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B M SREENIVASAIAH MEMORIAL 2nd NATIONAL MOOT COURT COMPETITION -2016

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

T 14

BEFORE THE HON’BLE SUPREME COURT OF KANO

STATE OF KARAK..……………………………….………………………….PETITIONER

VERSUS

STATE OF MANDEVILLE……………………………………………………RESPONDENT

PETITION FILED UNDER ARTICLE 131 OF THE CONSTITUTION OF KANO

The Hon'ble Constitutional Bench of the Supreme Court

The humble submission of the petitioner above named

Sd/- (Signature) Sd/- (Signature)

Counsel for the Respondent Respondent

To,



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TABLE OF CONTENTS

Sl. No. Particulars Page No.1. LIST OF ABBREVIATIONS ii

2. INDEX OF AUTHORITIES

• Books referred

• Dictionaries and Law Lexicons

• Statutes and Rules referred

• Websites referred

• Table of cases

iii - v

3. STATEMENT OF JURISDICTION vi

4. STATEMENT OF FACTS vii

5. STATEMENT OF ISSUES viii

6. SUMMARY OF ARGUMENTS ix

7. ARGUMENTS ADVANCED 1 – 14

8. PRAYER 15



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LIST OF ABBREVIATIONS

1. AIR : All India Reporter

2. Art. : Article

3. Edn. : Edition

4. e.g : Example

5. EIA : Environmental Impact Assessment

6. Hon’ble : Honorable

7. i.e. : That is

8. MoEF : Ministry of Environment and Forest

9. SC : Supreme Court

10. SCC : Supreme Court Cases

11. SCR : Supreme Court Report

12. Vol. : Volume

13. Vs. : Verses



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INDEX OF AUTHORITIES

BOOKS REFERRED

i.

D D BASU: “CONSTITUTION OF INDIA”, LEXIS NEXIS, NAGPUR, 14TH

EDN.(2009)

ii. D D BASU: “COMMENTARY ON THE CONSTITUTION OF INDIA”, LEXIS

NEXIS, NAGPUR, VOL.4, 8 TH EDN. (2008)

iii. D.J.DE, “THE CONSTITUTION OF INDIA”, ASIA LAW HOUSE, HYDERABAD,

VOL. 2, 2002 EDN.

iv. Dr. L.M.SHINGHVI, “CONSTITUTION OF INDIA”, THOMSON REUTERS,

NEW DELHI, VOL.2, 3 RD EDN., 2013

v. Dr. SUBHASH C. KASHYAP, “CONSTITUTIONAL LAW OF INDIA”,

UNIVERSAL LAW PUBLISHING CO., DELHI,VOL.1, 2008 EDN.

vi. H. M. SEERVAI: “CONSTITUTIONAL LAW OF INDIA”, N. M. TRIPATHI PVT

LTD, BOMBAY, 3 RD EDITION.

vii. JAIN, M.P.: “INDIAN CONSTITUTIONAL LAW”, WADHWA AND

COMPANY,NAGPUR, 5TH EDN. (REP.2005)

viii. P. ISHWAR BHAT: “INTER-STATE AND INTERNATIONAL WATER

DISPUTE”, EASTERN BOOK COMPANY (P) LTD, LUCKNOW, 1 ST EDITION.

ix. PROF. PRASAD DIWAN: “ENVIRONMENT ADMNISTRATION”, DEEP &

DEEP PUBLICATION, NEW DELHI.

x. S. C. SHASTRI: “ ENVIRONMENTAL LAW”, EASTERN BOOK COMPANY (P)

LTD, LUCKNOW, 3 RD EDITION.

xi. SUSAN WOLF & ANNA WHITE: “PRINCIPLES OF ENVIRONMENTAL LAW”,

CAVENDISH PUBLISHING LTD, GREAT BRITAIN, 2 ND EDITION.

xii. VIDYANATH: “WATER RESOURCES OF INDIA”, OXFORD UNIVERSITY

PRESS, NEW DELHI, 1 ST EDITION.

xiii. V. R. KRISHNA IYER: ““ENVIRONMENTAL PROTECTION AND LEGAL

DEFENCE, STERLING PUBLISHERS PVT LTD



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DICTONARIES AND LAW LEXICONS

