised

estimate for the same year was Rs.21.95 crores and for 2004-

05, the budget estimate was Rs.35 crores.
                                                                      25

37.     The Amicus Curiae, in his report, has noted that the

new aggregated cost of the entire program varies between Rs.

4,44,331.20 crores, at 2003-04 prices, and Rs.4,34,657.13

crores, at 2003-04 prices, depending on the implementation of

the   proposed     Manas-Sankosh-Tista-Ganga      link   or   the

Jogigopa-Tista-Farakka link respectively.


38.     As already noticed, the NCAER had been assigned the

work of assessing the economic impact of river interlinking

programmes, which in turn, suggested an investment roll-out

plan for the same. The report of the NCAER was prepared in

April, 2008.     This report considers various financial aspects

and the impact of various river interlinking projects in India.

They point out that after independence, irrigation was viewed

as infrastructure for agricultural development rather than as a

commercial enterprise.     In 1983, the Nitin Desai Committee

forwarded the idea of Internal Rate of Return (hereinafter

referred to as `IRR'), suggesting that projects should normally

earn a minimum IRR of 9 per cent.        However, for drought-

prone and hilly areas and in areas with only 75 per cent of

dependable flows in the basin, a lower IRR of 7 per cent was

recommended.         Successive   Finance   Commissions       also
                                                                      26

stressed on recovery of a certain percentage of the capital

investment apart from working expenses.            The Eleventh

Finance Commission has recognized that this would have to

be done in a gradual manner. Receipts should cover not only

maintenance expenditure but also leave some surplus as

return on the capital invested.




39.       This NCAER report, with some significance, noticed

that until 2003-04, it was only in four years that the economy

grew at more than 8 per cent per annum. Each of these years

coincided with very high rate of growth in the agricultural

sector.   In contrast, industry and services sectors have, at

best, pulled up the Gross Domestic Product (GDP) growth to

7.3 per cent per annum when there was no significant

contribution from the agricultural sector. The report clearly

opines that interlinking of river projects will prove fruitful for

the nation as a whole and would serve a greater purpose by

allowing higher returns from the agricultural sector for the

benefit of the entire economy.       This would also result in

providing of varied benefits like control of floods, providing

water to drought-prone States, providing water to a larger part
                                                                         27

of agricultural land and even power generation.               Besides

annuring to the benefit of the country, it will also help the

countries like Nepal etc., thus uplifting India's international

role. Importantly, they also point out to a very important facet

of interlinking of rivers, i.e., it may result in reduction of some

diseases due to the supply of safe drinking water and thus

serve a greater purpose for humanity.


40.       The Bhakra dam has also been cited as an example in

this report as having enabled the States of Punjab and

Haryana to register faster growth as compared to the rest of

the country. This project provided an additional irrigated area

to the extent of 6.8 million hectares over 35 years. Increased

irrigation intensity led to increased usage of High Yielding

Variety (HYV) seeds which at present constitute more than 90

per cent of the area under wheat and 80 per cent of area

under paddy cultivation. The region uses some of the most

advanced agricultural technologies in India.


NCAER, while depicting the poverty ratio vis-a-vis these States

and the other States all over India, has provided the following

tables:

States        Rural             Urban           All   Areas
                                                                            28

       1973-74 1999-00 1973-     1999-00 1973-74        1999-00
                       74
Punjab 28.21   6.35    27.96     5.75       28.15       6.16
Haryan 34.23   8.27    40.18     10.00      35.36       8.74
   a
  All 56.44    27.09   49.01     23.62      54.88       26.10
 India




41.     Thus, they conclude that the Bhakra Dam was

instrumental in helping India achieve food security, in

reducing volatility of food grain prices and declining the

incidence of poverty in those regions.


42.     Besides pointing out the benefits of Bhakra Dam, the

NCAER Report also states that the link canals have both short

and long term impacts on the economy.           Short term impact of

link   canals   is   in   the   form   of   increased    employment

opportunities and the growth of the services sector.              In the

medium to long term, the major impact of link canals is

through increased and assured irrigation.               Although the

major and direct gainers from the interlinking of rivers (ILR)

programme will be agriculture and agriculture-dependant

households, the entire economy will benefit because of

increased agricultural production and other benefits.


43.     The Report of the NCAER has pointed out various

benefits of rivers interlinking programme at the State and
                                                                     29

National levels. However, when coming to the financial aspect

of the programme, two concepts are of great relevance: firstly,

the investment strain and secondly, the scope of financial

investment and its recoupment.    Primarily, it is clear from the

records before us that this is a programme/project on which

the nation and the States should have a rational but liberal

approach for financial investment.   Referring to the financial

strain, the NCAER Report projects two sets of investment

rollout plan. At the start of the programme, investment would

be small, but would increase gradually peaking in the year

2011-2012. It will then start falling. Investment rollout from

the year 2008-2009 to 2014-2015 will have considerable

strain on the Central Government finances, especially after the

passage of Fiscal Responsibility and Budget Management

Rules (FRBMR).      The Government is now committed to

reducing fiscal deficit by 0.3 percentage points of GDP every

year and was to reduce the fiscal deficit down to 3 per cent of

GDP by the fiscal year 2007-2008.      The FRBMR also put a

restriction on Government borrowings.      In each subsequent

financial year, the limit on borrowings of 9 per cent of GDP

was to progressively reduced by at least 1 percentage point of

GDP, a commitment which is to be adhered to by all
                                                                      30

Governments. The investment plan prepared by the NCAER

was intended to help in clearing doubts in the minds of the

people and opponents of the programme that investment is

not going to take place in a single or couple of years, but over

a period of at least ten years.      Since the impact analysis

undertaken by the NCAER assumes that the Interlinking of

Rivers (ILR) programme is entirely financed by the Central

Government, a longer rollout plan would also help in reducing

the impact on public finances.

44.     The NCAER has also suggested changes which are

necessary for the effective implementation of the river

networking programme.       Inter alia, it includes the pricing of

irrigation benefits and improvement in the quality of service.

It will be useful to notice at this stage, these suggested

changes termed as `Changes necessary' which are as under:

"A revision of water rates is necessary in the interest
      of efficiency. However, it should go hand in hand
      with improvement in the quality of service
      (Government     of    India    1992).          Specific
      recommendations were made by the Committee on
      Pricing of Irrigation Water (Government of India,
      1992) with regards to pricing:

                  1. Water rates are a form of user
                     charges, and not a tax. Users of
                     public irrigation must meet the
                     cost of the irrigation service.
                                                31

    2. As irrigation is one of the key
       inputs similar to seeds and
       fertilizer, its pricing should be
       addressed in the first step.

    3. Under-pricing of irrigation is
       mainly     responsible     for  the
       deteriorating quality of irrigation
       services. A revision of water rates
       is necessary in the interest of
       efficiency. However, it should go
       hand in hand with improvement
       in the quality of service.

    4. Rates for non-agricultural users
       (domestic and industrial) should
       also be revised so that full cost is
       recovered.

    5. Rates should be based on O&M
       norms      and   capital    charges
       (interest and depreciation).

    6. Averaging of rates by region
       and/or categories of projects is
       desirable.  Categorisation could
       be:

 major and medium storage system,

 major and medium projects based
 exclusively on barrages/diversion
 works,

 minor surface irrigation works,

 lift irrigation canals, and

 lift irrigation from groundwater.

    7. Distinction of rates in terms of tail
       and head reaches of a system, soil
                                                              32

                quality, and other criteria for rate
                determination       should        be
                approached with caution due to
                complexities involved with it.

8. Water rates should be applied on two-part tariff.  All lands
  in command area should pay a flat annual fee on a per
  hectare basis for membership of the system and a variable
  fee linked to the actual extent of service (volume or area)
  used by each member.

             9. The     move     to    full-fledged
                volumetric pricing cannot be
                introduced immediately.         The
                proposed rationalization of water
                pricing   will    have     to    be
                accomplished in three phases.

             10.In the first phase, rationalization
               and simplification of the existing
               system of assessment (based on
               crop-wise irrigated area on an
               individual basis) to a system of
               season-specific areas rates should
               be taken up.      The level of cost
               recovery to be aimed during the
               first phase should at least cover
               O&M costs and 1 per cent interest
               on capital employed.            The
               irrigated area under a crop which
               spreads over to more than one
               season should be charged at the
               rates    applicable   to   different
               seasons.        However, in each
               season, distinction should be
               made between paddy, sugarcane,
               and perennial crops.

