T.S.SIVAGNANAM, J., This writ petition styled as a public interest litigation has been filed by a political functionary stated to be its District Convener and it's Spokesman.
2. The petitioner seeks for issuance of a writ of certiorarified mandamus to quash the proceedings of the third respondent / Executive Engineer, Public Works Department, Tamirabharani Division, Tirunelveli District, dated 09.03.2017, and to forbear the respondents 1 to 5 from supplying water from river Tamirabarani to the respondents 6 to 30 for commercial or industrial use and to direct the respondents 1 to 4 to divert the water to Mannur Tank in Tirunelveli District.
3. The impugned proceedings, dated 09.03.2017, is a response to the petitioner's representation, dated 09.01.2017, submitted to the fourth respondent / District Collector, Tirunelveli, on the Grievance Day. In the said representation, the relief sought for is identical to the prayer in this writ petition. The third respondent informed the petitioner that in the light of the order passed by this Court, in W.P.(MD) No.20558 of 2016, there is no embargo for supply of water to the respondents 6 to 30.
4. The learned counsel appearing for the petitioner would contend that the stand taken by the third respondent is wholly unsustainable and the said writ petition, namely, W.P.(MD) No.20558 of 2016 was dismissed only on the ground of maintainability and even while doing so, the Division Bench observed that it is open to the Government to curtail SIPCOT from drawing water for supplying to the industries in the said Industrial Park. Therefore, it is submitted that the impugned order is an outcome of non-application of mind without taking note of the concern expressed by the petitioner in his representation.
5. It is further submitted that Public Trust Doctrine demands water should be used for common people in preference to the multinational corporate companies, who sell the national resources for their commercial gains. It is further submitted that the District Collector has no jurisdiction to regulate the use of the water from river Tamirabarani as the Water Resources Control and Review Council (WRCRC) is the competent authority and any order passed by the District Collector is without jurisdiction. In support of his contention, the learned counsel placed reliance on the decision of the Division Bench of this Court in S.MP.Amalan v. State of Tamilnadu & others, reported in 2014-3-L.W.227.
6. The learned Senior Counsels appearing for the respondents 7 and 8 submitted that the present writ petition is not maintainable as the Court in the earlier Public Interest Litigation has in-depth considered the entire issue and passed a detailed order, which gives sufficient leverage to the authorities to regulate the use of water. Further, it is submitted that it is incorrect on the part of the petitioner to state that the earlier writ petition was dismissed only on the ground of maintainability, but that was one of the three issues decided and the Division Bench elaborately considered the stand taken by the Public Works Department and had dismissed the writ petition and the present writ petition is liable to be dismissed on the ground of estoppel, at least against the respondents 7 and 8, who were parties to the earlier litigation.
7. Further, it is submitted that in the light of the recent decision of the Honourable Supreme Court in Kuchchh Jal Sankat Nivaran Samiti v. State of Gujarat, reported in (2013) 12 SCC 226, this Court would not encroach upon the field earmarked for the executive and interfere with the policy decision especially with regard to regulating the use of water. In this regard, the learned Senior Counsel has drawn the attention of this Court to various paragraphs of the common order of the Division Bench, dated 02.03.2017, in W.P.(MD) Nos.22425 of 2015 and 20558 of 2016 (M.Appavu, Ex.M.L.A., and another vs. The Chief Secretary to Government of Tamil Nadu and others).
8. Further, it is submitted that the contention raised by the petitioner that the District Collector has no jurisdiction is untenable and obviously he would be acting on the instructions of the Government and the petitioner himself had submitted representation to the District Collector, which was forwarded to the third respondent, who has passed the impugned proceedings and therefore, such a plea raised by the petitioner is devoid of merits.
9. The learned Senior Counsels further submitted that their respective clients had been invited to establish industries in the said Industrial Estate and there was a contract to supply a minimum quantity of water and this supply of water has been periodically reduced and constantly regulated by the District Collector and the case as projected by the petitioner does not merit consideration.
10. The learned counsels appearing for the other industries submitted that a meagre amount of water is supplied from the river Tamirabharani to SIPCOT Industrial Estate and the Industrial Estate monitors the supply of water and the units are purchasing water at very high cost and the contention raised by the petitioner that water supply to the respondents 6 to 30 should be stopped is impracticable and it would amount to shutting down of the industries. Further, it is submitted that the water purchased by the respondent Units from private suppliers at high cost is drawn from the river, therefore, the present stand taken by the petitioner is counter productive.
11. The learned Special Government Pleader submitted that effective steps are being taken by the Government and the District administration to regulate the drawl of water, the same is being duly monitored on a regular basis and there is no arbitrariness in the manner in which the water situation is managed.
12. We have elaborately heard the learned counsels for the parties and carefully perused the materials placed on record.
13. After going through the common order, dated 02.03.2017, passed in W.P.(MD) Nos.22425 of 2015 and 20558 of 2016 (cited supra), we find that the earlier Public Interest Litigation were filed by two persons, namely, M.Appavu, Ex.Member of Legislative Assembly and an Advocate. The eighth respondent raised a contention that the Advocate, who was the writ petitioner in W.P.(MD) No.20558 of 2016, was earlier their counsel and there were certain allegations against him. However, we see that it was not only the ground, on which the writ petition came to be dismissed / disposed of. The Division Bench took note of the contention raised by all the parties and the technical details, which were furnished by the Water Resource Organization, and the various Government Orders and held that the Water Utilization Committee has permitted SIPCOT to draw water. Further, it is observed that if the Government feels that there is scarcity of water, the Government can curtail the SIPCOT from drawing water. At this stage, it would be beneficial to refer certain paragraphs of the said common order, which reads as follows: ?5.1. The Government of Tamil Nadu through SIPCOT with the sole object of establishing and promoting industries for the purpose of generation of employment opportunity and also to improve the economy of the State, ordered for setting up factories including manufacturing of drinking beverages or drinking water.....?
?18.The learned senior counsel for the sixth respondent has also cited the decision of the Hon'ble Supreme Court in Kuchchh Jal Sankat Nivaran Samiti and others v. State of Gujarat and another, reported in (2013) 12 Supreme Court Cases 226 and contended that judicial review as to contractual powers of Government bodies would apply in order to prevent arbitrariness or favoritism. He further argued that policy decision of the Government cannot be interfered with unless it is inconsistent with the constitutional laws or is arbitrary or irrational. In the above judgment, the Hon'ble Supreme Court has held as follows:
?12. We have given out most anxious consideration to the rival submissions and we find substance in the submission of Mr.Divan. We are conscious of the fact that there is wide separation of powers between the different limbs of the State and, therefore, it is expected of this Court to exercise judicial restraint and not encroach upon the executive or legislative domain. What the appellants in substance are asking this Court to do is to conduct a comparative study and hold that the policy of distribution of water is bad. We are afraid, we do not have the expertise of wisdom to analyse the same. It entails intricate economic choices and though this Court tends to believe that it is expert of experts but this principle has inherent limitation. True it is that the Court is entitled to analyse the legal validity of the different means of distribution but it cannot and will not term a particular policy as fairer than the other. We are of the opinion that the matters affecting the policy and requiring technical expertise be better left to the decision of those who are entrusted and qualified to address the same. This Court shall step in only when it finds that the policy is inconsistent laws or is arbitrary or irrational.
13. Candidly speaking, we do not have the expertise to law down the policy for distribution of water within the State. It involves collection of various data which is variable and many a times policy formulated will have political overtones. It may require a political decision with which the Court has no concern so long it is within the constitutional limits. Even if we assume that this Court has the expertise, it will not encroach upon the field earmarked for the executive. If the policy of the Government, in the opinion of the sovereign, is unreasonable, the remedy is to disapprove the same during election. In respect of policy, the Court has very limited jurisdiction. A dispute, in our opinion, shall not be appropriate for adjudication by this Court when it involves multiple variable and interlocking factors, decision on each of which has bearing on others.? Bearing this judgment also in mind, let this Court analyse the divergent contentions of both the parties.?