1. BLACK HENRY CAMPBELL, BLACK ' LAW DICTIONARY 6 TH ED., 1990

2. BURTON WILLIAM C, LEGAL THESAURUS, 2 ND ED., 1992

3. GARNER BRYAN, BLACK ' LAW DICTIONARY, 7 TH ED

4. GARNER BRYAN, MODERN LEGAL USAGE, 1991

5. PRAMANATHA'S AIYER'S , "LAW LEXION", 2 ND ED., 1997

6. THE OXFORD ADVANCED LEARNER DICTIONARY, 6 TH ED. 2003

7. WHARTON, LAW LEXICON, 14 TH ED. 1993

STATUTES, CONVENTIONS AND RULES REFERRED

• THE CONSTITUTION OF INDIA, 1950• THE ENVIRONMENTAL (PROTECTION) ACT, 1986

• INTER – STATE WATER DISPUTES ACT, 1956

• CONVENTION ON THE LAW OF THE NON-NAVIGATIONAL USES OF

INTERNATIONAL WATER COURSES,1997

• THE INDUS WATER TREATY, 1960

• NATIONAL WATER POLICY, 2012

LIST OF WEBSITES REFERRED

• http://www.indiankanoon.org

• http://www.manupatra.com

• http://www.legalpundits.com

• http://www.lexisite.com

• http://www.judisnic.in

• http://www.lawteacher.net• http://www.legalindia.in

• http://www.wrmin.gov.nic.in

• http://www.enfor.gov.in





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STATEMENT OF JURISDICTION

This petition has been filed invoking jurisdiction of the Supreme Court under Article 131 of

the Indian Constitution.

Whereas Article 131 reads as under:

131. Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution,

the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any

dispute

a) between the Government of India and one or more States; or

b) between the Government of India and any State or States on one side and one or more

other States on the other; orc) between two or more States, if and in so far as the dispute involves any question

(whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any

treaty, agreement, covenant, engagements, and or other similar instrument which,

having been entered into or executed before the commencement of this Constitution,

continues in operation after such commencement, or which provides that the said

jurisdiction shall not extend to such a dispute.



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STATEMENT OF FACTS

1. Union of Kano is a democratic republic with 29 states. It is rich in non-renewable and

renewable resources. Kano which is headed by the Nudi Adami Party has always

supported the use of renewable energy which has been made as a national policy. East

zone of Kano is blessed with favorable ecosystem, helpful for agricultural purposes.

State of Karak and Mandeville are two neighboring states in east zone.

2. The State of Mandeville is excessively dependent on tourism and nature. The two States

had stressed relation pertaining to distribution of inter-state river Aishani which takes

birth in State of Karak and travels 800 km to the Great Kano Sea.

3. The two State Governments entered into agreement which proposed the construction of

a dam named AISHANI JAL for the purpose of providing water to the drought prone

areas in the State of Karak in the year 1970. New regional political party by name

Mandi Adami Party, displaced Kano Admi Party in State of Mandeville in the year

1985 and even contested in the State of Karak. Due to ideological differences between

the two parties, the JAL project was completely stalled.

4. The western part of Karak was hit by a severe drought which led to agitation and bundh

and a complete halt of the economy, affecting the State's revenue. This lead to change

of Government in the State of Karak and NAP came to power in the State of Karak. TheState of Karak proposed that there is need of 7.5 TMC of water to solve the issues in

western Karak, which was not agreed to on environmental grounds by the State of

Mandeville. State of Mandeville, approached the Union of Kano and a Water Tribunal

was set to solve the issue.

5. The Government of Karak, approached the Union Government for clearance for

AishaniJal project. The National Environment Engineering Institute and Ministry of

Water Resources gave in principle clearance.6. The State of Mandeville approached the Water Tribunal seeking for a stay on the

clearance given and sought an injunction against construction of the Jal Project as the

same was affecting the flora and fauna. The tribunal was not convinced with this line of

argument and thus did not entertain the application and rejected the same. Aggrieved by

this, the State of Mandeville has approached the Supreme Court of Kano for seeking

relief. The matter is before the Supreme Court of Kano for final hearing.



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STATEMENT OF ISSUES

1. WHETHER THE PETITION IS MAINTAINABLE?

2. WHETHER THE CONSTRUCTION OF AISHANI JAL PROJECT WILL

LEAD TO VAST AND IMMENSE ECOLOGICAL IMBALANCE?

3. WHETHER THE CONSTRUCTION OF DAM WILL VIOLATE OR

PROTECT THE FUNDAMENTAL RIGHTS OF THE PEOPLE?

4. WHETHER THE STATE OF MANDEVILLE IS ENTITLED FOR ANY

RELIEF OR AWARD?



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SUMMARY OF ARGUMENTS


It is respectfully submitted that the petition filed by the petitioner is not maintainable. Prima

facie the dispute is a water dispute. Secondly, it is a conflict for the use of water between

both the states. Finally, because it includes construction of dam the upper riparian state will

be in a dominant position over the control of water. Thus it also includes control of water so

the Supreme Court does not have jurisdiction over the issue because Article 262 has a bar

on it. It is further submitted that inter-State water dispute should be dealt with only in

accordance with the provisions of Inter-State Water Dispute Act, 1956, and cannot be

challenged in any Court including the Supreme Court. Hence, the petition should be

dismissed.

2. WHETHER THE CONSTRUCTION OF AISHANI JAL PROJECT WILL LEAD TO VAST

AND IMMENSE ECOLOGICAL IMBALANCE?

It is respectfully submitted that there is no ecological imbalance due to the construction of

Aishani jal project. Dams are constructed for Generating electricity; Supplying water for

agricultural, industrial, and household needs; controlling the impact of floodwaters; and

Enhancing river navigation. If dam is constructed it will increase the ecological balance on

the other hand. Water will reach the required place, people’s misery will be gone. It will

make the land more fertile. Irrigational facilities will increase which will in long run help

the nature only.

3. WHETHER THE CONSTRUCTION OF DAM WILL VIOLATE OR PROTECT

THE FUNDAMENTAL RIGHTS OF THE PEOPLE?

It is respectfully submitted before this Hon’ble Supreme Court that the construction of dam

will enrich the fundamental rights of the citizens of State of Karak.

As quoted by Jwaharlal Nehru, First Prime Minister of India, “Dams are the temple of

modern world.” The benefits of dams are innumerable. The basic purpose of dam is to serve

public interest at large. When a dam is built the dispute of water gets solved. Building of

dam has manifold objective. First, the dam will provide water to areas where it is needed,

Second, ProA State should think and take decisions that will benefit its citizens. The

respondents have got permit from the Union Government and concerned ministries for the

construction. All Environment Impact Assessment have been done then only the authorities



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gave the permit and it is very substantial in nature. Human Rights are those rights which are

social, legal and moral in nature. When the drought has hit the Western part of Karak, there

was agitation against the Government and no Government can sustain without the support

of its citizens. In those circumstances it is the foremost duty of the Government to seek

methods to earn that support by giving a solution to the problem of its citizens. Production

of hydroelectricity will increase, and third, it will cater to the need of irrigation.

4. WHETHER THE STATE OF MANDEVILLE IS ENTITLED FOR ANY AWARD

OR RELIEF?

It is most humbly submitted before this Hon’ble Supreme Court that the State of

Mandeville is not entitled for any relief or award.

As the State of Mandeville has already made an application for the injunction to Aishani Jal

project and the same was dismissed by the Tribunal. When the tribunal which is constituted

to address the water dispute between both the states, thereafter anything related to that issue

will be decided by the tribunal only. As mentioned in ISWD Act, the tribunal’s decision

will be final in any matter related to water dispute. This matter of dam construction came

out of the water dispute going on between both the states. When the tribunal has already

decided the application to be dismissed then why again there is a petition before Supreme

Court? It is just wasting the precious time of the Hon’ble Supreme Court.



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ARGUMENTS ADVANCED


It is respectfully submitted that the petition filed by the petitioner is not maintainable. The

state of Mandeville approached the Union of Kano for referring the matter to the water

tribunal. Accordingly a tribunal was constituted and was in its process of adjudication with

regard to distribution of water. So the very base for the dispute is, 7.5 TMC of water that state

of Karak claimed to solve the issues in Western Karak. Whereas later the petitioner

concluded for themselves that 3.5 TMC would suffice. Thus prima facie the dispute is a water

dispute. Secondly, it is a conflict for the use of water between both the states. Finally,

because it includes construction of dam the upper riparian state will be in a dominant position

over the control of water. Thus it also includes control of water so the Supreme Court does

not have jurisdiction over the issue because Article 262 has a bar on it.

1.1 The petition is not maintainable as the Art. 262 provides as follows:

262. Adjudication of disputes relating to waters of inter State rivers or river valleys

(1) Parliament may by law provide for the adjudication of any dispute or complaint with

respect to the use, distribution or control of the waters of, or in, any inter State river or river

valley

(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither

the Supreme Court nor any other court shall exercise jurisdiction in respect of any such

dispute or complaint as is referred to in clause (1).

This article empowers the parliament to provide for adjudication of any dispute or complaint

with respect to the use, distribution or control of waters or any inter-State river or river valley

and to bar the jurisdiction of the Supreme Court or any other court in respect of such disputes.

It may be pointed out that for the settlement of inter-State river water dispute, the Draft

Constitution of India initially contained similar provision in the 1935 Act. In the light of these

considerations, the present Article 262 was adopted. In the pursuance of the provision,

parliament enacted the Inter-State Water Dispute Act, 1956 VedireVenkata Reddy v. Union

of India 1, the Act provides for appointment of ad hoc tribunals by the central government

when a State Government requests the centerfor tribunal and when the center is of the

opinion that the disputes cannot be settled by negotiations. Section 11 of the Act excludes the

1VedireVenkata Reddy v. Union of India, AIR 2005 AP 155.





jurisdiction of the Supreme Court “in respect of any water dispute which may be referred to

the tribunal under this Act”. The Act provides for finality of awards passed by the tribunal

after consideration of clarification sought either by the Central or State Government.

