KACHCHH JAL SANKAT NIVARAN SAMITI & ORS.versusSTATE OF GUJARAT & ANR.

                                                                        "




                      [2013] 17 S.C.R. 583


     KACHCHH JAL SANKAT NIVARAN SAMITI & ORS.                      A
                                v.
                 STATE OF GUJARAT & ANR.
                (Civil Appeal No. 2957 of 2013)
                         JULY 15, 2013
                                                                   B
            [CHANDRAMAULI KR. PRASAD AND
                 V. GOPALA GOWDA, JJ.]

        Judicial Review - Of policy decision - Scope of - Held:
· Court has very limited jurisdiction to interfere with policy C
   decisioh - It can interfere with the policy only if ii is
  inconsistent with the constitutional provisions or is arbitrary or
  irrational - The Court does not have expertise to l;;w down
  policy for distribution of water within State - There being no
  judicially manageable standards for allocation bf water, it shall o
  be appropriate to leave it to be decided by the experts of the
  irrigation management system and water resources
  management.

     Constitution of India, 1950 - Articles - 38(2) a~d 39(b) -
 Decision of allocation of water within the State - Challenged     E
 as having been taken in disregard to Arts.38(2) and 39(b) "'T
 Held: The challenge is misconceived.

      Narmada Water Disputes Tribunal was constituted to
 decide the lnt~r-State dispute for sharing of water of river      F
 Narmada. The Tribunal after hearing the references of
 Union of India .and States of Gujarat, Madhya Pradesh,
 Maharashtra and Rajasthan, by its final award allocated
 Narmada water at Sardar Sarovar Dam site, to the different
 States. It allocated 9.00 Million Acre Feet (MAF) lll(ater to     G
 the State of Gujarat,. against its claim for 20.73 MAF of
 water, which .included 6.57 MAF of water required for the
 District of Kutch. The State of Gujarat, out of the 9.00 MAF
 water, allocated 0.15 MAF of water.                      ·
                               583                                 H
     584      SUPREME COURT REPORTS            [2013) 17 S.C.R.

A         The appellants aggrieved by the amount of water
     allocated to the Kutch district, filed Writ Petition (PIL),
     which was dismissed by the High Court.
      In appeal to this Court, the appellants inter alia
  contended that allocation of amount of water to the
8
  District of Kutch was in disregard to the constitutional
  provisions u/Arts. 39(b) and 38(2).

           Dismissing the appeal, the Court

c      HELD: 1. There is wide separation of powers
  between the different limbs of the State an,d, 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
0 to do is to conduct a comparative study and hold that the
  policy of distribution of water is bad. The Court does not
  have the expertise or 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
E 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. The matters
  affecting the policy and requiring technical expertise be
  better left to the decision of those who are entrusted and
F qualified to address the same. This Court shall step in
  only when it finds that the policy is inconsistent with the
  Constitutional laws or arbitrary or irrational. [Para 9] [592-
  F-H; 593-A]
·G      2. The Court does not have the expertise to lay down
   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 hlfs
H no concern so long it is within the Constitutional limits.
  '
  KACHCHH JAL SANKAT NIVARAN SAMITI Ir. STATE OF 585
       .           GUJARAT           .

Even if it is assumed that this Court has the expertise, it A
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 shall not B
be appropriate for adjudication by this Court when it
involves multiple variable and interlocking factors,
decision on each of which has bearing on others. [Para
1O] [593-8-D]                                              .

       3. The State of Gujarat had emphasized the need of
                                                            c
more water for .the District of Kutch before the Narmada
Water Disputes Tribunal and projected all those pleas
which have been projected be.fore this Court by the
appellants, bul' the same did not find favour with the
.Tribunal and the Tribunal allocated only 9.00 MAF water D ·
instead of 22.02 MAF water claimed before the Tribunal.
Therefore, they were left with little amount of water. In the
face of it, less amount of water than what has been
claimed by the appellants was allocated for the District
of Kutch. The allocation of water is a matter of policy and E
how much water is to be released from the canal and for
 that matter a particular area or how much water is to be
 left with other regions are matters which require delicate
 balancing and consideration of complex social and
 economic consideration. There being rro judicially F
 manageable standards, it shall be appropriate to leave it
 to be decided by the experts of the irrigation management
system and water resources management. [Para 12] [593-
 G-H; 594-A-C]
                                                              G
       4. The State Government projected the need of Kutch
 area before the Tribunal but the same did not appeal to
 it. In fact, the award of the Tribunal has got the seal of
approval of this Court and the State Government having
accepted the decision of the Tribunal, its action cannot H
    586 SUPREME COURT REPORTS                [2013] 17 S.C.R.