?19.According to the Government, the irrigation activities and combined water supply schemes will not suffer due to the supply of water to the Sipcot industries. Water balanced details of Tamirabarani system is given by the Government as follows:
20.According to the Government, quantity of water utilised by the sixth and seventh respondents is 43 Mcft only, which is only 0.80% of surplus water, which goes to the sea as waste.?
?20.1. According to the Government, the Micro level reappraisal study of Tamirabarani river basin was made during 2014-2015 with available statistical data in water sector and it was published in March 2015. As per the studies, total water potential of Tamirabarani is given as follows:
Surface water potential : 883.20 Mcum or 31.19 Mcft Ground water potential : 1029.44 Mcum or 36.355Mcft Total water potential of the basin : 1912.64 Mcum or 67.545Mcft
20.2. The total water demand in Tamirabarani river basin for different planning stages is given thus:
Sl.
No.
Type of Demand Total Demand in Mcum 2014 2020 2023 2030 2040
1. Domestic 134.9 149.94 158.1 178.98 213.84
2. Irrigation (including losses 1402.56 1402.56 1402.56 1402.56 1402.56
3. Live Stock 39.6 39.18 39.2 39.67 41.37
4. Industries 25.33 37.05 42.92 56.57 76.09
5. Ecological 4.42 8.83 8.83 8.83 8.83 Total 1606.81 1637.57 1651.62 1686.61 1742.70 20.3. Water balance in the year 2014 has been calculated as follows: Water Potential for the year 1912.64 Mcum or 67,545 Mcft Water demand for the year 1606.81 Mcum or 56,744 Mcft Surplus 305.83 Mcum or 10,800 Mcft %Surplus with respect to potential 16.0% ?24.Considering the surplus water flowing into the sea as per the study report, minimum drawal of water by the sixth and seventh respondents pursuant to the contractual agreement and the generation of employment in the area, this Court is of the view that the allegations made by the petitioners do not show any lamentable state of affairs. Further, there is absolutely no hindrance in utilising the river water by the common people and there is no deviation of doctrine of public trust. As rightly pointed out by the learned senior counsel for the sixth respondent, the Government permitted the Sipcot after getting approval from the water utilisation committee and the Sipcot in turn entered into a contract for supply of water.?
?25.....As per the condition, if the Government feels that there is scarcity of water, Government can curtail the Sipcot from drawing water. Therefore, this Court does not find either arbitrariness or deviation from the provisions of constitutional laws in allowing the sixth and seventh respondents drawing water from the surface of Tamirabarani river through Sipcot.
14. From the above, it is crystal clear that the Division Bench had undertaken an elaborate exercise before it came to the conclusion with regard to usage of water and supply of water to the Industries in the SIPCOT Industrial Park. The Division Bench took note of the decision of the Honourable Supreme Court in the case of Kuchchh Jal Sankat Nivaran Samiti (cited supra), which also arose out of a public interest litigation filed by a non-political organization with regard to the allocation of water from Sardar Sarovar Project to the district of Kutch in the State of Gujarat. The Honourable Supreme Court pointed out that Courts do not have the expertise to lay down policy to distribute water within the State as it involves collection of various data, which is variable and many a times policy formulated will have political overtones. If the policy of the Government, in the opinion of the sovereign, is unreasonable, the remedy is to disapprove the same during election. In respect of policy, the Court has very limited jurisdiction. The Supreme Court also noted the observations made by it while disposing of an interlocutory application in the said matter, wherein it was observed that the prayer for allocation of adequate water in Kuchchh District is not one which can be a matter of judicial review. It is for the executive authorities to look into this matter and as held in the case of Aravali Golf Club v. Chander Hass, reported in (2008) 1 SCC 683, there must be judicial restraint in such matters.
