STATE OF ANDHRA PRADESH v. STATE OF MAHARASHTRA & ORS.
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A 2. Babhali barrage to be constructed with 2.74 TMC capacity and the gates to be lowered on 28th October. This proposal was not acceptable to Govt. of Andhra Pradesh because they maintained that Babhali barrage is an encroachment into the submergence area of Sri Ram B Sagar Project (SRSP). They also apprehended that Govt. of Maharashtra can use waters several times the capacity of barrage, which will affect the storage of SRSP adversely.
3. The 2nd proposal given by the Govt. of Maharashtra was c regarding reduction in the height of the gates of the Babhali barrage. They have. worked out the minimum requirement from Babhali barrage considering the requirement for Rabi crop up to February and drinking water requirement up to June as 30.84 MCM (1.09 TMC). In addition to this, intercepted water of SRSP required to be released from Babhali Barrage is of the order of 17.00 MCM (0.6 TMC) and the evaporation losses may be considered of the order of 0.27 TMC. To meet the above total requirement, the gross capacity for Babhali barrage has been worked out as 1.96 TMC. For this storage, the FRL of Babhali Barrage as per the Area-Capacity curve submitted by Govt. of Maharashtra in the meeting is 336.Sm, resulting in a reduction of the height of the gates by 1.5 m. This proposal was also not acceptable to Govt. of Andhra F Pradesh."
68.1. The minutes further recorded:
"Govt. of Maharashtra submitted that there is no other possibility for drinking water supply in this region since, G from the month of November-December, the storage in SRSP recedes considerably and water spread falls below the border. The farmers in this region need water for irrigating their Rabi crops and at present there is no other arrangement for this purpose. Considering the requirement H
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MAHARASHTRA & ORS. [R.M. LODHA, J.] of Govt. of Maharashtra and keeping in view the objectives of Govt. of Andhra Pradesh, an alternative solution was suggested as under:
The capacity of the barrage should be reduced to the bare minimum requirement of Govt. of Maharashtra, which has been assessed by them as 1.09 TMC. From the Area Capacity relationship submitted by the Govt. of Maharashtra, it was observed that at an FRL of 334.20m, the capacity of the Babhali barrage reservoir is 1.03812 TMC and at FRL 334.60 m, the capacity is 1.16893 TMC. Therefore, if the FRL is kept at 334.50 m, the requirement of Govt. of Maharashtra can be met and this will reduce the height of the gates by 3.5 m. The gates will be closed only after 28th October depending on the inflow and storage condition of SRSP, to be mutually agreed by both the concerned states. D
Under the existing circumstances, this was discussed by the Committee as a viable option for consideration for amicable settlement of the issue. The officials of the Govt. of Andhra Pradesh and the Govt. of Maharashtra E expressed that they would need approval of their respective governments in this regard. The Chairman suggested that there may not be any need for another meeting if the response is positive and the recommendation could be submitted to the Hon'ble Union F Minister for Water Resources after the response from the two states are received."
68.2. The two states could not agree to any solution mutually thereafter. G
6969. Andhra Pradesh has a grievance about meetings held on 26.04.2006 and 19.05.2006 as according to it the technical committee did not examine the issues in terms of the grievance of Andhra Pradesh. According to Andhra Pradesh, ewe in the Inter-state meetings held on 11.07.2005 and 05.10.2005 have H
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A categorically opined that without the consent of Andhra Pradesh, Maharashtra is not entitled to construct the Babhali barrage within the submergence area of the Pochampad project.
7070. The issue of entitlement of Maharashtra under the B agreement dated 06.10.1975 has been examined in the earlier part of the judgment. The question now is, even if we accept the interpretation placed upon the agreement dated 06.10.1975 by Andhra Pradesh, should an injunction follow against Maharashtra. c 71. There is a sharp conflict over the subject matter of the dispute between the two states. Andhra Pradesh does not trust Maharashtra and seriously doubts that Maharashtra would honour what it says. In this regard, Mr. K. Parasaran, learned senior counsel for Andhra Pradesh brought to our notice the diverse acts of. Maharashtra. During the pendency of the suit, Mr. K. Parasaran submitted that Maharashtra resumed the construction contrary to the directions given by ewe on 03.03.2006. In the meeting of the Chief Ministers of Andhra Firadesh and Maharashtra held on 04.04.2006, it was decided that a technical committee shall go into the details of various issues involved in Babhali Barrage project and till the technical committee submits its report, further construction work will not be done by Maharashtra. This was not adhered to by Maharashtra. On 26.04.2007, this Court by an interim order permitted Maharashtra to go ahead with construction of the Babhali barrage but directed that it shall not install the proposed 13 gates until further orders. It was clarified by this Court that as the Maharashtra is permitted to proceed with construction at its own risk, it will not claim any equity by reason of the construction being carried on by it. Contrary to and in violation of the interim order of this Court, Andhra Pradesh says that Maharashtra proceeded to install the gates. It also installed 14 gates instead of proposed 13 gates. As the Maharashtra went ahead with installation of gates (5 Nos.), Andhra Pradesh was compelled to file contempt petition.