1.2 The constitution has made several departures from the provisions of Government of IndiaAct, 1935. (1) State’s legislative power over water is made subject to parliament’s power

under entry 56 of list 1. (2) The machinery for resolving water dispute is not written into

constitution itself, but is to be provided for by law by parliament. (3)The jurisdiction of all

courts including Supreme Court is not excluded by the constitution but Art. 262 (2)

empowers parliament to provide for such exclusion by law.

1.3 Since the states, in every federation, normally act as independent units in the exercise of

their internal sovereignty, conflicts of interest between the units, are sure to arise. Hence, inorder to maintain the strength of the Union, it is essential that there should exist adequate

provision for judicial determination of disputes between the units and for settlement of

disputes by extra judicial bodies as well as their prevention by consultation and joint action.

While Art. …, ante , provides, for the judicial determination of disputes between states by

vesting the Supreme Court with exclusive jurisdiction in the matter, Art. 262 provides for

adjudication of one class of such disputes, by an extra judicial tribunal, while Art. 263

provides for the prevention of inter-state dispute by investigation and recommendation byadministrative body.

1.4 The present article empowers the parliament to exclude the adjudication of any ‘dispute

or complaint with respect to the use, distribution or control’ of the waters, or of in any inter-

State river or river valley, from the adjudication of the Supreme Court or any other Court and

provides for the adjudication of such dispute by any other authority and in any manner

provided by parliament. This clearly states that there is no jurisdiction of Supreme Court to

adjudicate the dispute and the parliament clearly provides for the adjudication of suchdisputes by an extra judicial body or a tribunal.

1.5 But, till the tribunal is constituted, the Supreme Court has jurisdiction to pass interim

orders to preserve status quo ( State of Orissa V. Government of India 2). In that case, the

agreement was entered into between two states to share water on equal basis. Subsequently,

one of the State started construction of side channel weir and a flood flow canal on the river

concerned. The same was objected by the other States. It was held that the dispute amounted

2State of Orissa V. Government of India, (2009) 5 SCC 492.





to inter-State water dispute since the construction on the river could possibly disturb the

earlier agreement between the States and the tribunal had to decide the dispute. But in the

instinct case the tribunal has already been constituted and has got every jurisdiction to

adjudicate the disputes between the states for sharing of water.

1.6 It is further submitted that inter-State water dispute should be dealt with only in

accordance with the provisions of Inter-State Water Dispute Act, 1956, and cannot be

challenged in any Court including the Supreme Court. The contention that the bar under the

Act would not cover cases of private individuals approaching the Supreme Court was rejected

and no petition in Art. 32 could be entertained as held in Atma Linga Reddy V. Union of

India 3.

1.7 It is further submitted that the petitioners are have no proper base to approach thehonorable Supreme Court. In support to statement made by the counsel it is very clear

according to the facts that the case prima facie has breach of agreement which was in the year

1970 agreed upon by both the states to construct a dam across river Aishani called Aishani

jall project for the purpose of providing water to the drought prone areas in the State of

Karak. But today the petitioner is totally against the construction of the very same project for

which it had agreed upon. Thus it is now categorical that the petitioner is not abiding by the

same which is the breach of agreement and thus doesn’t have a locus standi under Article 131of the constitution. Article 131 does not entertain any petition of dispute between the states

for breach of agreement.

1.8 Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution,

the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any

dispute

(a) Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more

other States on the other; or

(c) Between two or more States, if and in so far as the dispute involves any question (whether

of law or fact) on which the existence or extent of a legal right depends: Provided that the

said jurisdiction shall not extend to a dispute arising out of any treaty, agreement,

covenant, engagements, and or other similar instrument which, having been entered into

or executed before the commencement of this Constitution, continues in operation after such

3AtmaLinga Reddy V. Union of India,(2008) 7 SCC 788.





commencement, or which provides that the said jurisdiction shall not extend to such a

dispute. Thus petition filed under Article 32, Article 131, or article 136 is not maintainable.

Hence, the petition should be dismissed.





2. WHETHER THE CONSTRUCTION OF AISHANI JAL PROJECT WILL LEAD

TO VAST AND IMMENSE ECOLOGICAL IMBALANCE?

It is respectfully submitted that there is no ecological imbalance due to the construction of

Aishani jal project. Dams are constructed for Generating electricity; Supplying water foragricultural, industrial, and household needs; controlling the impact of floodwaters; and

Enhancing river navigation.

