Case Note & Summary
The dispute arose from the allocation of 87.60 million cubic meters (MCM) of water from the Upper Wardha Dam in Amravati district, Maharashtra, to a thermal power project of M/s. Sofia Power Company Ltd. (now Indiabulls Power Ltd.). The High Power Committee of the Maharashtra Government approved the allocation on 21 February 2008, and the Vidarbha Irrigation Development Corporation confirmed it on 22 February 2008. The petitioners, including the Society for Backlog Removal & Development, challenged the allocation, contending that it would deprive irrigation for 23,219 hectares and violated the Governor’s directives under Article 371(2) of the Constitution for removal of regional imbalance in Vidarbha. The industry had invested substantial sums, secured environmental clearance, and obtained coal linkages. A group of writ petitions and public interest litigations were filed, some challenging the allocation and others the constitutional validity of Article 371(2) and the Governor’s directives. After transfer from the Nagpur Bench to the Principal Seat in Mumbai on 30 March 2011, the Bombay High Court, on 4 October 2012, with consent of the parties, directed supply of up to 87.60 MCM water to the power plant for the current year 2012-13, as adequate water was available due to rainfall. The court then formulated four issues for determination: (i) whether the allocation decision was illegal or arbitrary and violated the Governor’s directives; (ii) whether the petitioners could challenge the irrigation water quantification of 200.203 MCM; (iii) which authority would decide future reallocation if water was insufficient; and (iv) whether the Governor’s directives were binding. Arguments on these issues began, with the petitioners pointing to the reduction in irrigated area and the respondents citing payment of irrigation restoration charges by the industry. The provided judgment text ends before the court’s analysis and decision on these issues, leaving the final determination unrecorded in the extract.
Issue of Consideration
Whether the decision to allocate water to industry was illegal or arbitrary and in violation of Governor's directives under Article 371(2); whether petitioners can challenge the quantification of water needed for irrigation; which authority decides future water reallocation; whether Governor's directives are binding
Law Points
- interpretation of Article 371(2)
- binding nature of Governor's directives
- water allocation priority
- judicial review of administrative decisions on water allocation
Case Details
2013 LawText (BOM) (03) 29
Writ Petition No.757 of 2011 and connected matters
Mohit S. Shah, C.J., Anoop V. Mohta, J.
Mr. S.G. Aney, Sr. Advocate with Mr. Ashutosh Dharmadhikari, Mr. D.J. Khambatta, Advocate General with Mr. P.G. Lad, AGP and Ms. Nina R. Nariman, Mr. S.G. Jagtap, Ms. Shyamali Gadre, Mr. Mukul Rohatgi & Mr. Vineet Naik, Mr. Aspi Chinoy, Mr. Vishwajit Sawant
Society for Backlog Removal & Development & ors.
State of Maharashtra & ors.
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Nature of Litigation
Writ petitions and public interest litigations challenging allocation of water from Upper Wardha Dam for industrial use and constitutional validity of Article 371(2) of the Constitution of India
Remedy Sought
Quashing of decision to allocate 87.60 MCM water to thermal power project, direction not to allocate water to new industries until irrigation backlog removed, and challenge to constitutional validity of Article 371(2) and Governor's directives
Filing Reason
Allocation of water to industry was alleged to be at the cost of irrigation and in violation of Governor's directives under Article 371(2) for removal of regional imbalance; industry and other petitioners challenged the constitutional provision itself
Previous Decisions
High Power Committee approved allocation on 2008-02-21; Vidarbha Irrigation Development Corporation confirmed on 2008-02-22; writ petition filed in 2010; cases transferred from Nagpur Bench to Principal Seat on 2011-03-30; interim order on 2012-10-04 directing water supply for 2012-13
Issues
Whether the decision of the State Government and the Vidharbh Irrigation Development Corporation in February 2008 to allocate 87.60 MCM of water to respondent No.5 was illegal or arbitrary and whether it was in violation of any directives of the Governor under Article 371(2) of the Constitution.
Whether the petitioners are entitled to challenge in these proceedings the decision of the State Government and the Vidarbha Irrigation Development Corporation that for irrigating 70,000 hectares of land in Vidarbha (50000 in Amaravati district and 20000 in Wardha District), the required quantity of water will be 200.203 MCM.
If the quantity of live stock of water in the Upper Wardha dam is not sufficient in future, which authority will take decision about reallocation of water from the Upper Wardha dam? Whether this allocation is to be made by the Governor of Maharashtra in exercise of powers under Article 371(2) of the Constitution as contended by the petitioners or whether it is to be made by the State Government and the authorities under the Maharashtra Water Resources Regulatory Authority Act, 2005, as contended on behalf of the State Government.
Whether the directives given by the Governor under Article 371(2) in respect of physical backlog of irrigation facilities in Vidarbha region are binding on the State Government and its agencies.
Submissions/Arguments
Petitioners contended that the High Power Committee’s decision indicated that 23,219 hectares of land would be deprived of irrigation, thus admitting that allocation was at the cost of irrigation.
Petitioners argued that the Third Revised Estimate (2006) assessed water need for irrigation at 302.78 MCM, and actual supply in 2011-12 was 328 MCM, so reducing it to 202.203 MCM in the Fourth Revised Estimate (2009) was unjustified.
Respondents submitted that the reference to 23,219 hectares was only for computing irrigation restoration charges payable by the industry, not an admission of deprivation.
Respondents stated that water supply for irrigation was adequate and that the industry would pay irrigation restoration charges and water bills.
Judgment Excerpts
Competing claims of agriculture and industry over the water in Upper Wardha Dam in Amravati district in Vidharbh region of Maharashtra have given rise to this group of petitions, which also raise important questions about interpretation of Article 371(2) of the Constitution of India, under which the President of India has made an order with respect to the State of Maharashtra providing for special responsibility of the Governor of Maharashtra for removal of regional imbalance amongst areas of Vidarbha, Marathwada and rest of Maharashtra.
With the consent of learned counsel for parties, State of Maharashtra and Vidarbha Irrigation Development Corporation were directed to supply water to the power plant of respondent No.5 at Amravati as per the Water Agreement dated 22 May 2012 upto maximum 87.60 MCM, in the current year 2012-13 ending on 31 May 2013.
Learned counsel for respondent No.5 states that in view of commencement of water supply, respondent No.5 will start generating electricity from this month i.e. in March 2013.
Procedural History
Society for Backlog Removal & Development filed Writ Petition No. 1038 of 2010 before Nagpur Bench of Bombay High Court challenging allocation of water. Indiabulls Power Ltd. filed Writ Petition No. 1089 of 2010 challenging constitutional validity of Article 371(2). Two public interest litigations (PIL (L) No. 19 of 2011 and PIL (L) No. 20 of 2011) were filed before the Principal Seat challenging Governor’s directives. By order dated 30 March 2011, the Nagpur Bench transferred the writ petitions to the Principal Seat to be heard with the PILs. On 4 October 2012, the court, with consent, directed water supply for the year 2012-13. The matters were heard together on 1 and 2 March 2013 and judgment reserved.
Acts & Sections
- Constitution of India: Article 371(2)
- Maharashtra Water Resources Regulatory Authority Act, 2005:
- Societies Registration Act, 1860:
