PANAJI: After the approval of the Detailed Project Report (D.P.R.) of Karnataka for the Kalsa Bhandari projects on Mhadei, Goa’s only option to retain the lifeline is the Supreme Court.
Especially after being cold-shouldered by Central Government headed by Prime Minister Narendra Modi and Home Minister Amit Shah, Goa’s only hope relies on Supreme Court, wherein it has filed two Contempt Petitions and One Special Leave Petition along with two Interlocutory Applications (I.A.s) and one Disobedience Petition in MWDT.
The Goa Government has so far said that the case has not been listed due to COVID and maintained it has the upper hand in the matter before Apex Court.
Goemkarponn brings to you exclusively the cases pending before the S.C. and their current status:
- Contempt Petition No. 2113/2018.
Based on newspaper reports and field visits of officials, Goa Govt Contended that Karnataka had diverted the Mahadayi waters at Kankumbi from the Kalasanallah through the interconnecting channel to the Malaprabha basin.
Goa says that these actions of Karnataka constituted a violation of the earlier orders of the S.C. and the Mahadayi Water Disputes Tribunal (MWDT) as briefly stated below:
In an affidavit dated 27.09.2006 filed in O.S. 4 of 2006 before the Supreme Court, Karnataka had made a statement and given an undertaking that Karnataka would not actually divert or utilize the waters under the Kalasa Bhandura project till the next date of hearing. Recording Karnataka’s statement, the S.C. granted interim relief to Goa in an order dated 30.04.2008 to the effect that Karnataka would not actually utilize the waters or divert the waters under the Kalasa-Bhandura project till the next date of hearing.
By a further order dated 27.08.2008, the Supreme Court continued its Order of 30.04.2008. During the course of its hearings on the dispute, the MWDT had passed several orders of injunction against Karnataka to the effect that Karnataka would not divert or actually utilize the Mahadayi river waters.
By diverting the water to the Malaprabha basin from Kalasanallahthrough the interconnecting channel, Karnataka had violated the orders of the Supreme Court and the MWDT.
Goa, therefore, filed this Contempt Petition on 08.08.2018.
The following prayers were made in the Petition:
- a) To direct issuance of notice to the State of Karnataka and the other contemnors to show cause as to why contempt proceedings should not be initiated against them for wilfully and deliberately violating/not complying with the orders of the Supreme Court dated 30.04.2008 and 27.08.2008 passed in O.S. No. 4 of 2006.
- b) To punish the contemnors for contempt of the Supreme Court.
- c) To pass such other further orders as the Court deemed fit and proper or necessary in the facts and circumstances of the case.
I.A. No. 9810 of 2020 in Contempt Petition 2113/2018
Newspapers further reported on 18.12.2019 that on account of the diversions made by Karnataka, the Barazan falls on the Surla River at Barazan village in Sattaritaluka had dwindled. Goa Government officials confirmed the reports by undertaking field inspection immediately thereafter. It was opined by Goa’s Senior Counsel that this latest fallout of the diversion was but a continuation of the previous act of contempt of Karnataka.
Accordingly, Goa filed an Interlocutory Application registered under No. 9810/2020 on Contempt Petition No. 2113/2018.The IA prayed inter alia for an order directing a joint inspection of the diversion site by the officials of Goa and Karnataka under the leadership of either an Assessor of the Tribunal or a Chief Engineer-level officer of the Central Water Commission (C.W.C.). Since the I.A. is tagged with the Contempt Petition, it will be heard and decided along with the Contempt Petition.
- Contempt Petition No. 0724/2020
An English daily reported that Karnataka had changed the bed gradient of Kalasanallah. It reported that although the natural flow of the nallah is from Kankumbi towards Goa, due to the tampering of the nallah bed gradient, the flow direction had reversed towards the inter-connecting channel that later joins the Malaprabha River. On 06.09.2020 Goa Government officials inspected the site.
The ReportReport confirmed that Karnataka had diverted the waters of the Mahadayi River to the Malaprabha basin, thereby preventing the natural flow of water towards the Surla River in Goa State.