             11.In the second phase, the aim
               should be on volumetric measure
                                                                33

                    for irrigation water charging.

                  12.In third phase, the focus should
                    be on people participation for
                    improving water use and, thus,
                    productivity.

                  The recommendations of the Committee
                  on Pricing of Irrigation (also known as
                  the Vaidynathan Committee Report)
                  were further studied by the Group of
                  Officers formed by the Planning
                  Commission in October, 1992.            It
                  recommended that the irrigation water
                  rates should cover the full annual O &
                  M cost in phases in the next five years.
                  These    recommendations       and    the
                  Vaidyanathan Committee Report were,
                  in February 1995, sent to all the States/
                  union territories that had started taking
                  action with several states revising water
                  rates upwards."



        To sum up the short comings and their analysis, the

report states as under :


"One shortcoming of the above analysis is
          that it has not considered the issue of cost of
          resettlement of displaced people due to ILR
          Project. A draft National Rehabilitation Policy
          was prepared with the objective of minimizing
          development induced displacement of people
          by promoting non-displacing or least
          displacing     alternatives    for     meeting
          development objectives. The draft policy is
          yet to be finalized by the National Advisory
          Council (NAC). The NAC intends to finalise a
          rehabilitation package that includes, inter
          alia, providing land for all agricultural
          families, implementing special employment
                                                                       34

          guarantee        programmes,        providing
          homesteads and dwelling houses, bearing
          transportation cost, providing training and
          other    support   services,  instituting   a
          rehabilitation grant in order to compensate
          loss of income/livelihood. The ILR project
          has to consider displacement costs on the
          basis of norms stipulated in the national
          Rehabilitation Policy as and when it gets
          finalized."



45.     Besides    making     the   above     observations    and

recommendations,    the     NCAER   also    suggests   that   after

completion of the linking of rivers programme, the different

river links should be maintained by separate river basin

organizations, which would all be functioning under the direct

control of the Central Water Commission or such other

appropriate central body.


46.     In the summing up of its Report, the NCAER has

stated that water is essential for production of food, economic

growth, health and support to environment.              Its main

contribution to economic well-being is through its use of

agriculture to improve food security.       Water is essential to

increase agricultural productivity under modern technology.

Nearly 64 per cent of the population in rural area and 4 per

cent in urban area depends on agriculture as their principal
                                                                           35

source of income. The analysis carried out in the State shows

that the ILR programme has the potential to increase the

growth rate of agriculture, which declined from 4.4 per cent in

1980s to 3.0 per cent in 1990s and which is still susceptible to

the vagaries of rainfall. In order to put our economy on the

high growth path and improve the quality for life of people in

the rural areas, a mixed policy of both increased availability of

irrigation and increasing non-farm activity is required.


Principles Applied:


47.         From     the     above     narrated       facts,     stated

recommendations and principles, it is clear that primarily

there is unanimity between all concerned authorities including

the Centre and a majority of the State Governments, with the

exception of one or two, that implementation of river linking

will   be    very   beneficial.   In   fact,   the   expert    opinions

convincingly dispel all other impressions. There shall be

greater growth in agricultural and allied sectors, prosperity

and stimulus to the economy potentially causing increase in

per capita income, in addition to the short and long term

benefits likely to accrue by such implementation.                These

would accrue if the expert recommendations are implemented
                                                                                36

properly and within a timeframe. Then there shall be hardly

any financial strain on the economy. On the contrary, such

implementation would help advancement of India's GDP and

bring greater wealth and prosperity to the nation as a whole.

Besides actual benefits accruing to the common man, the

Governments also benefit from the definite possibility of saving

the States from drought on the one hand and floods on the

other.    This project, when it becomes a reality, will provide

immeasurable benefits.          We see no reason as to why the

Governments should not take appropriate and timely interest

in the execution of this project, particularly when, in the

various    affidavits   filed   by     the    Central   and      the   State

Governments, it has been affirmed that the governments are

very keen to implement this project with great sincerity and

effectiveness.


