NATIONAL LAW UNIVERSITY & JUDICIAL ACADEMY, 7th

SEMESTER CURRICULUM MOOT, 2019 UID-SM0116014

BEFORE THE HON’BLE SUPREME COURT OF INDISTHAN

[UNDER ARTICLE 136 OF THE CONSTITUTION OF

INDISTHAN]

IN THE MATTER OF:

STATE OF GANDHIVARI…........................................................................PETITIONER

V.

STATE OF MANJHIRA....................................................................................RESPONDENT

SPECIAL LEAVE PETITION NO. ****/xxxx

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF

INDISTHAN

MEMORIAL FILED ON BEHALF OF THE PETITIONER

NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

INDEX OF AUTHORITIES

CASES

A. P. Pollution Control Board v. Prof. M. V. Nayudu & Ors. AIR 1999 SC 812..........................31
A.K. Kraipak & Ors. v. Union of India & Ors. AIR 1970 SC 150................................................26
Association for Environmental Protection v. State of Kerala & Ors.(2013)7 SCC 226.........30, 34
B. Premanand & Ors. v. Mohan Koikal & Ors. (2011) 4 SCC 266..............................................22
Baigana & Ors. v. Deputy Collector of Consolidation. AIR 1978 SC 944...................................20
Blaze and Central (P.) Ltd v. Union of India and Ors. AIR 1980 Kant. 186................................26
Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Co.
Ltd.,(1991) 2 SCC 539...............................................................................................................29
Deepak Kumar Etc. v. State of Haryana & Ors. Etc. AIR 2012 SC 1386...............................29, 32
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat & Ors.
AIR 1991 SC 2176........................................................................................................................19
Diwan Bros. v. Central Bank of India, Bombay and Ors. AIR 1976 SC 1503..............................15
Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors. AIR 1954 SC 520...............................17
Essar Oil Ltd. v. Halar Utkarsh Samiti & Ors. AIR 2004 SC 1350..............................................31
Essar Oil Ltd. v. Haldar Utkarsh Samiti AIR 2004 SC 1834........................................................34
G. Sarana v. University Of Lucknow & Ors. AIR 1976 SC 2428..................................................26
Gurudevdatta VKSSS Maryadit & ors. v. State of Maharashtra & Ors. (2001) 4 SCC 534........21
Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala & Ors.AIR 1961 SC 1669.............17
Harshad S. Mehta & ors. v. State of Maharastra., (2001) 8 SCC 257..........................................22
In the matter of: Cauvery Water Disputes Tribunal. AIR 1992 SC 522......................19, 20, 23, 24
Jai Bhagwan v. Management of the Ambala Central Co-operative Bank Ltd. & Anr.
AIR 1984 SC 286...........................................................................................................................20
Jaswant Sugar Mills Ltd. Meerut v. Lakshmichand & Ors. AIR 1963 SC 677.............................16

2
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

Juhi Kumari v. State of Bihar.2011 (59) BLJR 2662....................................................................34

Kamini Kumar v. West Bengal. AIR 1972 SC 2060.......................................................................25
Kunhayammed & Ors. v. State of Kerala & Anr. AIR 2000 SC 2587...........................................14
M. C. Mehta v. Kamal Nath.(1997) 1 SCC 388.............................................................................34
M. C. Mehta v. Union of India & Ors. AIR 2001 SC 1948............................................................33
M. C. Mehta v. Union of India AIR 1988 SC 1037........................................................................33
M. C. Mehta v. Union of India. (1997) 3 SCC 715........................................................................31
M. C. Mehta v. Union of India. AIR 2004 SC 4016.......................................................................31
M.C.Mehta v. Union of India (2001) 3 SCC 756..........................................................................33
Manak Lal v. Dr. Prem Chand. AIR 1957 SC 425........................................................................26
Master Construction Co. (P) Ltd. v. State of Orissa & Anr. AIR 1966 SC 1047..........................16
Metropolitan Properties Co. Ltd. v. Lannon, (1968) WLR 815.....................................................26
Minerva Mills Ltd. & ors. v. Union of India & Ors. AIR 1980 SC 1789......................................25
N. D. Jayal & Anr v. Union of India & Ors. AIR 2004 SC 867....................................................29
Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751................................................30
Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. AIR 1986 SC 180........................25
Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswami Iyer & Ors. AIR 1965 SC 195...............15
Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd. & Anr. AIR 1983 SC 239...18
Satish v. State of Uttar Pradesh. (1992) Supp 2 SCC 94..............................................................34
State of Andhra Pradesh v. State of Karnataka AIR 2001 SC 1560..............................................34
State of Kansas v. State of Colorado. 206 U.S. 46 (1907).............................................................23
State of Nebraska v. State of Wyoming. 373 U.S. 541 (1963).......................................................23
State of Tamil Nadu v. State of Karnataka & Ors. 1991 Supp (1) 240...................................18, 19
Subash Kumar v. State of Bihar. (1991) 1 SCC 598.....................................................................33
T. N. Godarvarman Thirumalpad v. Union of India. AIR 2005 SC 4256.....................................33
T. N. Godarvarman Tirumalpad v. Union of India & Ors., (2013) 8 SCC 198............................32
T.N.Godarvarman Thirumalpad v. Union of India. (2002) 10 SCC 606......................................33
Tarun Bharat Sangh Alwar v. Union of India & Ors. AIR 1992 SC 514................................28, 29
The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi and the Bharat Bank
Employees Union, Delhi AIR 1950 SC 188
 ....................................................................................................................................................
17
Vellore Citizen’s Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715.....................30, 32
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

BOOKS REFERRED

1. Ahluwalia S.K, International Environmental Policy, ABD Publishers, Rajasthan.

2. Arvind.P.Datar, Commentary on the Constitution of India, Vol.1, 2 nd Ed. Reprint 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.
3. Arvind.P.Datar, Commentary on the Constitution of India, Vol.2, 2 nd Ed. Reprint 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.
4. Basu.D.D, Commentary on the Constitution of India, Vol.5, 8th Ed. 2009,Lexis Nexis,
Butterwords Wadhwa Publication, Nagpur.
5. Basu.D.D, Commentary on the Constitution of India, Vol.8, 8th Ed. Reprint 2012,Lexis
Nexis, Butterwords Wadhwa Publication, Nagpur.
6. Basu.D.D, Shorter Constitution of India, Vol.1, 14th Ed., Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.
7. Basu.D.D, Shorter Constitution of India, Vol.2, 14th Ed., Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.
8. Choudhry R.N, Law of Forests in India, 1999 Ed., Orient Publication Co.
9. Dodda Srinivas Rao, Inter-State Water Disputes in India,1998, Deep & Deep Publications
Pvt. Ltd., New Delhi.
10. Dr. Maheshwara Swamy.N, Laws Relating to Environmental Pollution & Protection, Asia
Law House.
11. Indrajith Dube, Environment Jurisprudence, Lexis Nexis, Butterwords Wadhwa
Publication, Nagpur.
12. Jain M.P & Jain S.N, Principles of Administrative Law,5 th Ed. Reprint 2009, Lexis Nexis,
Butterwords Wadhwa Publication, Nagpur.
13. Jain.M.P, Indian Constitutional Law, 7th Ed., 2014, Lexis Nexis, Butterwords Wadhwa
Publication, Nagpur.
14. Justice Doabia.T.S, Environment & Pollution Laws in India, Vol.1 & 2, 2 nd Ed., 2010,
Lexis Nexis, Butterwords Wadhwa Publication, Nagpur.
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

15. Paras Diwan & Peeyushi Diwan, Vol.1, Environment Administration Law & Judicial
Attitude, Deep & Deep Publications Pvt. Ltd., New Delhi.
16. Shukla.V.N, Constitution of India, 12th Ed., 2013, Eastern Book Company, Lucknow.