Following were the observations:
- i. The Kalasa River water, which was flowing towards Goa State, was diverted at least partly to the Malaprabha basin in Karnataka State by providing a reverse gradient to the bed of the Kalasa River.
Full flow of the two nallahs at Ch. 180 mts and Ch. 630 mts were diverted to the Malaprabha basin from the Mahadayi basin.
- Obstructions in the raising of the river bed by filling were done in the Kalasa River bed adjacent to the nallah at Ch.180 mts. This resulted in no flow of water towards Goa, and the flow remained diverted into the Malaprabha basin through the already constructed R.C.C. Box conduit. Tampering of the bed and banks of the nallah at Ch. 180 mts. was observed, and the excavated earth was seen dumped in the Kalasa river course obstructing natural flow towards the Goa side.
iii. A pool of stagnant water was observed in the Kalasa River bed towards Goa at Ch. 150 mts due to the diversion of nallah water at Ch.180 mts and Ch. 630m, and there was no flow towards Goa. This stagnant water was due to the tampering of the Kalasa river bed gradient with the reverse flow towards the Malaprabha basin.
- The Kalasa River from the confluence of the nallah at Ch. 180 mts towards Goa was seen to be completely dry. The guided reverse flow, coupled with the deepening of the nallah bed, appeared to be the reason for no flow towards the Goa side. Even after heavy rainfall that monsoon, no flood marks or tell tales were observed in the river course of the Kalasa River, indicating no flow towards Goa. This suggested that substantial monsoon flow diversion from Mahadayi waters to the Malaprabha basin had resulted during the recently concluded monsoons.
- Inspection carried out at Ch. 3165 mts at the end of the R.C.C. box conduits out falling in the Malaprabha basin showed that the diverted waters of the two nallahs at Ch. 180 mts and Ch. 630 mts. flowedthrough theinter-connecting open cut canal from Ch. 180 mts to Ch. 690 mts and the two vents of the cut& cover R.C.C. box conduits from Ch. 690 mts to Ch. 3165 mts and entered the open cut canal, which subsequently joins the Malaprabha River.
This action of Karnataka constituted a willful and deliberate violation and/or disobedience of the Award of the MWDT dated 14.08.2018 as well as the Order of the Supreme Court dated 02.03.2020 passed in IA No. 34986/2020 in S.L.P. (C) No. 19312/2019. Goa, therefore, filed this Contempt Petition on 06.10.2020, which was registered on 18.12.2020.
Following are the prayers in the Petition:
(a) To direct issuance of notice to Karnataka to show cause as to why appropriate contempt proceedings should not be initiated against them for having wilfully and deliberately violated/not complied with the Award dated 14.08.2018 passed by the MWDT and Order dated 02.03.2020 passed by the Supreme Court in IA No. 34986 of 2020 in S.L.P. (C) No. 19312 of 2019;
(b) To punish the contemnors for having committed contempt of the Supreme Court;
(c) To pass such other and/or further Order (s) as deemed fit and proper in the facts and circumstances of the case.
The Supreme Court heard the Petition on 22.02.2021 and passed an order.
In order to verify the allegations of violation, the Supreme Court directed the constitution of a Joint Monitoring Team comprising Superintending Engineers of Goa, Karnataka and Maharashtra.
The Court further directed that the Team should jointly visit the site to verify the allegations and to submit a report on its inspection.
The Team, constituted on the directions of the Supreme Court, visited the site on 19.03.2021 and met again on 26.03.2021 to finalize its ReportReport.
Goa’s representative Officer differed substantially from the Karnataka representative as to the scope of the inspection.
He also dissented on the contents and the manner of the drawing up of the ReportReport. Consequently, the Team could not evolve a consensus for a joint report. All three states, therefore, decided to file separate reports.