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MAHARASHTRA & ORS. [R.M. LODHA, J.]
7272. There may be some merit in the grievances of Andhra A . ,, Pradesh in this regard. Andhra Pradesh has suggested that to take care of its concerns, it would be appropriate to permit it to provide 1.09 TMC to Maharashtra from the water spread area of the Pochampad in the territory of Maharashtra and direct Maharashtra to remove the installed gates. In our view, B if Andhra Pradesh's apprehensions are addressed and its fears are allayed by putting in place a supervisory mechanism in the form of a committee, no substantial injury of serious magnitude would occasion to Andhra Pradesh.
7373. There are views and counter views on the post ·c monsoon yield data (October 29 to May 31). Andhra Pradesh, with reference to the post monsoon yield data furnished by Maharashtra, submits that the available yield to Maharashtra at Babhali barrage is in the range of 1537.20 MM 3 (i.e. 54.29 TMC) to 77.39 MM 3 (i.e. 2.73 TMC) in 75 per cent years of the D 37 years series project. This enables Maharashtra to appropriate more than 2.74 TMC in 74 per cerit of years as water will be drawn from pondage and replenished. During non- monsoon 7/8 months the water flows in trickles and, therefore, water will be drawn for irrigation and replenish on a regular basis even in remaining failure years of 25 per cent where non-
- monsoon yield is less than 2.74 TMC or years where non- monsoon flows are absolutely bare minimum, Maharashtra will be enabled to draw the water from the intercepted storage of Pochampad or by reverse flow. Andhra Pradesh emphasizes that Maharashtra has ignored 75 per cent dependability of Pochampad project. After lowering the gates of Babhali barrage on October 28, the non-monsoon flows into Pochampad are obstructed during the 75 per cent of the years. Babhali barrage has the effect of depleting Andhra Pradesh's entitlement to the flow of water into its project constructed at 75 per cent dependability.
7474. Maharashtra, on the other hand, says that Andhra ~ Pradesh has ignored the fact that Babhali barrage comes into H
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A operation only after October 28 and the 75 per cent dependability yield at Babhali barrage after that date is only
2. 73 TMC. Maharashtra asserts that it has calculated the actual 75 per cent available flows from October 29 to May 31 from 1968 to 2004 which comes to only 2.73 TMC at 75 per cent B dependable yield. Hence, the utilization cannot be more than 2.73 TMC. Maharashtra also asserts that there is no occasion for it to utilize periodically 2.74 TMC from time to time as the total flow after October 28 is only 2.73 TMC. Maharashtra also says that there is no question of Maharashtra drawing water of c Pochampad reservoir in the reverse direction to the extent of 65 TMC. With regard to Balegaon barrage, Maharashtra asserts that the capacity of Balegaon barrage is about 1.5 TMC out of which 0.6 TMC is the intercepted storage of Babhali barrage and the remaining 0.9 TMC is adjusted from the sanctioned utilization of Vishnupuri barrage project upstream. 0
7575. We have carefully considered the submissions of the two states on post monsoon yield data (October 29 to May 31). The discharge data actually has been observed by the CWC at Yelli gauging site for the period 1968 to 2004, October 29 E to May 31 which does indicate that on 75 per cent dependable flow, the total yield for this period is 2.733 TMC (77.39 MM3). We find no justifiable reason to discard the discharge data observed by ewe for 36 years. -
7676. We have also examined the list of major, medium, minor (state sector), minor (local sector) of the projects sanctioned after 06.10.1975 below Paithan dam up to Maharashtra - Andhra Pradesh state border. A careful look at the said list shows that for the diverse projects sanctioned after 06.10.1975 in Godavari river below Paithan dam up to Andhra G Pradesh state border, the total utilization is of 63018 MC feet (63.018 TMC) and the net utilization is 59112.70 MC feet (59.11270 TMC). Andhra Pradesh is right that total utilization of waters for new projects sanctioned after 06.10.1975 is 63.018 TMC. However, as noted above, the net utilization by H
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MAHARASHTRA & ORS. [R.M. LODHA, J.]