LEGAL DATABASES

1. All India Reporter

2. Manupatra
3. SCC Online

STATUTES REFERRED

1. The Constitution of India, 1950

2. Environment Protection Act, 1986
3. Wildlife Protection Act, 1972
4. Inter-State River Water Disputes Act, 1956

LEXICONS REFERRED

1. Ramanatha Aiyar.P, Concise Law Dictionary, 5th Ed., 2014, Lexis Nexis, Butterwords
Wadhwa Publication, Nagpur.

INTERNATIONAL CONVENTIONS

1. Berlin Rules on Water Resources, 2004

2. Convention on Biological Diversity, 1993
3. Earth Summit, Rio Declaration, 1992
4. Helsinki Rules, 1966
5. Stockholm Declaration, 1972
6. World Charter for Nature, 1982
7. World Commission on Economic Development, 1987
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

STATEMENT OF JURISDICTION

The Honourable Supreme Court of Indisthan has jurisdiction in this matter under Article 136 of
the Constitution of Indisthan which reads as follows:

Article.136: Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

The respondent has appeared before the Hon’ble Supreme Court of Union of Indiana in response to
the SLP filed by the Petitioners under article 136 of the constitution of India, 1950. The respondent
humbly submits to the jurisdiction of this Hon’ble Supreme Court of U.O.I. .
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

STATEMENT OF FACTS

 The Constitution of Indiana provides for a democratic Parliamentary form of governance

along with the inherent concept of co-operative federalism. The Panchnadi is a river which
originates in the Bokara district in Gandhivari state and it flows through the Gandhivari
and Manjhira.

 Millions of acres of agricultural land have been developed around the river .

 Both the states made an Agreement in 1925 during British regime on distribution of water
of Panchnadi.

 Gandhivari started to construct a dam over the Panchnadi, Manjhira opposed the
construction of dam.

 Manjhira argued that Gandhivari violates the principle of water distribution as defined in
the Agreement of 1925. The government of Gandhivari argued that that the river originated
in their state, they had better claim over the river; moreover, the Agreement had lapsed
when its 50 years were up in 1975.

 In order to adjudicate the dispute regarding the equitable sharing of the Lauperry water, the
Centre established the PWDT in 1990. In 2007, the Tribunal came up with a final award
according to which Manjhira would get 410 TMC and Gandhivari 250 TMC.

 Aggrieved by the decision of the Tribunal, Gandhivari approached the Supreme Court with
a Special Leave Petition under Article 236 of Constitution of Indisthan on the ground that
the award was unjust,
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

STATEMENT OF ISSUES

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE

BEFORE THE SUPREME COURT OF INDISTHAN?

ISSUE 2: WHETHER THE FINAL AWARD PASSED BY PWDT WAS JUST AND
NOT UNFAIR ON THE PART OF GANDHIVARI?

ISSUE 3: WHETHER THE AGREEMENT ON WHICH BASIS THE TRIBUNAL

AWARDED THE REWARD IS VALID OR NOT?
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

SUMMARY OF ARGUMENTS

ISSUE-1: MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE

SUPREME COURT OF INDISTHAN:

A. INDISPUTABLE INHABITANCE OF JURISTICTION OF THE SUPREME COURT

OF INDISTHAN:

The existence of jurisdiction confers upon the Court, the authority to adjudicate any case referred
to it. Over and above the normal appellate powers conferred by Articles 132, 133 and 134 of the
Constitution on the Supreme Court to hear appeals from the lower Courts and Tribunals in
constitutional, civil and criminal cases, a very special appellate jurisdiction is conferred on the
Court by Article 136. Under this provision, the Supreme Court has power to grant, in its
discretion, special leave to appeal from any judgement, decree, determination, sentence or order
in any cause or matter passed or made by any Court or Tribunal in the territory of INDISTHAN,
except a Court or Tribunal constituted by law relating to Armed Forces. In Article 136, the word
“judgement” and “decree” which are used in Articles 132 and 133 are retained. Similarly, the
words “judgement” and “sentence” occurring in Article 134 are also retained. But the expression
“final order” becomes “order”. Additionally, the words “determination”, “Tribunal” and “any
cause or matter” are used. They show that an appeal will lie also from a determination or order of
“any Tribunal” in any cause or matter.