A   be termed as arbitrary only on the ground that all those
    factors were not considered while making allocation to
    the district. [Para 13] [594-D-E]

         5. It is not <;orrect to say that while making
8   distribution, the State Government did not take in~o
    account the policy underlying Article 39(b) of the
    Constitution. The distribution of material resources is to
    be effected in the manner to subserve the "common
    good" and this expression is not to be confined for the
C   Kutch District only but to the other regions of the State
    also. [Para 13] [594-E-F]

         6. The complaint of the appellants of non-adherence
    to the mandate of Article 38(2) of the Constitution is also
    misconceived. The State is to strive to minimize the
D   inequalities in income and endeavour to eliminate
    inequalities in status, facilities and opportunities not only
    amongst individuals but also amohgst group of people .
    residing in different parts or engaged in different.
    vocations. But this does not mean that for achieving that,
E   the State Government has to apply it on the basis of the
    number of people residing in different parts only. Other
    factors just cannot be forgotten. [Para 14] [594-G-H; 595-
    A]

        7. There being no judicially manageable standards
F
    for allocation of water, any interference by this Court
    would mean interference with the day-to-day functioning
    of the State Government. In view of separation of
    powers, this Court cannot charter the said path. [Para 15]

G        Tata Cellular vs. Union of India (1994) 6 SCC 651: 1994
    (2) Suppl. SCR 122 - referred to.
                        Case Law Reference:
        1994 (2) Suppl. SCR 122       referred to    Para 7
H
 KACHCHH JAL SANKAT NIVARAN SAMITI v. STATE OF 587
                  GUJARAT
    CIVIL APPELLATE JURISDICTION : Civir Appeal No.                    A
2957 of 2013.

    From the Judgment and Order dated 04.10.2005 of the
High Court of Gujarat at Ahmedabad in Special Civil
Application No. 3358 of 1999.
                                                                       B
   Altaf Ahmed, R. S. Suri, Deepayan Mandal, Pallavi Tayal
Chadela, Chanchal Kumar Ganguli for the Appellants.

     Shyam Diwan, Hemantika Wahi for the Respondents .
                            .,.,               '•                      c
    The Judgment of the'Court was delivered by
              .                    .
     CHANDRAMAULI KR. PRASAD,J. 1. Appellant no. 1,
Kachchh Jal Sankat Nivaran SamiU~claims to be a non-political
organization established with the object amongst others to work
to alleviate the District of Kutch of its perennial water scarcity     D
and to mitigate the resultant problems faced by the inhabitants
and the residents. Other appellants have also interest in the
cause espoused by appellant no. 1. Aggrieved by the meager
allocation of water from Sardar Sarovar Project to the District
of Kutch they approached the Gujarat High Court in a public            E
interest litigation inter alia praying for issuance of a writ in the
nature of ·mandamus or any other appropriate writ, order .or
direction directing the respondent, the State of Gujarat and its
functionaries to allocate more water from Sardar Sarovar
 Project to the District of Kutch. By the impugned order the           F
 prayer made by the appellants has been rejected and against
the dismissal-ofthe Vfrit petition they are before us with the leave
of the Court.

     2. Water is essential for survival of universe. It is not
available for human use in plenty and hence disputes existed           <:3.
between various States for its sharing. In the year. 1969·, the
Government of India in exercise of its power under Section 4
of the Inter-State Water Disputes Act, 1956 constituted
Narmada Water Disputes Tribunal (hereinafter referred to as
"the Tribunal"), to decide the Inter-State dispute of sharing of       H
    588      SUPREME COURT REPORTS               [2013] 17 S.C.R.