48.       The States of Rajasthan, Gujarat, Tamil Nadu have

fully supported the concept.                 Madhya Pradesh has also

supported     the   Scheme,      but    believes    that    it   must    be

implemented by the Central Government.                     The States of

Karnataka, Bihar, Punjab and Sikkim have given some

qualified approvals.       Their main concern is, with regard to
                                                                   37

inter basin transfer, which must involve quid pro quo, as with

any other resources inter-linking must be from water surplus

to water deficit States and in regard to environmental and

financial implications.     Some of the other States are not

connected with these projects as they have no participation in

inter-linking of rivers.   The State of Kerala has protested to

some extent, to the long distance inter basin water transfer on

the basis that the State needs water to supply their intricate

network of natural and man-made channels.


49.     It is also the case of the State of Kerala that their

rivers are monsoon-fed and not perennial in nature, therefore,

Kerala experiences severe water scarcity during summer or

off-monsoon months.


50.     The stand taken by the respective States, as noticed

above, shows that, by and large, there is unanimity in

accepting interlinking of rivers but the reservations of these

States can also not be ignored, being relatable to their

particular economic, geographical and socio-economic needs.

These are matters which squarely fall within the domain of

general consensus and thus, require a framework to be

formulated by the competent Government or the Legislature,
                                                                       38

as the case may be, prior to its execution.


51.     The National Commission for Review of the Working of

the Constitution (NCRWC) 2002 in its Report also dealt with

another important facet of river interlinking i.e. sharing of

river waters.     Explaining the doctrines of river sharing, it

described Doctrine of Riparian Rights, Doctrine of Prior

Appropriation,    Territorial   Integrity   Theory,   Doctrine   of

Territorial Sovereignty, English Common Law Principle of

Riparian Right, Doctrine of Community Interest, Doctrine of

Equitable Apportionment.          It also explained that when

determining what a reasonable and equitable share is, the

factors which should be taken into consideration.          In that

behalf, it specifically referred to agreements, judicial decisions,

awards and customs that already are in place.         Furthermore,

relative economic and social needs of interested states, volume

of stream and its uses, land not watered were other relevant

considerations.   Thus, it will be for the expert bodies alone to

examine on such issues and their impact on the project.


52.     Be that as it may, we have no hesitation in observing

that the national interest must take precedence over the

interest of the individual States.    The State Governments are
                                                                      39

expected to view national problems with a greater objectivity,

rationality and spirit of service to the nation and ill-founded

objections may result in greater harm, not only to the

neighbouring States but also to the nation at large.


53.      Now, we may refer to certain constitutional provisions

which have bearing on the matters in issue before us.      Under

the constitutional scheme, there is a clear demarcation of

fields of operation and jurisdiction between the Legislature,

Judiciary and the Executive.     The Legislature may save unto

itself the power to make certain specific legislations not only

governing a field of its legislative competence as provided in

the Seventh Schedule of the Constitution, but also regarding a

particular dispute referable to one of the Articles itself.

Article 262 of the Constitution is one of such powers.     Under

this Article, the Parliament, by law, can provide for the

adjudication of any dispute or complaint with respect to the

use, distribution and control of water of any inter-state river or

river valley.


54.      Article 262(2) of the Constitution opens with a non-

obstante expression, that `notwithstanding anything contained

in the Constitution, Parliament may by law provide that
                                                                     40

neither the Supreme Court nor any other Court shall exercise

jurisdiction in respect of any dispute or complaint as referred

to in Article 262(1)'.     In other words, the Parliament can

reserve to itself, the power to oust the jurisdiction of the

courts, including the highest Court of the land, in relation to a

water dispute as stated under this Article.   The jurisdiction of

the Court will be ousted only with regard to the adjudication of

the dispute and not all matters incidental thereto.          For

example, the Supreme Court can certainly direct the Central

Government to fulfill its statutory obligation under Section 4 of

the Act, which is mandatory, without deciding any water

dispute between the States. [See : Tamil Nadu Cauvery

Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu

Sangam v. Union of India & Ors., AIR 1990 SC 1316].