2.1 In the case of NarmadaBachaoAndolan v. Union of India 4, the court considered various

aspects of environmental clearance of SardarSarovar Project by referring to vast scientific

data, which covered the issues relating to catchment area treatment, compensatory

afforestation, downstream impacts, salinity, sedimentation, flora and fauna, fisheries,

archeological remains, resettlement and rehabilitation and health concerns. B.N.Kirpal J forthe majority expressed satisfication on these matters and observed: care for environment is an

ongoing process and the system in place would ensure that ameliorative steps are taken to

counter the adverse effect, if any, on the environment with the construction of the dam.

2.2 Furthermore, environmental concern has not only to be of the area which is going to be

submerged but also its surrounding area. The impact on environment should be seen in

relation to the project as a whole. While an area of land will submerge but the construction of

dam will result in multifold improvement in the environment of the areas where canal water

will reach.

2.3 Further in Mullaperiyar case 5, the court dealt with the problem of submerge of forest due

to heightening of dam and viewed that total extent of forest will not fall, and said: the

increase of water level will not affect the flora and fauna. In fact, the reports placed on record

that the fauna, particularly, elephant herds and the tigers will be happier when the water level

slowly rises to touch the forest line. In nature, all birds and animals love water spread and

exhibit their exuberant pleasure with heavy rain filling the reservoir resulting in lot of

greenery abd ecological environment around. The expert committee has reported that it will

be beneficial for the wildlife in the surrounding area as it will increase the carrying capacity

for wildlife like elephant, ungulates and in turn tigers, the apprehensions regarding adverse

impact on environment and ecology have been found by the experts to be unfound.

4 Narmada Bachao Andolan v. Union of India AIR 2000 SC 37515Mullaperiyar Environmental Protection Forum v. Union of India AIR 2006 SC 1428





2.4 It is further submitted that if the minute details about the ecological imbalance is

considered there won’t be any dams built in this world. Since the construction of dam is for

the very purpose to help the people of that region in terms of sufficient water supply,

sustainable electric supply, water supply to agricultural lands, and also help the wildlife as

observed in Mullaperiyar 6 case.

2.5 The dams also helps in irrigation purposes, they are:

Dams and reservoirs are constructed to store surplus waters during wet periods, which can be

used for irrigating arid lands. One of the major benefits of dams and reservoirs is that water

flows can be regulated as per agricultural requirements of the various regions over the year.

Dams and reservoirs render unforgettable services to the mankind for meeting irrigation

requirements on a gigantic scale.

It is estimated that 80% of additional food production by the year 2025 would be available

from the irrigation made possible by dams and reservoirs.

Dams and reservoirs are most needed for meeting irrigation requirements of developing

countries, large parts of which are arid zones.

There is a need for construction of more reservoir based projects despite widespread

measures developed to conserve water through other improvements in irrigation technology.

It is further submitted that construction of dam provides a habitat for wetland species,

especially water birds. The reservoir can also be a source of water to animals and plants in the

adjoining areas and, where such areas have become unnatural dry, this can be a significant

environmental benefit.

The construction of dam also helps in flood control.

Floods in the rivers have been many a time playing havoc with the life and property of the people. Dams and reservoirs can be effectively used to control floods by regulating river

water flows downstream the dam.

The dams are designed, constructed and operated as per a specific plan for routing floods

through the basin without any damage to life and property of the people.

The water conserved by means of dams and reservoirs at the time of floods can be utilized for

meeting irrigation and drinking water requirements and hydro power generation.

6 supra





2.6 Water is essential for sustenance of all forms of life on earth. It is not evenly distributed

all over the world and even its availability at the same locations is not uniform over the year.

While the parts of the world, which are scarce in water, are prone to drought, other parts of

the world, which are abundant in water, face a challenging job of optimally managing the

available water resources. No doubt the rivers are a great gift of nature and have been playing

a significant role in evolution of various civilizations, nonetheless on many occasions, rivers,

at the time of floods, have been playing havoc with the life and property of the people.

Management of river waters has been, therefore, one of the most prime issues under

consideration. Optimal management of river water resources demands that specific plans

should be evolved for various river basins which are found to be technically feasible and

economically viable after carrying out extensive surveys. Since the advent of civilization,

man has been constructing dams and reservoirs for storing surplus river waters available

during wet periods and for utilization of the same during lean periods. The dams and

reservoirs world over have been playing dual role of harnessing the river waters for

accelerating socio-economic growth and mitigating the miseries of a large population of the

world suffering from the vagaries of floods and droughts. Dams and reservoirs contribute

significantly in fulfilling the following basic human needs: -

2.7 Water for drinking and industrial use:

Due to large variations in hydrological cycle, dams and reservoirs are required to be

constructed to store water during periods of surplus water availability and conserve the same

for utilization during lean periods when the water availability is scarce. Properly designed

and well-constructed dams play a great role in optimally meeting the drinking water

requirements of the people. Water stored in reservoirs is also used vastly for meeting

industrial needs. Regulated flow of water from reservoirs help in diluting harmful dissolved

substances in river waters during lean periods by supplementing low inflows and thus inmaintaining and preserving quality of water within safe limits.