At the hearing on 05.04.2021, the Supreme Court noted that Karnataka had already submitted its ReportReport while Goa and Maharashtra were yet to submit their reports. The Court ordered the two States to file their reports within a week. Goa filed its ReportReport in the Supreme Court on 08.04.2021. Maharashtra has also filed its ReportReport.
- SLP (C) No. 19312/2019
The MWDT declared its Award on 14.08.2018. Goa decided to file an appeal to the Supreme Court from the Award for the following reasons:
- a) The MWDT has grossly overestimated the 75% dependable water availability of the Mahadayi river basin.
- b) The MWDT has permitted Karnataka to divert 3.9 TMC of water outsidethe basin from the Mahadayi basin.
- c) Against Goa’s demand of 94.02 TMC of water for consumptive use, the MWDT has allocated only 33.395 TMC, and d) The MWDT has made no allocation for the environment.
The States of Karnataka and Maharashtra also filed their respective S.L.P.s challenging the Award of the Tribunal before the Hon. Supreme Court in November 2018. S.L.P.s of the three States have been clubbed together for a joint hearing.
The Petition was heard on 15.07.2020 virtually. Because of the voluminous documentation involved in the case, Goa requested the adjournment of the hearing to a future date when physical hearings are possible.
In the Order passed after the hearing on the Contempt Petition No.0724/2020 held virtually on 22.02.2021, the Supreme Court ordered the S.L.P. to be listed along with the Contempt Petition for further directions.
The matter came up for hearing on 22.02.2021 when the Supreme Court gave some directions on filing papers.
I.A. No. 34986/2020 in S.L.P. (C) No. 19312/2019
Goa decided to file this I.A. for the following reasons:
- i) Goa has filed S.L.P. No. 19312/2019 for grievances against the Award of the MWDT, which have been briefly explained above.
ii)Life of the MWDT had been extended up to 19.08.2020 to decide the Clarification applications filed under Section 5(3) of Inter-state River Water Disputes Act, 1956 before the MWDT by Goa, Karnataka, Maharashtra and the Union of India. There was, therefore, a distinct possibility of the Award being modified at the conclusion of the hearings on the applications.
iii) In the orders passed on 20.02.2020 on I.A. No.109720/2019 in S.L.P. (C) No. 33018/2018 filed by Karnataka, the Supreme Court directed the Union of India to notify the Award of the MWDT of 14.08.2018. The Union of India published the Award in GoI’s Extraordinary Gazette dated 27.02.2020.
- iv) Despite the notification of the Award by the Union of India, the Interim Order of the MWDT dated 17.04.2014 would continue to be operative.
Briefly, the Order, which has also been incorporated in the Award provides for the following directions to Karnataka:
- a) To refrain from diverting or actually utilizing the waters of the Mahadayi basin under the Kalasa-Bhandura projects till the disputes are finally adjudicated by the Tribunal.
- b) To construct plugs in brick masonry embankment in the two vents of the inter-connecting canal partially constructed by it to prevent the automatic diversion of water from the Mahadayi basin to the Malaprabha basin. c) To fill up the excavations made along the ridge line separating the Mahadayi and Malaprabha basins for construction of the interconnecting canal so as to restore the ridge line to its pre-existing condition.
In addition, the Supreme Court ordered the constitution of a Joint Monitoring Team comprising officials of the rank of Superintending Engineers of Goa, Karnataka and Maharashtra to monitor the works to be undertaken by Karnataka as per its directions. The Tribunal also directed the Team to submit an interim report and a final report on the completion of the works.
Clauses X, XI and XII of paragraph 1419 of the Award and Final Decision of the MWDT provide as follows: Clause-X The Order passed by this Tribunal on 17.4.2014, while disposing of I.A. No. 1 of 2012 filed by the State of Goa, will continue to be operative and will stand vacated and/or revoked only after
- The State of Karnataka prepares a revised Detailed Project Report (D.P.R.) for consumptive uses within the basin and/or diversion of water outside the basin, including the reservoir losses etc., for not more than 1.72 tmc at the proposed Kalasa dam site as permitted under Clause IX;
- The revised D.P.R. of the Diversion Scheme at the Kalasa Dam site is appraised by the Central Agencies and is duly cleared;
iii. All mandatory clearances are obtained as per law; and iv. The State of Karnataka is allowed to take up works as per duly approved revised D.P.R. either by the Mahadayi Water Management Authority or the Union Government.