55.     One of the possible views taken with regard to Article

262 is that the use of expression `may' in the Constitution

does not indicate a clear legislative intent, thus, it may be

possible that Section 11 of the Act could refer only to such

disputes      as     are      already      referred     to     a

Tribunal and which are outside the purview of the courts.

Once a specific adjudicatory mechanism is created, that
                                                                        41

machinery comes into operation with the creation of the

Tribunal and probably, then alone will the Court's jurisdiction

be ousted.


56.      The Seventh Schedule to the Constitution spells out

different fields of legislation under the Union List (List I), State

List (List II) and Concurrent List (List III).   Entry 56 of List I

empowers the Union Parliament to enact laws in relation to

the regulation and development of inter-state rivers and river

valleys, to the extent that such regulation and development is

declared by the Parliament, by law, to be expedient in the

public interest.     Entry 57 deals with fishing and fisheries

beyond territorial waters.   Entry 97 is a residual entry, which

confers those legislative fields upon the Union Parliament

which are not specifically provided for under List II and/or List

III.   Entry 17 relates to water, that is to say, water supplies,

irrigation and canals, drainage and embankments, water

storage and water power, subject to the provisions of Entry 56

of List I. Agriculture is again a State subject. The Concurrent

List (List III) does not contain any entry in regard to water and

agriculture, as such.


57.      Entry 42 of List III is the law relating to acquisition
                                                                      42

and requisition of property by the Union and the State

Parliaments.   The result is that, in relation to acquisition, the

Centre and the State, both, have power to legislate.    Entry 20

of List III deals with economic and social planning.       Thus,

with the aid of the residual powers under Entry 97, List I, the

Union Parliament gets a very wide field of legislation, relatable

to various subjects.


58.      The River Boards Act, 1956 was enacted by the

Parliament under Entry 56 of List I.      The Inter-State Water

Disputes Act was also enacted with reference to the same

Entry.   Whereas the mandate of the latter is to provide a

machinery for the settlement of disputes, the former is an Act

to establish Boards for the regulation and development of

inter-State river basins, through advice and coordination, and

thereby to reduce the friction amongst the concerned States.

59.      It is this kind of coordination which is required to be

generated at all levels to implement the inter-linking of rivers

program, as proposed.     Huge amounts of public money have

been spent, at the planning stage itself and it will be travesty

of good governance and the epitome of harm to public interest,

if these projects are not carried forward with a sense of
                                                                          43

sincerity and a desire for its completion.

60.     In a more recent judgment of this Court in the case of

State of Karnataka v. State of Andhra Pradesh & Ors. [(2000) 9

SCC 572], a Constitution Bench of this Court took the view

that in Section 11 of the Act, the expression `use, distribution

and control of water in any river' are the key words in

determination of the scope of power conferred on a Tribunal

constituted under Section 3 of the Act. If a matter fell outside

the scope of these three crucial words, the power of Section 11

in ousting the jurisdiction of the courts in respect of any water

dispute, which is otherwise to be referred to Tribunal, would

not   have   any   manner    of   application.        The   test    of

maintainability of a legal action initiated by a State in a Court

would thus be, whether the issues raised therein are referable

to a Tribunal for adjudication of the manner of use,

distribution and control of water.

61.     Further,   this   Court   while   declining    to   issue   a

mandamus directing the States of Karnataka, Andhra Pradesh

and Maharashtra to constitute a common Tribunal, held:


"168. ......It is settled law that such a direction
      cannot possibly be granted so as to compel an
      authority to exercise a power which has a
      substantial element of discretion. In any event the
                                                                        44

      mandamus to exercise a power which is legislative in
      character cannot be issued and I am in full
      agreement with the submission of Mr. Solicitor
      General on this score as well. At best it would only
      be an issue of good governance but that by itself
      would not mean and imply that the Union
      Government has executive power even to force a
      settlement upon the State."



62.     The above stated principles clearly show that a greater

element of mutuality and consensus needs to be built between

the States and the Centre on the one hand, and the States

inter se on the other.   It will be very difficult for the Courts to

undertake such an exercise within the limited scope of its

power of judicial review and even on the basis of expanded

principles of Public Interest Litigation.       A Public Interest

Litigation before this Court has to fall within the contours of

constitutional law, as no jurisdiction is wider than this Court's

constitutional jurisdiction under Article 32 of the Constitution.