B. MATTER IS WITHIN THE SCOPE OF THE COURTS’S JURISDICTION:

Paying due regard to the language used in Article 136 of the constitution, this Court is manifestly
invested with jurisdiction to entertain appeals from judgements, decrees, determinations,
sentences or orders in causes or matters passed by Courts and Tribunals. Tribunals which are
found vested with certain functions of a Court of Justice and have some of its trappings also
would fall within the ambit of Article 136 and would be subject to the appellate control of this
Court. When a Water Disputes Tribunal has been constituted by the Central Government as per
the provisions of the ISRWD Act, 1956, it is to be invested with the certain same powers as are
vested in a civil court under the Code of Civil Procedure, 1908. The Tribunal is a statutory
authority constituted under an Act made by the Parliament and this Court has jurisdiction to
 decide the parameters, scope, authority and jurisdiction of the Tribunal. This Court is the
ultimate interpreter of the provisions of the ISRWD Act and has an authority to decide the limits,
powers and the jurisdiction of the Tribunal constituted under the Act.

ISSUE-2: FINAL AWARD PASSED BY PWDT WAS UNFAIR ON THE PART OF

GANDHIVARI:

A. TRIBUNAL’S FAULT:

The Tribunal, in an unreasonable and inequitable manner, allocated water to Tamil Nadu for
irrigating an additional land on the vague ground of "merit and equity". This additional allocation
lay squarely outside the ambit of the 1925 Agreement and could not be termed as equitable
apportionment.

B. INTERNATIONAL WATER SHARING PRINCIPLES:

In the present case, the petitioner State, in whose territory the majority of the river basin lies, has
not been consulted, and neither has their welfare been taken into account while such clearance
was given. It is thus contended that the clearance given was not in accordance and was in
disharmony with the International principles of water sharing.

ISSUE-3: THE AGREEMENT OF 1925 BETWEEN GANDHIVARI AND MANJHIRA IS

INVALID AND LAPSED:

A. EXPIRY OF 1925 AGREEMENT:

The 1925 Agreement was not an agreement requiring a positive or affirmative act by either of the
states to go ahead with revocation but, on the contrary, to arrive at a common consensus for its
continuance and if the clauses of the Agreement are studiedly scrutinized or appreciated as an
instrument as a whole, its life span is 50 years and the same could not have continued, by any
stretch of imagination, after the expiry of the stipulated period.
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

ARGUMENTS ADVANCED

1. MAINTAINABILITY OF THE SPECIAL LEAVE PETITION BEFORE THE

SUPREME COURT OF INDISTHAN

A. INDISPUTABLE INHABITANCE OF JURISTICTION OF THE SUPREME COURT

OF INDISTHAN:

1. The existence of jurisdiction confers upon the Court, the authority to adjudicate any case
referred to it. Over and above the normal appellate powers conferred by Articles 132, 133 and
134 of the Constitution on the Supreme Court to hear appeals from the lower Courts and
Tribunals in constitutional, civil and criminal cases, a very special appellate jurisdiction is
conferred on the Court by Article 136.

2. Under this provision, the Supreme Court has power to grant, in its discretion, special leave to
appeal from any judgement, decree, determination, sentence or order in any cause or matter
passed or made by any Court or Tribunal in the territory of Indisthan, except a Court or
Tribunal constituted by law relating to Armed Forces. In Article 136, the word “judgement”
and “decree” which are used in Articles 132 and 133 are retained. Similarly, the words
“judgement” and “sentence” occurring in Article 134 are also retained. But the expression
“final order” becomes “order”. Additionally, the words “determination”, “Tribunal” and “any
cause or matter” are used. They show that an appeal will lie also from a determination or order
of “any Tribunal” in any cause or matter.

3. It is well known that an appeal is a creature of statute and there can be no inherent right of
appeal from any judgement or determination unless an appeal is expressly provided for by the
law itself. The powers given by Article 136 of the Constitution however are in the nature of
special or residuary powers which are exercisable outside the purview of ordinary law, in cases
 where the needs of justice demand interference by the Supreme Court of the land. The Article
itself is worded in the widest possible terms. The Constitution for the best of reasons did not
choose to fetter or circumscribe the powers exercisable under this Article in any way1.
4. Even though an order or determination given or made by a Court or a Tribunal constituted under
a statute provides for finality of judgement, the power of this Court under Article 136 granted by
the Constitution will override any stamp of finality given by a statute or Act passed by
Parliament.