Maharashtra of the projects sanctioned after 06.10.1975 is A 59.11270 TMC. In any case, Maharashtra has to ensure that it does not exceed the restriction placed upon its utilization in Clause ll(i) of the agreement dated 06.10.1975.
7777. In the minutes of 19.05.2006 of the technical committee 8 meeting convened by Chairman, CWC, it is stated that the project report of the Babhali barrage has been prepared according to the standard guidelines of the Commission. The project report of Babhali barrage which has been got approved from ewe clearly indicates that the monthly yield from c November during post monsoon season is 2.64 TMC. The project report also shows that there is no scope for Maharashtra for withdrawing more than 2.73 TMC.
7878. Maharashtra's assertion that Babhali barrage will trap maximum 0.6 TMC of the Pochampad storage is not .a new plea raised for the first time before this Court in the amended written statement. As a matter of fact, before filing the suit by Andhra Pradesh, the said aspect was highlighted by Maharashtra in the technical committee's meeting convened by Chairman, CWC on 26.04.2006. The minutes of that.meeting record, "storage of Babhali barrage is well within the banks. The sill level and FRL of Babhali barrage are 327 m and 338 iTI respectively and 13 gates of 15 m x 11 m size are proposed to be installed. The Gross storage of Sri Ram Sagar Project and that of Babhali barrage are 112 TMC and 2.74 TMC F respectively and there is a common storage of 0.60 TMC which is just 0.54% of the storage of SRSP. Command area of Babhali barrage is 7995 ha."
7979. Moreover, admittedly rainfall during monsoon months is the major contribution to the Godavari river flows. Monsoon G contributes about 90 per cent of the river flow. During monsoon months, the gates of Babhali barrage shall remain lifted. Thus, river flow towards Pochampad dam during monsoon shall not be affected in any manner whatsoever. There is no diminution of flow during monsoon irrespective of construction of Babhali H
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A barrage by Maharashtra. The only difficulty is in respect of non- monsoon season which contributes about 10 per cent of the flows that too is not well defined and well spread. If this difficulty is taken care of, virtually there is no injury to Andhra Pradesh much less substantial injury in as much as the inhabitants of B seven districts {Adilabad, Nizamabad, Karimnagar, Warrangal, Nalgonda, Khammam and Medak) shall not be deprived of water for drinking purpose and irrigation which is the main concern of Andhra Pradesh. On the other hand, if Babhali barrage is made operational subject to certain conditions and c some supervisory mechanism is put in place to ensure that those conditions are strictly adhered to, Maharashtra may be able to meet drinking water requirement of 58 villages and three towns and also provide water for irrigation to 7995 hectares. The matter needs to be viewed in this perspective as well. 0
8080. We assume that apprehensions of Andhra Pradesh are bona fide and genuine. However, in our view, these apprehensions can be largely overcome and addressed. It is pertinent to notice that though with regard to present subject matter, Andhra Pradesh has taken a very rigid and hard stance but with regard to Pranhita project (Dr. B.R. Ambedkar Pranhita Chevella Sujala Sravanti Project) Andhra Pradesh and Maharashtra have adopted a very collaborative position ·10 ensure efficient, speedy and economical investigation and execution of this project. The two Chief Ministers as recently as May 2012 have entered into an agreement for constitution of Inter-State Board to take charge of and deal with all the matters relating to all relevant items as stipulated in the 1979 award and 1980 further award with regard to Pranhita river. G There is no reason why supervisory committee cannot oversee the compliance of commitments which Maharashtra had made to this Court by way of pleadings and also in the course of hearing.
8181. In view of the foregoing discussion, we may conclude • H
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MAHARASHTRA & ORS. [R.M. LODHA, J.] our findings as follows : A. (i) Under the agreement dated 06.10.1975 and the 1979 award of the Tribunal the utilization of 60 TMC water by Maharashtra for the new projects below Paithan dam site on the Godavari and below Siddheswar dam site on the 8 Puma and below Nizamsagar darn site on the Manjra and up to Pochampad dam site on the Godavari is not confined to flowing waters alone in the territory of Maharashtra.