The Court can hardly take unto itself tasks of making of a

policy decision or planning for the country or determining

economic factors or other crucial aspects like need for

acquisition and construction of river linking channels under

that program. The Court is not equipped to take such expert

decisions and they essentially should be left for the Central
                                                                      45

Government and the concerned State. Such an attempt by the

Court may amount to the Court sitting in judgment over the

opinions of the experts in the respective fields, without any

tools and expertise at its disposal. The requirements in the

present case have different dimensions.            The planning,

acquisition,    financing,    pricing,     civil    construction,

environmental issues involved are policy decisions affecting

the legislative competence and would squarely fall in the

domain of the Government of States and Centre. We certainly

should not be understood to even imply that the proposed

projects of inter-linking of rivers should not be completed.

63.     We would recommend, with all the judicial authority

at our command, that these projects are in the national

interest, as is the unanimous view of all experts, most State

Governments and particularly, the Central Government.          But

this Court may not be a very appropriate forum for planning

and implementation of such a programme having wide

national dimensions and ramifications.       It will not only be

desirable, but also inevitable that an appropriate body should

be created to plan, construct and implement this inter linking

of rivers program for the benefit of the nation as a whole.
                                                                            46

64.         Realizing our limitations, we would finally dispose of

this Public Interest Litigation with the following directions:-

(I)   We direct the Union of India and particularly the

      Ministry of Water Resources, Government of India,               to

      forthwith constitute a Committee to be called a `Special

      Committee       for   Inter-linking   of   Rivers'    (hereinafter

      referred as `the Committee') of which, the following shall

      be the Members:-

      (a) The Hon'ble Minister for Water Resources.

      (b) Secretary, Ministry for Water Resources.

      (c) Secretary, Ministry of Environment and Forests.

      (d) Chairman, Central Water Commission.

      (e)    Member-Secretary,     National      Water     Development

             Authority.

      (f) Four experts to be nominated, one each from the

             following Ministries/bodies:

              (i) One Expert from the Ministry of Water Resources

              (ii) One Expert from the Ministry of Finance

              (iii) One Expert from the Planning Commission

              (iv) One Expert from the Ministry of Environment &

                   Forests.

      (g)     Minister for Water and/or Irrigation from each of
                                                                    47

             the concurring States, with the Principal Secretary

             of the concerned Department of the same State.

       (h)   The Chief Secretary or his nominee not below the

             rank of the Principal Secretary of the concerned

             Department in case of any other State involved

             directly or indirectly in the water linking river

             project.

       (i)   Two social activists to be nominated by each of the

             concerned Ministries.

       (j)   Mr. Ranjit Kumar (Amicus Curiae).

(II)   The Committee shall meet, at least, once in two months

       and shall maintain records of its discussion and the

       Minutes.

(III) In the absence of any person from such meeting,

       irrespective of his/her status, the meeting shall not be

       adjourned. If the Hon'ble Minister for Water Resources

       is not available, the Secretary, Ministry of Water

       Resources, Government of India, shall preside over the

       Meeting.

(IV) The Committee would be entitled to constitute such sub-

       committees, as it may deem necessary for the purposes

       of carrying on the objects of the Inter-Linking of River
                                                                            48

      Program, on such terms and conditions as it may deem

      proper.

(V)   The Committee shall submit a bi-annual report to the

      Cabinet of the Government of India placing before it the

      status-cum-progress report as well as all the decisions

      required    to   be    taken   in    relation   to   all   matters

      communicated therewith.           The Cabinet shall take all

      final and appropriate decisions, in the interest of the

      countries as expeditiously as possible and preferably

      within thirty days from the date the matters are first

      placed before it for consideration.

(VI) All the reports of the expert bodies as well as the status

      reports filed before this Court during the pendency of

      this petition, shall be placed before the Committee for its

      consideration.    Upon due analysis of the Reports and

      expert opinions, the Committee shall prepare its plans

      for implementation of the project.

(VII) The plans so prepared shall have different phases,

      directly   relatable   to   the     planning,   implementation,

      construction, execution and completion of the project.