B. MATTER IS WITHIN THE SCOPE OF THE COURTS’S JURISDICTION:

5. Paying due regard to the language used in Article 136 of the Constitution, this Court is
manifestly invested with jurisdiction to entertain appeals from judgements, decrees,
determinations, sentences or orders in causes or matters passed by Courts and Tribunals except
those constituted by or under any law relating to the Armed Forces2.

6. Tribunals which are found vested with certain functions of a Court of Justice and have some of
its trappings also would fall within the ambit of Article 136 and would be subject to the
appellate control of this Court. When a Water Disputes Tribunal has been constituted by the
Central Government as per the provisions of the ISRWD Act, 1956, it is to be invested with
the certain same powers as are vested in a civil court under the Code of Civil Procedure, 1908.

7. The Tribunal is a statutory authority constituted under an Act made by the Parliament and this
Court has jurisdiction to decide the parameters, scope, authority and jurisdiction of the
Tribunal. This Court is the ultimate interpreter of the provisions of the ISRWD Act and has an
authority to decide the limits, powers and the jurisdiction of the Tribunal constituted under the
Act.

8. The Court should exercise the wide powers bestowed in it under Article 136 of the
Constitution in a case of this nature and exercise its discretion.

9. In the reported judgment of State of Karnataka3, the Court has held that when judged by the
principles of statutory interpretation to understand the legislative intendment of Section 6(2), it
is clear as crystal that the Parliament did not intend to create any kind of embargo on the
jurisdiction of this Court. The said provision was inserted to give the binding effect to the award
passed by the Tribunal. The Court opined that the fiction has been created for that limited
1
Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors., AIR 1954 SC 520.
 purpose. Section 11 of the 1956 Act bars the jurisdiction of the courts and needless to say, that is
in consonance with the language employed in Article 262 of the Constitution.

10. In State of Tamil Nadu v. State of Karnataka and Ors. with Union Territory of Pondicherry v.
State of Karnataka and Ors4. to strengthen the stance that the Court has clearly expressed the
opinion that an appeal by special leave Under Article 136 of the Constitution is available to the
party aggrieved by an order of the Cauvery Water Disputes Tribunal and hence, the plea of
maintainability has no space for any kind of debate.

11. Section 6(2) of the 1956 Act says that the final order by the tribunal once published in the
Gazette has the force of an order or decree of this Court, the said provision, by no means,
deprives this Court to interfere with such decision by way of appeal by special leave because it
is a decision rendered by the tribunal and a tribunal always remains a tribunal, for all purposes,
and it is impossible to draw the inference that it ousts the jurisdiction of this Court Under
Article 136 of the Constitution. According to him, acceptance of such a stand would
tantamount to rewriting Article 136 itself.

12. Section 6(2) has been inserted by the Amending Act 14 of 2002 with effect from 06.08.2002 to
give teeth to the final order of the tribunal in accordance with the Sarkaria Commission's
recommendations given in its report on Center-State Relations, 1980. It is the settled principle of
law that even when there is a legal fiction, like a deeming provision, the interpretation of the
said provision should not go beyond the purpose for which the fiction was created or expand the
horizon which it was never meant to reach.