(ii) The thrustof the parties in Clause ll(i) of the agreement dated 06.10.1975 and the essence of this Clause is to put a cap OT) the right of Maharashtra to utilize water of Godavari river below the three dams mentioned therein up to Pochampad dam site to the extent of 60 TMC for new projects and in no case exceeding that limit. There is no demarcation made in the agreement that the utilization of waters not exceeding 60 TMC for new projects by Maharashtra shall be from the flowing water through the river from the catchment area only.
(iii) The commitment of Maharashtra that the Babhali E barrage project requires 2.74 TMC of water out of the allocation of 60 TMC for new projects under the agreement of which only 0.6 TMC is from the common submergence of Pochampad reservoir and Babhali barrage if accepted and its compliance is ensured, it may be conveniently held that Babhali barrage would not enable Maharashtra to draw and utilize 65 TMC of water from the storage of Pochampad project as alleged by Andhra Pradesh.
(iv) Alternatively, even if the interpretation placed upon the agreement dated 06.10.1975 by Andhra Pradesh is accepted that utilization of waters to the extent of 60 TMC for new projects by Maharashtra from below the three dam sites mentioned in Clause ll(i) up to Pochampad dam site can be only from water flowing through the river from the H
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A catchment area and not from the pondage/water spread area of Pochampad dam, on the basis of facts which have come on record, a case of substantial injury of a serious magnitude and high equity that moves the conscience of the Court has not been made out by Andhra Pradesh B justifying grant of injunction.
8282. In light of the above, we hold that Andhra Pradesh is not entitled to the reliefs, as prayed for, in the suit.
· 83. However, a three member supervisory committee is C constituted. The committee shall have one representative from the Central Water Commission and one representative each from the two states, Andhra Pradesh and Maliarashtra. The representative of Central Water Commission shall be Chairman of the committee. The Committee shall select the place for its o office which shall be provided by Maharashtra. Maharashtra shall bear the entire expenditure of the Committee. The powers and functions of the supervisory committee shall be as follows: I
(i) The committee shall surprise the operation of the Babhali barrage. E (ii) The committee shall ensure that;
(a) Maharashtra maintains Babhali barrage storage capacity of 2.74 TMC of water out F ·of the allocation of 60 TMC given to Maharashtra for new projects under the agreement dated 06.10.1975.
(b) The gates of Babhali barrage remain lifted during the monsoon season, i.e, July 1 to G October 28 and there is no obstruction to the natural flow of Godavari river during monsoon season below the three dams mentioned in Clause ll(i) of the agreement dated 06.10.1975 towards Pochampad H dam.
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MAHARASHTRA & ORS. [R.M. LODHA, J.] {c) During the non-monsoon season i.e., from A October 29 till the end of June next year, the quantity of water which Maharashtra utilizes for Babhali barrage does not exceed 2.74 TMC of which only 0.6 TMC forms the common submergence of Pochampad B reservoir and Babhali barrage.
{d) Maharashtra does not periodically utilize 2.74 TMC from time to time. ·(e) Maharashtra releases 0.6 TMC of water to C Aadhra Pradesh on 1st March every year. (f) Maharashtra maintains the capacity of Balegaon barrage to 1.5 TMC. Out of this 0.9 TMC is adjusted from sanctioned utilization D of Vishnupuri project upstream and 0.6 TMC remains the intercepted storage· of Babhali barrage.
8484. Sujt and IA Nos. 13 and 15 are disposed of as above with no orders as to costs. E W.P.!Cl No. 134/2006. W.P.!Cl No. 210/2007 AND W.P.(C) No. 207/2007
8585. We have heard Mr. A.K. Ganguli, learned senior F counsel for the petitioners in W.P.(C) No. 207 of 2007. We have also considered the written submissions filed in W.P.(C) Nos. 207 and 210 of 2007. However, we do not find it necessary to consider these writ petitions on merits in view of consideration and decision in the original suit filed by Andhra Pradesh against G Maharashtra.
8686. These Writ Petitions and IA Nos. 1 and 3 in Writ Petition © No. 134 of 2006, IA Nos. 1 and 2 in Writ Petition © No. 21 Oof 2007 and IA No. 1 in Writ Petition © No. 207 of 2007 H
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A are disposed of accordingly.
Contempt Petition (C) No. 142 of 2009 in Original Suit No. 1 of 2006
8787. In view of our judgment given in Original Suit, we are B not inclined to consider the Contempt Petition on merits. It is disposed of accordingly.
R.P. Original Suit disposed of.
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