Clause-XI The Order passed by this Tribunal on 11.2.2015, while disposing of I.A. No. 28 of 2012 filed by the State of Goa, will continue to be operative and will stand vacated and/or revoked only after:
- The State of Maharashtra prepares a revised Detailed Project Report (D.P.R.) of the Virdi Large MI Project, limiting to consumptive use of 0.56 tmc of water, including reservoir losses etc., as permitted under Clause IX;
- The revised D.P.R. of the Virdi Large MI Project is appraised by the Central Agencies and is duly cleared;
iii. All mandatory clearances are obtained as per law; and
- The State of Maharashtra is allowed to take up works as per duly approved revised D.P.R. either by the Mahadayi Water Management Authority or the Union Government. Clause-XII, The Central Government, shall constitute an Authority, called ‘Mahadayi Water Management Authority to implement the ReportReport and final decision of Mahadayi Water Disputes Tribunal with functions and compositions etc., as mentioned in para 1350 to para 1369 of this ReportReport. Immediately after the notification of the Award by the Union of India, without fulfilling the pre-conditions laid down under Clause X, Karnataka made public announcements that it would proceed to carry out the works.
The effect of this decision would be to divert water from the Mahadayi basin without complying with Clause X of the Award.
For these above reasons, Goa decided to file this I.A. with the following prayers:
(a) To pass an order restraining Karnatakafrom from taking any steps and/or from carrying out any activity in the purported implementation of the Award dated 14.08.2018 of the Tribunal;
(b) To pass an order restraining Karnataka from acting upon any and/or all clearances/approvals obtained from the Central Agencies/Authorities/Union Government with respect to the consumptive uses within the basin and/or diversion of water outside the basin at the proposed Kalasa dam site or at all; and
(c) To pass an order directing a joint inspection by the respective officials of Goa and Karnataka headed either by an Assessor from the Mahadayi Water Disputes Tribunal or a Chief Engineer level officer of the Central Water Commission of the site viz. Kalasa river at Kanakumbi village or near about thereto on such day as may be deemed fit;
(d) To pass such other and/or further Order (s) as may be deemed fit and proper in the facts and circumstances of the case.
In its Order passed on the IA on 02.03.2020, the Supreme Court drew attention to Clauses X, XI and XII under paragraph 1419 of the Award and Final Decision of the MWDT.
It held that in view of the directions given in these clauses, the Order passed by the MWDT on 17.04.2014 while disposing of IA No. 1 of 2012 filed by Goa continued in operation subject to the stipulated conditions.
The Court held that there was no reason to entertain the I.A. and accordingly disposed of the I.A.
All the above petitions are clubbed and likely to come up for hearing before the Hon’ble Supreme Court of India.
Interlocutory Application No. 10024 of 2023 in S.L.P. (C) 19312 of 2019 An Interlocutory Application No. 10024 of 2023 in S.L.P. (C) 19312 of 2019 is filed before the Supreme Court on 13.01.2023, praying to:
- issue appropriate directions restraining Karnataka from diverting water from the Mhadei river basin including form the Kalasa and Bhandura rivulets, without first obtaining the requisite approval under the Wildlife Protection Act, 1972.
- Issue appropriate directions granting a stay to the construction activities ongoing at the Kalasa-Bhandura project site. c. Issue appropriate directions directing Karnataka to disclose to the applicant State of Goa a copy of the Revised D.P.R. as approved by the C.W.C. and the Order of the C.W.C. approving the Revised D.P.R.s. d. Issue appropriate directions granting ad-interim reliefs in terms of the prayer above.
Actions in the Mahadayi Tribunal (MWDT)
The MWDT commenced its proceedings on 06.09.2012 and concluded after holding 112 hearings on 14.08.2018 by declaring its Award running into 12 volumes of 2711 pages.