Irrigation:

Dams and reservoirs are constructed to store surplus waters during wet periods, which can be

used for irrigating arid lands. One of the major benefits of dams and reservoirs is that water

flows can be regulated as per agricultural requirements of the various regions over the year.

Dams and reservoirs render unforgettable services to the mankind for meeting irrigation

requirements on a gigantic scale. It is estimated that 80% of additional food production by the





year 2025 would be available from the irrigation made possible by dams and reservoirs.

Dams and reservoirs are most needed for meeting irrigation requirements of developing

countries, large parts of which are arid zones. There is a need for construction of more

reservoir based projects despite widespread measures developed to conserve water through

other improvements in irrigation technology.

Flood Control:

Floods in the rivers have been many a time playing havoc with the life and property of the

people. Dams and reservoirs can be effectively used to control floods by regulating river

water flows downstream the dam. The dams are designed, constructed and operated as per a

specific plan for routing floods through the basin without any damage to life and property of

the people.

The water conserved by means of dams and reservoirs at the time of floods can be utilized for

meeting irrigation and drinking water requirements and hydro power generation.

Hydro power generation:

Energy plays a key role for socio-economic development of a country. Hydro power provides

a cheap, clean and renewable source of energy. Hydro power is the most advanced and

economically viable resource of renewable energy. Reservoir based hydroelectric projects provide much needed peaking power to the grid. Unlike thermal power stations, hydro power

stations have fewer technical constraints and the hydro machines are capable of quick start

and taking instantaneous load variations. While large hydro potentials can be exploited

through mega hydroelectric projects for meeting power needs on regional or national basis,

small hydro potentials can be exploited through mini/micro hydel projects for meeting local

power needs of small areas. Besides hydro power generation, multi purpose hydroelectric

projects have the benefit of meeting irrigation and drinking water requirements and

controlling floods etc.

Inland navigation:

Enhanced inland navigation is a result of comprehensive basin planning and development,

utilizing dams, locks and reservoirs that are regulated to play a vital role in realizing large

economic benefits of national importance.





Recreation:

The reservoir made possible by constructing a dam presents a beautiful view of a lake. In the

areas where natural surface water is scarce or non-existent, the reservoirs are a great source of

recreation. Along with other objectives, recreational benefits such as boating, swimming,fishing etc linked with lakes are also given due consideration at the planning stage to achieve

all the benefits of an ideal multipurpose project.

2.8 Dam construction, like a coin, has its two sides. How to exploit favorable conditions and

avoid unfavorable ones is the business of dam architects, dam constructors and dam

managers. Only taking the ultimate aim of improving the ecosystem and sustainable

development, and using environmental appraise deeply, setting down dam running mode to

take advantage of ecosystem, can our dam construction be better. We should promote the beneficial aspects and alleviate the negative effects caused by dam construction. Then we can

make new engineering projects to be facilitated in society’s sustainable development and

accelerate the harmonious coexist between nature and human being. We should promote the

beneficial aspects and alleviate the negative effects caused by dam construction. Then we can

make new engineering projects to be facilitated in society’s sustainable development and

accelerate the harmonious coexist between nature and human being.

Therefore it is humbly submitted that the construction of dam will not lead to any ecological

imbalance. Instead it will give benefit and it is in public interest.





3. WHETHER THE CONSTRUCTION OF DAM WILL VIOLATE OR PROTECT

THE FUNDAMENTAL RIGHTS OF THE PEOPLE?

It is respectfully submitted before this Hon’ble Supreme Court that the construction of dam

will protect the fundamental rights of the people of State of Karak.

3.1 As quoted by Jwaharlal Nehru, First Prime Minister of India, “Dams are the temple of

modern world.” The benefits of dams are innumerable. The basic purpose of dam is to serve

public interest at large. When a dam is built the dispute of water gets solved. Building of dam

has manifold objective. First, the dam will provide water to areas where it is needed, Second,

Production of hydroelectricity will increase, and third, it will cater to the need of irrigation.

When a project which has so many benefits, how can it violate someone’s fundamental

rights? In turn, it protects the right of people by catering their need. The dam will provide

water and better crop yield by enhancing irrigational facilities. Dams will cater the need of

drinking water also where clean drinking water is a fundamental right of people. Generation

of more electricity will lead to development socially and economically, both.

3.2 Logically, the problem that arises during the construction of dam is loss of shelter of the

tribal people, loss of land. It is a fact that only upstream facesthese problems. Here the State

of Karak is the upstream state. So the problem will be faced by the respondent.