(VIII) We are informed that large sums have been spent on

      preparation of initial and detailed project reports of the
                                                                         49

      project `Ken-Betwa Project'. The DPR is now ready. The

      States of Madhya Pradesh and Uttar Pradesh and also

      the Central Government had already given their approval

      and consent. The clarifications sought will be discussed

      by the Committee.         We would direct the Committee to

      take up this project for implementation at the first

      instance itself.

(IX) Keeping in view the expert reports, we have no hesitation

      in observing and directing that time is a very material

      factor in the effective execution of the Interlinking of

      Rivers project.    As pointed out in the Report by NCAER

      and by the Standing Committee, the delay has adversely

      affected the financial benefits that could have accrued to

      the concerned parties and the people at large and is in

      fact now putting a financial strain on all concerned.

(X)   It is directed that the Committee shall take firm steps

      and fix a definite timeframe to lay down the guidelines

      for completion of feasibility reports or other reports and

      shall ensure the completion of projects so that the

      benefits accrue within reasonable time and cost.

(XI) At the initial stages, this program may not involve those

      States   which     have    sufficient   water   and   are   not
                                                                    50

     substantially involved in any inter-linking of river

     programme and the projects can be completed without

     their effective participation.

(XII) However, the Committee may involve any State for

     effective completion of the programme at any subsequent

     stage.

(XIII) There are projects where the paper work has been going

     for the last ten years and at substantial cost to the

     public exchequer. Therefore, we direct the Central and

     the State Governments to participate in the program and

     render all financial, administrative and executive help to

     complete these projects more effectively.

(XIV) It is evident from the record that the Reports submitted

     by the Task Force have not been acted upon. Thus, the

     entire effort put in by the Task Force has practically been

     of no use to the concerned governments, much less the

     public.   The Task Force has now been wound up.        Let

     the reports of the Task Force also be placed before the

     Committee which shall, without fail, take due note of the

     suggestions made therein and take decisions as to how

     the same are to be implemented for the benefit of the

     public at large.
                                                                           51

(XV) The Committee constituted under this order shall be

      responsible for carrying out the inter-linking program.

      Its     decisions       shall   take   precedence      over   all

      administrative bodies created under the orders of this

      Court or otherwise.



(XVI) We grant liberty to the learned Amicus Curiae to file

      contempt petition in this Court, in the event of default or

      non-compliance of the directions contained in this order.

65.         We would fail in our duty if we do not place on record

the appreciation for the valuable and able assistance rendered

by the learned Amicus Curiae and all other senior counsel and

assisting counsel appearing in the present PIL.

66.         We   not   only    express   a   pious   hope   of   speedy

implementation but also do hereby issue a mandamus to the

Central and the State Governments concerned to comply with

the directions contained in this judgment effectively and

expeditiously and without default. This is a matter of national

benefit and progress. We see no reason why any State should

lag behind in contributing its bit to bring the Inter-linking

River Program to a success, thus saving the people living in

drought-prone zones from hunger and people living in flood-
                                                                                52

prone areas from the destruction caused by floods.


67.      With the observations and directions recorded supra,

Writ Petition (Civil) No.512 of 2002, Writ Petition (Civil) No.668

of 2002 and all the applications filed in both these writ

petitions are hereby finally disposed of with no order as to

costs.


                                           .............................CJI
                                .
                                          [S.H. Kapadia]




                                       ..................................,J.
                                       [A.K. Patnaik]



                                       ..................................,J.
                                                [Swatanter Kumar]

New Delhi;
February 27, 2012
                                                                       53



 ITEM No.1A              COURT NO.1                     SECTION III


               S U P R E M E   C O U R T   O F        I N D I A
                        RECORD OF PROCEEDINGS

                  WRIT PETITION (CIVIL) NO.512 OF 2002

IN RE : NETWORKING OF RIVERS

With Writ Petition (C) No.668 of 2002

Date : 27/02/2012    These Matters were called on for judgment today.

                          Mr. Ranjit Kumar,Sr.Adv. (A.C.) (N/P)
                          Mr. Nikhil Nayyar,Adv. (A.C.)