13. Section 11 of ISRWD stipulates that neither the Supreme Court nor any other Court shall have
or exercise jurisdiction in respect of any water dispute which may be referred to a tribunal
under the 1956 Act. The tribunal is constituted when a request is made Under Section 3 from
any State Government in respect of any water dispute. Section 4 of the 1956 Act provides that
the Central Government shall constitute a Water Disputes Tribunal if it is of the opinion that
the water dispute cannot be settled by negotiations. The 1956 Act, as we perceive, is in
consonance with Article 262 which empowers the Parliament to provide that neither the
Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or
complaint but the same has to pertain to Article 262(1). Thus, the bar on the jurisdiction of this
Court has to be in accord with the language employed in Article 262(1). Section 11 bars the
jurisdiction of this Court pertaining to original dispute or complaint. The language used in
2
Penu Balakrishna Iyer & Ors. v. Ariya M. Ramaswami Iyer & Ors., AIR 1965 SC 195.
3
(2017) 3 SCC 3.
4
1991 SCR (2) 501.
 Article 262(1) and Section 11 relate to a water dispute or complaint. It pertains to a dispute or
a complaint at the pre-adjudicatory stage. A complaint by the State Government is in a
different realm altogether. It is meant to invite the attention of the Central Government
pertaining to the fact that a water dispute had arisen or is likely to arise and it needs to be
addressed by constituting a tribunal.

14. Under Article 136 power of judicial review is conferred on this Court by the Constitution of
legislative action, judicial decision and administrative action and the said power of judicial
review is the basic feature of the Constitution which cannot be curtailed by a statutory provision
as enshrined Under Sections 6(2) and 11 of the 1956 Act, the tribunal is bound by the
Constitution and Rule of law and denial of power of judicial review to this Court Under Article
136 of the Constitution would be an obstruction in the process of adjudication and justifiable
decision making process, for it is the duty of the tribunal to render a decision which should be
made by application of established principles of law, namely, adherence to principles of natural
justice, good conscience, absence of arbitrariness, just and appropriate appreciation of evidence
on record, showing respect for precedents, demonstrable ratiocination that would show
application of mind and in such an adjudicatory process, it is inconceivable that the founding
fathers of the Constitution had contemplated creation of a tribunal with unguided, uncontrolled
or uncanalised judicial powers.

15. In P. Sambamurthy and Ors. v. State of Andhra Pradesh and Anr 5. It was held that it is a basic
principle of Rule of law that exercise of power by any authority must not only be conditioned
by the Constitution but must also be in accordance with law and that power of judicial review
is conferred by the Constitution with a view to ensure that the supremacy of law is sustain

5
1987 SCR (1) 879.
 2. FINAL AWARD PASSED BY PWDT WAS UNFAIR ON THE PART OF
GANDHIVARI:

TRIBUNAL’S FAULT

16.The Tribunal, in an unreasonable and inequitable manner, allocated water to Tamil Nadu for
irrigating an additional land on the vague ground of "merit and equity". This additional
allocation lay squarely outside the ambit of the 1925 Agreement and could not be termed as
equitable apportionment.
17.The Tribunal had recorded its findings based on conjectures and surmises rather than on
evidence.
18.The Tribunal's allocation of water was not based on the principles of equitable apportionment as
elaborated in the Helsinki Rules, 1966 which set out that such kind of apportionment must be
done to satisfy the needs of a basin State without causing substantial injury to a co-basin State.
19.The Tribunal allocated water on the basis of the 1925 Agreement which was based on flow rather
than on the basis of established and comparative needs of the parties. Gandhivari's stance before
the Tribunal had always been that the needs of the States, rather than the flow of the water, ought
to be the basis for apportionment. This need-based apportionment depends on the contribution of
water to the river valley by each State, the population of each State in the river basin and the
cultivable area of each State in the basin requiring application of water to grow crops. None of
these factors had been given due importance by the Tribunal even though they were highlighted
 by this Court in In Re: Presidential Reference (Cauvery Water Disputes Tribunal)6.
20.Such quantum of water had been allocated after taking into account the land in Manjhira which
was outside the scope and purview of the 1925 Agreement. Manjhira itself had consistently taken
the stand that the 1925 Agreement was the law on the subject and that the parties had to be
governed by the terms therein. Thus, Manjhira could not benefit from excess water allocated on
the basis of land which lay outside the scope of the 1925 Agreement. Over and above the
transgressions made by the Tribunal, it had also treated Gandhivari unfairly by failing to
consider the constraints imposed on Gandhivari's predecessor State and by overlooking the needs
of Karnataka while allocating water. The Tribunal has given several concessions to Manjhira
during the course of hearing and also granted Manjhira water far in excess of its needs and
outside the scope of the 1925 Agreement despite the evidence on record.
21.Alternatively, the allocation of water could be done equitably and in accordance with justice by
restoring equal rights to the party-States. Gandhivari and Manjhira were co-equal States and that
justice had to be done to both while allocating water, a fact which the Tribunal had failed to
recognise. The various applicable factors set out in the Helsinki Rules, 1966 were more or less
evenly balanced between the two States and the same have not been kept in view. Further, based
on the maxim that equality was equity, the balance or remaining volume of water available after
subtracting the share of Kunarwara and Lankashir and after accounting for wastage ought to have
been divided equally between Gandhivari and Manjhira7.
22.Manjhira obstructed the development of water projects in Gandhivari thereby resulting in large
tracts of land in Gandhivari remaining undeveloped. Manjhira wrongly invoked Gandhivari's so-
called obligation to obtain its consent under the 1925 Agreement.
23.The Tribunal applied the rule of priority contrary to the rules of equitable apportionment and
excluded large areas of land based on incorrect interpretation of the 1925 Agreement and also
reduced the water allocated to various water projects based on flimsy reasoning. By reducing the
allocation of water to various water projects in Gandhivari on the ground of constraint of water
availability/highly water-deficit basin.
24.The Tribunal had erroneously excluded a large coastal area while rejecting the argument for
groundwater. The Tribunal committed a patent error by failing to reduce the amount of water
allocated to Manjhira despite recognising the availability of ground water in Manjhira and the
conjunctive use of the same along with surface water. Such quantum of ground water ought to
have been factored in as an available/additional resource in Manjhira for the purposes of

