ALTAMAS KABIR, J. - (1.) THE State of Orissa has filed this writ petition under Article 32 of the Constitution of India, wherein the Government of India has been made the Respondent No.1 and the State of Andhra Pradesh has been made the Respondent No.2, inter alia, for the following reliefs :- "a) direct the Government of India to constitute an appropriate Tribunal under Section 4 of the Inter State Water Disputes Act, 1956 and thereafter, refer to it the dispute relating to the construction of Side Channel Weir and Flood Flow Canal Project at Katragada on the river Vansadhara by the State of Andhra Pradesh; b) issue a writ of mandamus commanding the State of Andhra Pradesh to forbear from carrying on any works of the proposed project;"
(2.) AS indicated in the very opening paragraph, the writ petition was filed by the State of Orissa for a direction to the Central Government to constitute a Water Disputes Tribunal under the Inter-State Water Disputes Act, 1956 and to refer to the Tribunal the dispute contained in the complaint made by the State of Orissa on 13th February, 2006, as to whether the State of Andhra Pradesh was justified in constructing a Side Channel Weir and Flood Flow Canal Project on the river Vansadhara at Katragada, which would adversely affect the supply of water from the river to the State of Orissa and adversely affect the livelihood of thousands of people of Orissa in glaring violation of Article 21 of the Constitution of India. In order to understand the stand taken by the State of Orissa in the matter, it would be necessary to set out the facts of the case giving rise to the dispute. The river Vansadhara originates in the South West of Lanjigarh in the Kalahandi District of Orissa and continues its journey for 239 kms. before entering the Bay of Bengal. Out of the said 239 kms., a length of 154 kms. lies in the State of Orissa, 29 kms. forms the border between the State of Orissa and Andhra Pradesh and the remaining 56 kms. lies within the State of Andhra Pradesh. The said river and its valley is fed by the South-West monsoon beginning in the middle of June and ending in the month of October each year and is followed by the retreating monsoon and North-East monsoon till the end of January. According to the State of Orissa, about 80% of the total volume of water comes from the catchment area lying in Orissa. While the farmers in Andhra Pradesh utilize 7 TMC of water from the river, the inhabitants of Orissa utilize 12 TMC for drinking purposes and water tanks etc. in the up-stream and down stream of Katragada.
(3.) DURING the period from 1956-60, the State of Andhra Pradesh proposed the construction of Gotta Barrage and Neradi Barrage across the Vansadhara river. DURING the aforesaid period, many meetings were held between the officials of the two State Governments to resolve the dispute of allocation of water. On 30th September, 1962, an Agreement was signed by the Additional Chief Engineer of Orissa and the Additional Secretary, PWD, of Andhra Pradesh, which was recorded in Minutes dated 30th September, 1962. In 1971, the State of Andhra Pradesh started construction of the Gotta Barrage (Vansadhara Stage-l) which was completed in the year 1982. Thereafter, it also constructed Phase-l of Stage-ll of the Vansadhara project, i.e., right bank canal. Several meetings were held between the officials, including the Chief Ministers of the two States, and Agreements were signed pertaining to allocation of water of the Neradi Barrage. On 30th December, 1994, a meeting was held between the Chief Ministers of the two States and it was decided that all the available water would be shared between the two States on a 50:50 basis annually. The discussions relating to the distribution of water from the Neradi Barrage were recorded and is reproduced hereinbelow : "NERADI BARRAGE : Government of Orissa agrees in principle to the proposal of Government of Andhra Pradesh for going ahead with the project subject to the following conditions. (1) Hydrology data available in the C.W.C. Water year Book upto 1992 was studied by the Orissa Engineers. Based on this analysis it is found that in Vansadhara basin approximately 76.47 TMC water is available in monsoon. DURING non- monsoon months the yield may approximately be 7 TMC. All the available water will be shared between the two States on 50:50 basis annually. The above figure regarding water availability would be updated from time to time on the basis of additional data as and when available. (2) No area in Orissa will be submerged as a result of construction of the proposed Neradi Barrage, except 106 acres of land to be acquired in Orissa State for various purposes as indicated in the Project Report. (3) To ensure that the back water stretch is limited only to 3 kms on the upstream, the river has to be widened by removing construction between the chainage 10.37 to 13.65 kms to the section as suggested in the supplementary mathematical model run by the C.W.C. The Government of Orissa, in consultation with C.W.C. will however conduct sensitivity studies within a period of 3 (three) months incorporating varying 'n' values which has not been carried out so far by the C.W.C. This study will indicate the water surface profile upstream and downstream of the barrage and the extent of likely back water stretch in Orissa. Based on the sensitivity study the height and length of the wall may need revision, the design of which will need to be agreed by the Orissa Government. (4) A joint technical committee consisting of the Engineer-in-Chief of both the States will be formed to approve broad design and construction features of the barrage as well as water sharing and flood management. Sd/- Sd/- Shri NT. Rama Rao Shri Biju Patnaik Chief Minister Chief Minister Andhra Pradesh Orissa." After the meeting of the two Chief Ministers and the decision arrived at by them, several meetings were held between the officials of both the States in regard to the allocation of water of the river flowing through both the States. At this stage, while considering the technical design of the Neradi Barrage, the Government of Andhra Pradesh announced a new project by investment of Rs.850 crores. The Chief Minister of Andhra Pradesh on 6th January, 2005, announced that the waters of the Vansadhara river would be diverted at Katragada to a 34 kms. long Flood Flow Canal and be stored in the Heeramandalam reservoir to irrigate 1.07 lakh acres of land by utilizing 19 TMC of water. It was apprehended by the State of Orissa that the said proposed project would deprive the villagers of Orissa lying on the opposite bank in the down stream from even dry-weather flow and there was also a possibility of shifting of the river course itself. On 18th February, 2005, the Principal Secretary, Department of Water Resources, Government of Orissa, wrote to his counter-part in Andhra Pradesh protesting against the new project. The said objection culminated in a meeting of the Ministers of the two States on 24th February, 2005 at Hyderabad against the new proposal for the project at Katragada and the said meeting ended with the following resolution: "1) Constitution of a Technical Committee with the Engineers from both the States to study all aspects of Vansadhara Project Phase II of State-ll, including submergence in Orissa, if any, and submit the report not later than three months. 2) No work will be taken up by both the States in the river bed or banks or on Flood flow Canal, till the final Report of the Technical Committee is submitted and accepted by both the Governments. 3) No work, which will jeopardize the interest of any State, shall be taken up. 4) The relevant Project information will be furnished to the Central Water Commission, as per requirements. 5) The delegation of Ministers of both the States shall meet as frequently as possible to sort out all the matters of mutual interest as regards to Irrigation Project......" ;