For Petitioner(s)

In WP 668/2002:           Mr. Sudarsh Menon,Adv.

For Respondent(s)         Mr. R. Ayyam Perumal,Adv.

                          Mr. Sanjay R. Hegde,Adv.

                          Mr. Shreekant N. Terdal,Adv.

                          Mr. Gopal Singh,Adv.
                          Mr. Ravi Bhushan,Adv.
                          Mr. Manish Kumar,Adv.

                          Mr. Gopal Singh,Adv.
                          Mr. Rituraj Biswas,Adv.

                          Mr. Naresh K. Sharma,Adv.

                          Mr. Ashok K. Mahajan,Adv.

                          Mr. G. Prakash,Adv.

                          Mr. Riku Sarma,Adv.
                          for M/s. Corporate Law Group,Advs.

                          Ms. Hemantika Wahi,Adv.

                          Mr. Tara Chandra Sharma,Adv.

                          Ms. A. Subhashini,Adv.
                                                          ....2/-
                                             54

          - 2 -

Ms. Manik Karanjawala,Adv.

Mr. Prashant Bhushan,Adv. (N/P)

Mr. Kamlendra Mishra,Adv.

Mr.   Ranjan Mukherjee,Adv.
Mr.   S. Bhowmick,Adv.
Mr.   S.C. Ghosh,Adv.
Mr.   R.P. Yadav,Adv.

Mr. Guntur Prabhakar,Adv.

Dr.   Manish Singhvi,AAG.
Mr.   Ashutosh Kumar Singh,Adv.
Mr.   Irshad Ahmad,Adv.
Mr.   Milind Kumar,Adv.

Mr. Khwairakpam Nobin Singh,Adv.
Mr. Sapam Biswajit Meitei,Adv.
Mr. Techi Poto,Adv.

Mr. Atul Jha,Adv.
Mr. Sandeep Jha,Adv.
for Mr. Rajesh Srivastava,Adv.

Mr. Chandra Prakash Pandey,Adv.

Ms. D. Bharathi Reddy,Adv.(N/P)

Mr. B.S. Banthia,Adv.

Mr. Shankar Chillarge,AAG.
Mr. Sanjay Kharde,Adv.
Ms. Asha Gopalan Nair,Adv.

Mr. Alok Gupta,Adv.

Mr. Abhijit Sengupta,Adv.

Ms. Rachana Srivastava,Adv.

Ms. Sumita Hazarika,Adv.

Mr. Jagjit Singh Chhabra,Adv.
Mr. Jaswant Persoya,Adv.

Mr. S.W.A. Qadri,Adv.
Mr. D.S. Mahra,Adv.
                                  ....3/-
                                                                55


                                 - 3 -

                      Mr. Ramesh Babu M.R.,Adv.
                      Mr. Shekhar Prasad Gupta,Adv.
                      Mr. Sushrut Jindal,Adv.

                      Mr. Anil Shrivastav,Adv.
                      Mr. Rituraj Biswas,Adv.

                      Mr. K.N. Madhusoodhanan,Adv.
                      Mr. R. Sathish,Adv.

                      Mr.    Edward Belho,Adv.
                      Ms.    K. Enatoli Sema,Adv.
                      Mr.    P. Athumei R. Naga,Adv.
                      Mr.    Nimshim Vashum,Adv.

                      Mr. G. Umapathy,Adv.
                      Mr. B. Balaji,Adv.

                      Mr. Manjit Singh,AAG.
                      Mr. Tarjit Singh,Adv.
                      Mr. Kamal Mohan Gupta,Adv.

For Director,         Mr. Bhavanishankar V. Gadnis,Adv.
Environment, Goa:     Ms. B. Sunita Rao,Adv.


              Hon'ble   Mr.   Justice   Swatanter   Kumar
      pronounced the judgement of the Bench comprising
      Hon'ble the Chief Justice, Hon'ble Mr. Justice A.K.
      Patnaik and His Lordship.

              The writ petitions and all the applications
      filed in both these writ petitions are finally
      disposed of with no order as to costs.



           [ Alka Dudeja ]                [ Madhu Saxena ]
            A.R.-cum-P.S.                Assistant Registrar

      [Signed reportable judgement is placed on the file]