6
In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522.
7
M.C.Mehta v. Union of India, (2001) 3 SCC 756.
 irrigation.8
25.The Tribunal had incorrectly rejected all schemes for lift irrigation in its final order. This was
problematic for Gandhivari which relied upon lift irrigation, particularly in drought-prone areas.
Manjhira, on the other hand, primarily relied on flow irrigation and minor irrigation and did not
have any major lift irrigation schemes. Thus, the Tribunal's order rejecting all lift irrigation
schemes substantially affected Gandhivari while making negligible impact on Manjhira9.

8
T. N. Godarvarman Thirumalpad v. Union of India, AIR 2005 SC 4256.
9
Association for Environmental Protection v. State of Kerala & Ors. (2013) 7 SCC 226.
NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

3. THE AGREEMENT OF 1925 BETWEEN GANDHIVARI AND MANJHIRA IS

INVALID AND LAPSED

A. INFRACTION OF ARTICLE 363 AND NON-MAINTAINABILITY OF THE

DISPUTE ON THE BASIS OF AGREEMENT:

46. Article 363 commences with a non-obstante clause but subject to the provisions of Article
143 and that would exclude anything contained in Article 262(1) and, therefore, the bar
under Article 363(1) must prevail.
47. The agreement of the present nature come within the purview of Article 363, a complaint
for raising a dispute under Article 262 of the Constitution can be independent without the
base or foundation of the 1925 agreement but to structure the stand on the fulcrum of the
agreements would run counter to Article 363 of the Constitution as has been held by the
Constitution Bench in State of Seraikella v. UOI & Anr.

B. EXPIRY OF 1925 AGREEMENT:

48. The 1925 Agreement was not an agreement requiring a positive or affirmative act by
either of the states to go ahead with revocation but, on the contrary, to arrive at a common
consensus for its continuance and if the clauses of the Agreement are studiedly scrutinized
or appreciated as an instrument as a whole, its life span is 50 years and the same could not
have continued, by any stretch of imagination, after the expiry of the stipulated period.
49. The Constitution Bench in the Presidential Reference has twice stated that both the
agreements have expired and no application for review or modification was filed by the
State of Tamil Nadu and rightly so, as anyone connected with the agreement was well
aware that the agreements stood expired.
50. The clauses in the Agreement explicitly show that the 1925 Agreement comes to an end
after the expiry of 50 years. For the said purpose, emphasis is laid on the language
employed in of the Agreement, the Tribunal should have proceeded on the basis of the
language employed in the Agreement.
51. The contract do not indicate permanency but, on the contrary, indicate fixed term and that
is intend to construe the same. The continuance of contract, as it was further a subjective
consideration and merely agreed upon and, therefore, to hold that it continued solely
because of the experience gathered would not be appropriate and it would be contrary to
the concept of understanding the clauses in a contract to give effect to its continuance.
 NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