A water of river Narmada. The Tribunal handed over its award on
  16th of August, 1978. As provided under Section 5(3) of the
  Inter-State Water Disputes Act, (hereinafter referred to as "the
  Act"), the Union of India and the States of Gujarat, Madhya
  Pradesh, Maharashtra and Rajasthan made references. Those
B references were heard by the Tribunal which gave its final award
  on 7th of December, 1979. It was published on 12th of
  December, 1979 in the Extraordinary Gazette of the
  Government of India. While giving the award, the Tribunal
  considered the issue pertaining to allocation of water, height
c of the dam, hydrology and other related issues. As regards the
  issue of allocation of Narmada water at Sardar Sarovar Dam
  site, the Tribunal allocated 9.00 Million Acre Feet (for short
  "MAF") to the State of Gujarat whereas 18.25 MAF, 0.50 MAF
  and 0.25 MAF were allocated to the States of Madhya
D Pradesh, Rajasthan and Maharashtra respectively. It is relevant
  here to state that the State of Gujarat laid claim for 20. 73 MAF
  of water out of the total demand of 22.02 MAF of water before
  the Tribunal, which included 6.57 MAF water for reclaiming and/
  or irrigating 12.17 lakh acres of land of the District of Kutch
  under Zone Xl-C, Banni and Ranns. However, the claim of the
E State of Gujarat was turned down by the Tribunal on its finding
  that these areas are barren and sparsely populated. Its soil is
  highly saline having very low permeability and vertical
  permeability of nearly nil. It has high ground water table and
  impervious layer near the ground water surface, high
F evaporation and low rainfall. In this way the Tribunal rejected
  the claim of State of Gujarat for irrigating 11 lakh acres of land
  in Banni and Ranns areas and as stated, allocated 9.00 MAF
  of water. How the water allocated to each of the States shall
  be utilised was left to the choice of the State Government. As
G it was not a case of plenty, the State Government of Gujarat
  out.of 9.00 MAF water, allocated 7.94 MAF water for irrigation
  and 1.06 MAF water for domestic and industrial use and
  because of the limited water allocation, the proportionate water
  requirement for Kutch region was worked out as 0.15 MAF.
H
 KACHCHH JAL SANKAT NIVARAN SAMIT! v. STATE OF 589
    GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
      3. The appellants are aggrieved by aforesaid meager             A
allocation of water and, according to them, the State
Government has not distributed the water keeping in mind the
Directive Principles of the State Policy as enshrined under
Article 39(b) of the Constitution of India which inter alia obliges
the State to make the policy in such a way that the material          8
resources of the community are so distributed as best to
subserve the common good. Appellant further contended that
by meager allocation of water, the State Government also did
not carry out its obligation as mandated under Article 38(2) of
the Constitution which casts a duty on it to strive to minimise
the inequalities in income and make an endeavour to eliminate         C
inequalities in the status, facilities and opportunity amongst
individuals and groups of people residing in different areas of
the State. The plea of the State Government is that out of the
limited water allocated to it by the Tribunal, it had made the best
use of that. It has also been pointed out that the allocation         D
complained of is not static and shall vary from time to time and
the quantity of water allocated for Kutch District may increase.
It has also been averred that while making allocation to Kutch
District, the State Government has kept in view the interest of
all concerned and also the factors relevant for the purpose.          E
According to the respondent-State Government, it laid a claim
for 20.73 MAF of water out of the total demand of 22.02--MAF
 water before the Tribunal which included 6.57 MAF for Kutch,
 but only 9.00 MAF water was allocated and the award of the
 Tribunal having been approved by the Supreme Court, the State        F
 Government has to distribute the limited water allocated to it. It
 has also been pointed out that the allocation made for the
 District of Kutch has been increased in later years.

     4. The High Court has analysed in detail the pleas raised        G
by the parties and declined to interfere with the same, inter alia,
on the grounds that the decision involved balance of competing
claims of the natural res°'l:!rces and there is no judicially
manageable standard for adjudication for allocation of water

                                                                      H
    590 SUPREME COURT REPORTS                       [2013] 17 S.C.R.

A   in favour of any region within the State. While doing so, the High
    Court observed as follows:

         "In our opinion, the above observations would answer the
         submissions advanced by the learned. counsel of the
         petitioners. We are not here to weigh the pros and cons
B        of the policy or scrutinize it and test the degree of its
         beneficial or equitable disposition for the purpose of
         varying, modifying or annulling it, unless it is arbitrary or
         violative of any constitutional, statutory or any other
         provision of law. Needless to say that the petitioners have
c        not challenged these decisions on the ground that as they
         are arbitrary nor have they pointed out that they are
         unconstitutional or violative of statutory or any other
         provisions of law. The Government, in the instant case,
         decided to accept the· award of the NWDT which is based
D        on the expert opinion and now we are asked to test the
        ·utility, beneficial effect etc. of the policy on the basis of the
         affidavit filed before us ...... "

      5. The High Court further obser\ied that the issue raised
E requires determination of the choice of priorities and it is not
  subject to judicial review. The High Court, in this connection,
  observed as follows:

        "29. Apart from that, determining the choice of priorities
        and formulating perspective thereof is a matter of policy
F       and it is not within our domain to interfere with the sole
        question of efficacy or otherwise of such policy unless the
        same is "vitiated" of in violation of any provisions or the
        statute or Constitution of India."