15. The learned counsel appearing for the petitioner submitted that in the case of S.MP.Amalan (cited supra), the Division Bench took note of the decision in the case of Kuchchh Jal Sankat Nivaran Samiti (cited supra) and made certain pointed observations and the said case also arose out of a public interest litigation pertaining to the release and supply of water from Vaigai reservoir. On a reading of the order passed in the said public interest litigation, more particularly, paragraph No.24 therein, the Division Bench taking note of the decision of the Honourable Supreme Court in the case of Kuchchh Jal Sankat Nivaran Samiti (cited supra) held that there can be no doubt on the settled legal proposition that the Court will not step into and impose its views on the expertise or wisdom of the authorities, who control and regulate water supply. The respondent authorities are competent enough to do the same in terms of the Rules of Regulations of the year 1935, as amended. It was further observed that it is only when these Rules of Regulations are not scrupulously followed or given a go-bye, the Court will step in and act in favour of one or other parties, who plead that there is violation of the said rules of regulations or if the action of the authority is arbitrary or discriminatory. In the instant case, except contending that the District Collector cannot take action, the petitioner has not able to pinpoint as to which rule or regulation has been contravened by the authorities. We, except by stating that the District Collector has no jurisdiction and it is a Committee headed by the Honourable Chief Minister, reiterate that in the earlier round of litigation, the Court analyzed the steps taken by the authorities and pointed out that the SIPCOT was permitted by the Water Utilisation Committee to draw water and the order passed in favour of the SIPCOT for supply of water is not a rigid formula. The same constantly fluctuates depending upon the inflow of water into the river. The quantum of inflow of water depends on various factors and how the water has to be utilised is best left to the decision of the authorities. In the given facts and circumstances, we find that there is no arbitrariness in the distribution of water and the SIPCOT Industrial Estate is being given only 0.80% of the total allocation of water.
16. The Chief Engineer & Director, Public Works Department, Institute for Water Studies, Taramani, Chennai, filed a counter affidavit mentioning about the total water potential basin details in two tabulated statements pertaining to water balance at 75% dependability and water balance at 90% dependability and they have stated as follows: ?Hence it is evident that whenever the Basin experiences very low fainfall beyond 75% dependability, there will be deficit in water availability. Accordingly, when water scarcity arises during such years, the water allocation made to the bulk users / industries can be reconsidered for reduction or cancellation. Hence, during the period of such acute scarcity, the competent authority can take appropriate action to reduce or cancel the supply of water to bulk users, considering the sustainable integrated socio economic development.
.....
The statistical analysis of the surplus flow to sea from Srivaikundam Anicut at 75% dependability based on the flow measurements made during the past 45 years indicates a surplus of 57.60 Mcum or 2034 Mcft. Hence it has been recommended to conserve the surface water in the upper reaches by forming new tanks / ponds according to the topographical feasibility of the area to avoid surplus out flow into sea as well as by transferring the surplus water of Tamiraparani river basin to adjoining basins, namely, Nambiyar and Karumeniar basins wherever require by intra linking of rivers.?
17. As observed by the Honourable Supreme Court, the regulation of the use of water is of very complex matter and the Court in exercise of its jurisdiction under
Article 226 of the Constitution of India would lack expertise to express its views as to in what manner the authority should take decisions. We find from the order passed by the District Collector, Tirunelveli, dated 01.05.2017, which pertains to supply of water to a Textile Mill and Cement Factory, that the quantity permitted to be drawn is decided based on the inflow of water and what has been permitted is only 50% of the originally permitted quantity of water. Thus, we are of the clear view that the directions issued by the Division Bench in the case of M.Appavu (cited supra) covers the present issue and in the light of the decision of the Honourable Supreme Court in Kuchchh Jal Sankat Nivaran Samiti (cited supra), this Court is not inclined to issue any further directions / observations than what was observed and directed by the Division Bench in the case of M.Appavu (cited supra).
18. For all the above reasons, we are of the view that the petitioner has not made any ground to set aside the impugned proceedings, dated 09.03.2017, of the third respondent / Executive Engineer, Public Works Department, Tamirabharani Division, Tirunelveli District.
19. In the result, the writ petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To:
1.The Principal Secretary, Public Works Department, State of Tamil Nadu, Fort St.George, Chennai-600 009.
2.The Director / Member Secretary, State Water Resources Management Agency, SWARMA, Public Works Department, Government of Tamil Nadu, Taramani, Chennai-600 113.
3.The Executive Engineer, Public Works Department, Tamirabharani Division, Tirunelveli District.
4.The District Collector, Tirunelveli District, Tirunelveli-627 009..