PRAYER

Wherefore it is humbly prayed, in the light of issues raised, arguments advanced and authorities
cited, that this Hon’ble Court may be pleased to adjudge and declare that:

1. The Special Leave Petition by State of Gandhivari is maintainable.

2. The distribution of water by PWDT is unjust.

3. The agreement of 1925 is lapsed and void.

4. The division of water available after subtracting the share of Kunarwara and Lankashir and
after accounting for wastage ought to have been divided equally between Gandhivari and
Manjhira.

And pass any other Order or Direction that it may deem fit in the light of Equity, Justice
and Good Conscience for which the counsel may forever pray.

Sd/-

(Counsel for the Petitioner)

 NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

APPENDIX

ABBREVIATIONS USED:

¶ Paragraph
¶¶ Paragraphs
& And
AIR All India Reporter
Art. Article
BLJR Bihar Law Journal
CBD Convention on Biological Diversity
Ch. Chapter
Co. Company
Doc. Document
Ed. Edition
EPA Environment Protection Act
MoEF Ministry of Environment and Forest
Ors. Others
p. Page no.
pp. Pages
Raj. Rajasthan
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
Supp. Supplementary
TMC Thousand Million Cubic
U.S United States
UN United Nations
WCED World Commission on Economic Development
WPA Wildlife Protection Act
(P) Ltd. Private Limited
CWC Central Water Commission
Vol. Volume
ISRWD Act Inter State River Water Dispute Act
 NLUJAA, 7th SEMESTER CURRICULUM MOOT, 2019

EXHIBITS

CONSTITUTIONAL PROVISIONS

Art.136: Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law relating to
the Armed Forces.

Art.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 ).

Art.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; 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 commencement, or
which provides that the said jurisdiction shall not extend to such a dispute.

Seventh Schedule,List I-entry 56: Regulation and development of inter-State rivers and river
valleys to the extent to which such regulation and development under the control of the Union is
declared by Parliament by law to be expedient in the public interest.

Art.21: Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure
established by law.

Art.48A: Protection and improvement of environment and safeguarding of forests and wild life

The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country.

ISRWD Act,1956

Sec.2: Definitions. In this Act, unless the context otherwise requires,--

(a) " prescribed" means prescribed by rules made under this Act;
(b) " Tribunal" means a Water Disputes Tribunal constituted under section 4;
(c) " water dispute" means any dispute or difference between two or more State Governments
with respect to--
(i) the use, distribution or control of the waters of, or in, any inter- State river or river valley; or
(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of
such waters or the implementation of such agreement; or
(iii) the levy of any water rate in contravention of the prohibition contained in section 7.

Sec.3: Complaints by State Governments as to water disputes.

If it appears to the Government of any State that a water dispute with the Government of another
State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any
of the inhabitants thereof, in the waters of an inter- State river or river valley have been, or are
likely to be, affected prejudicially by--

(a) any executive action or legislation taken or passed, or proposed to be taken or

passed, by the other State; or
(b) the failure of the other State or any authority therein to exercise any of their powers
with respect to the use, distribution or control of such waters; or
(c) the failure of the other State to implement the terms of any agreement relating to
the use, distribution or control of such waters, the State Government may, in such form
and manner as may be prescribed, request the Central Government to refer the water
dispute to a Tribunal for adjudication.

Sec.11: Bar of jurisdiction of Supreme Court and other courts.

Notwithstanding anything contained in any other law, neither the Supreme Court nor any other
court shall have or exercise jurisdiction in respect of any water dispute which may be referred to
a Tribunal under this Act.