The Tribunal framed 70 issues for adjudication and decision.
The main decisions of the Award areas under:-
- The Tribunal has worked out the total yield of the Mahadayi River as 188.06 TMC at 75% dependability over the total basin area of 2032Sq. Km.
- Karnataka has been allotted 3.9TMC for out-of-basin diversion with certain conditions and 1.5TMC for in-basin consumptive uses. It has also been allotted 8.02 TMC of water for non-consumptive use within the basin for hydro-power generation at the proposed Mahadayi Hydro Power Project.
- Maharashtra is allotted 1.33TMC for in-basin use.
- Goa is allotted 24 T.M.C. of water for the 59 new projects in the basin, which are identified in the Mandovi Master Plan 1999. This is in addition to the protection of the existing use of 9.395 TMC of water.
- The Award could be reviewed or revised by competent Authority or Tribunal any time after 31st August 2048 i.e. after 30 years.
Special attention should be drawn to Clauses X, XI, and XII of paragraph 1419 of the Award and Final Decision of the MWDT, which continue the operation of the Order of the Tribunal dated 17.04.2014 passed on IA No. 1 of 2012. The Order will stand vacated and/or revoked only after the conditions spelt out in the clauses are satisfied.
Disobedience Petition I.A. No.1 of 2018
Following the newspaper reports of July 2018 of the diversion of water by Karnataka from the Kalasa nallah to the Malaprabha River and the subsequent confirmation of the reports by Goa Government officials on the same day, Goa brought an action against Karnataka in the Tribunal in addition to the contempt proceedings in the Supreme Court.
Under the provisions of the Civil Procedure Code and the Interstate River Water Disputes Act, 1956, Goa sought action against Karnataka inter alia for breach and disobedience of the Order of the injunction of the Tribunal and for enforcement of the Order of Injunction.
Accordingly, Goa filed a Disobedience Petition as IA No. 1 of 2018 against Karnataka on 20.08.2018. In the Order passed on the IA on 09.05.2019, the Tribunal took note of the fact that Contempt Petition No. 2113/2018, filed by Goa before the Supreme Court, was pending.
The Tribunal further took into account the fact that the Senior Counsels appearing for all the three states of Goa, Karnataka, and Maharashtra had requested an adjournment of the I.A. till the disposal of the Contempt proceedings before the Supreme Court.
In addition, keeping in view the demands of propriety, the Tribunal decided to adjourn the proceedings on the Disobedience Petition till the disposal of the Contempt Petition by the Supreme Court.
The term of the Tribunal has been extended till 19th August 2023.
Application to seek explanation to the Award of the MWDT
On 20.09.2018, Goa filed an application before the MWDT under Section 5(3) of the Inter-State River Water Disputes (ISRWD) Act, 1956, to seek explanations for the Award passed by the MWDT on 14.08.2018. The grounds for filing the application are as under:-
- i) Certain matters in the Award require an explanation from the Tribunal.
- ii) Certain matters in the Award consider certain aspects which were not part of the original reference. The direction in this regard is therefore necessitated.
iii) In the absence of the guidance of the Tribunal, there might be a situation where Karnataka and Maharashtra, by taking advantage of certain aspects of the Award, may not interpret the Award in the letter and spirit intended by the Tribunal.
- iv) Explanation and guidance of the Tribunal are required for better implementation, execution and interpretation of the Award.
Considering the application, the Tribunal found that all the three states of Goa, Karnataka and Maharashtra had challenged its Award by filing S.L.P.s in the Supreme Court, which was pending adjudication and final disposal.
The Tribunal also referred to the Supreme Court’s Order of 20.02.2020 dismissing as withdrawn IA no. 14182 of 2020 filed by Karnataka in S.L.P. (C) 33018/2018for impleadment of the Union of India.
Considering these facts and keeping in view the demands of propriety, the Tribunal considered it appropriate to adjourn the hearing of the reference sine die.