3.3 Apart from this, dams are built to distribute water and divert part of water of river to a

specific area. That’s the reason why the dam is proposed to be built here. As it is very evident

that the Western part of Karak has been hit by drought which led to loss of lives and loss in

economic revenue due to bundh and agitation by the people. 7 If the dam is built it will divert

the water of Aishani Jal to the drought prone areas benefiting it all the way.

3.4 A State should think and take decisions that will benefit its people. The respondents have

got permit from the Union Government and concerned ministries for the construction. AllEnvironment Impact Assessment have been done then only the authorities gave the permit

and it is very substantial in nature.

3.5 Human Rights are those rights which are social, legal and moral in nature. When the

drought has hit the Western part of Karak, there was agitation against the Government and no

Government can sustain without the support of its people. In those circumstances it is the

7 7 th para, 6 th line of fact sheet





foremost duty of the Government to seek methods to earn that support by giving a solution to

the problem of its people.

3.6 In turn there will be violation of fundamental rights of people of State of Karak if the dam

is not constructed. People has the right to development and right to livelihood, which will beviolated. First of all, if the condition of drought is not solved then there will be loss of

livelihood. The agriculture will get a major hit and the people who are involved in agriculture

will have nothing to do to sustain their living. This problem of drought can only be solved by

construction of dam which will divert the river water to Western Karak.

3.7 Major water resources project need clearance from Central Water Commission and other

concerned authorities. ‘Gujarat successfully argued before the Narmada Water Disputes

Tribunal that “ dam is the only solution”, not only on the grounds of general drought- proneness of the State but in particular the imperative of alleviating the acute drought-

affliction of Kutch, Saurashtra and North Gujarat.’ 8

3.8 As discussed before dams have manifold benefit one of them is development. If the dam

is not built, one of the projects which will give development will be destroyed. The State will

get economic benefit also as from the generation of hydroelectricity and it will also provide

for protection against floods.

3.9 Loss of forest because of any activity is undoubtedly harmful. But it cannot be ignored

and it is important to note that these large dams also cause conversion of waste land into

agricultural land and making the area greener. Large dams can also become the instruments

in improving the environment.

3.10 If this dam is not built, this will again violate Art.21 of the people of i.e. Right to life. As

it happened earlier that when the drought came and there was no proper mechanism to protect

people against the drought. People started agitation against the Government which also

claimed 189 lives. So to prohibit and avoid those alike situations to arise again it is necessary

to construct the dam and give people what they want to live their life peacefully. State’s

revenue and economy will also suffer if this dam is not built. Reasons for this argument are

that, first of all, if there is no agriculture, the growth in the agriculture sector will decrease.

Secondly agitation if occurred again will again lead to loss of property.

8L.C.Jain, Dam v. Drinking Water, Exploring the Narmada Judgement





4. WHETHER THE STATE OF MANDEVILLE IS ENTITLED FOR ANY AWARD

OR RELIEF?

It is most humbly submitted before this Hon’ble Supreme Court that the State of Mandeville

is not entitled for any relief or award.

4.1 As the State of Mandeville has already made an application for the injunction to Aishani

Jal project and the same was dismissed by the Tribunal. When the tribunal which is

constituted to address the water dispute between both the states, thereafter anything related to

that issue will be decided by the tribunal only. As mentioned in ISWD Act, the tribunal’s

decision will be final in any matter related to water dispute. This matter of dam construction

came out of the water dispute going on between both the states. When the tribunal has

already decided the application to be dismissed then why again there is a petition beforeSupreme Court? It is just wasting the precious time of the Hon’ble Supreme Court. .

4.2 Even the respondents have got the clearance from the Ministry of Water Resources and

the National Environment Engineering Institute. When the concerned authorities are vested

with the power of clearing the projects, it is obvious that they have fulfilled all the basic

conditions before giving the permit and they have assessed that why the permit should be

given. As it is very clear from the fact sheet that the drought has hit the western part of Karak

so to provide relief to the people of affected part, there was an immediate need to build the

dam as fast as possible. The main idea behind the construction of dam is to divert the water to

the drought prone area. Even the 1970 agreement between both the States states the same that

the construction of dam named Aishani Jal across the border region for the purpose of

providing water to the drought prone areas in the State of Karak. 9

4.3 Now coming to the point of 7.5 tmc water requirement as contented by the respondents. It

is very practical and reasonable that the State of Karak need this much water for its western

part.

Argument in this favor would be the final award by the Cauvery Water Tribunal 10 held,

“The Tribunal hereby orders that the waters of the river Cauvery be allocated in three

States of Kerala, Karnataka and Tamil Nadu and U.T. of Pondicherry for their beneficial

uses as mentioned hereunder:

i) The State of Kerala - 30 TMC

9

6th

para, 6th

line of the fact sheet10 As notified in the Official Gazette through Ministry of Water Resources, Notification dated 19 th February,2013





ii) The State of Karnataka - 270 TMC

iii) The State of Tamil Nadu - 419 TMC

iv) U.T. of Pondicherry - 7 TMC

What counsel is trying to prove by citing this is that, when Pondicherry being a UnionTerritory and having area 492 sq.km got 7 TMC of water, State of Karak which is a quite big

state and we can infer that from the statistics given regarding the river basin cover i.e.; 34,

273 Sq.km, so the requirement of 7.5 tmc of water for its western part is justifiable. West

being one of the major directions will be a big part constituting the State.

4.4 The State of Mandeville is contending that requirement of 7.5 TMC water is excessive

and only 3.5 TMC water would suffice is baseless. The State who is asking for the required

water will know the reasonable use that it has to fulfill. Any other State has no authority todecide how much water will suffice its (former State’s) use. Along with this counsel would

like to justify the need of 7.5 TMC water. Recently the petitioner state has been struck by

drought. So there is no water for irrigation, drinking purpose and other such use as industrial

use or production of power.

4.5 As held in Narmada Bachao Andolan v. Union of India & Others 11 , The Court itself is

not above the law. In respect of public projects and policies which are initiated by the

Government, the Court should not become an approval authority. Normally such decisions

are taken by the Government after due care and caution. In a democracy, welfare of the

people at large, and not merely of a small section of the society has to be the concern of a

responsible Government. If a policy decision has been taken, which is not in conflict with any

law or is not malafide, it will not be in public interest to require the Court to go into and

investigate those areas which are the functions of the executive. The courts in the exercise of

their jurisdiction, will not transgress into the field of policy decision. Courts are ill equipped

to adjudicate on a policy decision so undertaken.

4.6 Thinking from International perspective, Harmon doctrine also is in favor of the

Respondents.

The Harmon doctrine supported the legal position of an upper riparian to have access and use

the water of river in absolute terms. The upper riparian States have always asserted the

sovereignty theory to claim absolute right over the water sources emanating in their

territories. US Attorney General, Judson Harmon in water dispute between US and Mexico,

11 Narmada Bachao Andolan v. Union of India & Others A.I.R. 2000 SC 3751





asserted, “The fundamental principle of international law is the absolute sovereignty of every

nation, as against all the others, within its territory.” 12 This assertion was based on the basis

of the judgment of Marshall CJ in Schooner Exchange v. McFaddon 13 .

4.7 In 1939, the Italian Court of Cassation attempted to clarify the mutual interest of Franceand Italyin the Roya River with the following observation:

“International law recognizes the right on the part of every riparian State to enjoy, as a

participant of a kind of partnership created by the river, all the advantages deriving from it

for the purpose of securing the welfare and the economic and civil progress of the nation…..

However, although a State in the existence of its right of sovereignty, may subject public

rivers to whatever regime it deems best, it cannot disregard the international duty, derived

from that principle, not to impede or to destroy, as a result of this regime, the opportunity of

the other States to avail themselves of the flow of water for their own national needs.” 14

4.8 Here the State of Karak is having sovereignty over the river because Aishani River is

originating from the Jaguar village, State of Karak. 15 It is only exercising its sovereignty over

the river and to make full use of it as per their requirement by building a dam. They are not

transgressing the right of other riparian State through which the river is flowing at the later

stage. Dam will benefit both the State. They even got permit from the concerned authorities

so they are also fulfilling the condition laid in the maxim sic uteretuoutalienum non laedas

(so use your own as not to harm that of another).

4.9 The Petitioner is not entitled for any relief because they are the one who breached the

agreement by opposing to a project for which they agreed once. It is also affecting the legal

right. When they are not fulfilling the obligation as a party to the agreement, they are not

entitled to any such claim. The respondent state is only completing what was there in the

agreement.

Hence the counsel for the respondent humbly plea before the Hon’ble Supreme Court that the

petitioner is not entitled for any relief or award.

12Official opinions of the Attorney General of the US, Advising the President and Heads of Departments inrelation to their Official Duties, Vol. XXI, Treaty of Guadaulpe Hidalgo- International Law, Opinion by Judsonharmon, 280-81 as cited in Tuomas Kuokkanen, International Law and the Environment: Variations on a Theme(2002) 13.13 3 L Ed 287: II US (7 Cranch) 116 (1812). The court held in this case:The jurisdiction of a nation within its own territory is exclusive and absolute. It is susceptible of no limitationnot imposed by itself.14

Societe Energie Electrique du Littoral Mediterraneen v. Compagnia ImpreseElettricheLiquiri, in the ItalianCourt of Cassation, Feb. 13, 1939.15 Para 5 3 rd line of the fact sheet



Documents

T14 Respondent