G      6. Mr. Altaf Ahmed, Senior Counsel appears on behalf of
  the appellants and takes a stand that the appellants do not seek
  determination of appropriate quantity of water for the District
  of Kutch but the plea is that the policy of distribution is based
  on irrelevant consideration and, therefore, subject to judicial
H review. According to him, it lacks transparency and exhibits
 KACHCHH JAL SANKAT NIVARAN SAMITI v. STATE OF 591
    GUJARAT [CHANDRAMAULI KR. PRASAD, J.]

extreme prejudice and discrimination against Kutch District. A
According to him, while making the policy, the relevant factors
were ignored and irrelevant and extraneous factors have been
taken into account. He points otit that the State of Gujarat while
claiming large share of water from river Narmada before the
Tribunal relied heavily upon the need of Kutch District to get B
more water but after the award, did not stick to its stand after
the allocation was made by the Tribunal. He has brought to our
notice the comparative data regarding allocation of water to the
various districts and points out that the same indicates
discriminatory allocation of water to the Kutch area. Mr. Ahmed        c
draws our attention to Article 39(b) of the Constitution of India
and submits that the State while dealing with the distribution of
water did not respect the constitutional philosophy that the State
shall distribute the material resources as best to subserve
"common good". It has also been contended that the natural
                                                                    0
 resources are held by the Government as trustee for the benefit
of the citizens and, therefore, the State Government is required
to manage and utilize them in the best interest of the society.
While making distribution, according to Mr. Ahmed, the State
 Government totally lost sight of Article 38(2) of the Constitution
 which stipulates that the State shall endeavor to minimize E
 inequalities in the facilities and opportunities amongst people.

     7. On account of all these infirmities, the impugned policy
deserves to be looked into by this Court in exercise of its power
of judicial review, contends Mr.Ahmed. Reliance has been               F
placed in support of aforementioned contention to a decision
of this Court in the case of Tata Cellular vs. Union of India
(1994)6 SCC 651. Our attention has been drawn to the
following passage from the said judgment:

     "70. It cannot be denied that the principles of judicial review   G
     would apply to the exercise of contractual powers by
     Government bodies in order to prevent arbitrariness or
     favouritism. However, it must be clearly stated that there
     are inherent limitations in exercise of that power of judicial
                                                                       H
    59?       SUPRE.ME CO.ldRT REPORTS               (2013) 17 S.C.R.


A         review. Government is the guardian of the finances of the
          State. It is expected to protect the financial interest of the
          State. The right to refuse the lowest or any other tender is
          always available to the Government. But, the principles laid
          down in Article 14 of the Constitution have to be kept in
B         view while accepting or refusing a tender. There can be
          no question of infringement of Article 14 if the Government
          tries to get the best person or the best quotation. The right
          to choose cannot be considered to be an arbitrary power.
          Of course, if the said power is exercised for any collateral
c         purpose the exercise of that power will be struck down"

       8. Mr. Shyam Diwan, Senior Counsel representing the
  State of Gujarat states that the issue regarding allocation of
  water to the districts of Gujarat is a matter of policy and the
  scope of judicial review in this regard is narrow. According to
D him, the policy has been framed after consulting technical
  experts in the best interest of the people and, therefore, does
  not call for any interference by this Court in exercise of its power
  of judicial review.

E       9. We have given our most anxious consideration to the
  rival submissions and we find substance in the submission of
  Mr. Diwan. 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
F 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 or wisdom to analyse the same. It entails intricate
G 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
H
 KACHCHH JAL SANKAT NIVARAN SAMIT! v. STATE OF 593
    GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
expertise be better left to the decision of those who are             A
entrusted and qualified to address the same. This Court shall
step in only when it finds that the policy is inconsistent with the
Constitutional laws or arbitrary or irrational.

      10. Candidly speaking, we do not have the expertise to
                                                                      8
lay down policy for distriblltion of water within the State. It
involves collection of various data which is variable and many
a times policy formulated will have political overtones. lt 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      C
field earmarked for .the ex~cutive. 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        D
Court when it involves multiple variable and interlocking factors,
decision on each of which has bearing on others. While
disposing of an interlocutory application in this very appeal by
order dated 22nd of July, 2011, this Court observed as follows:
                                                                      E
     "We are of the opinio_n that the prayer for allqcation of
     adequate water in Kuchchh district is not one which can
     be a matter of judicial review. It is for th!l--executive
     authorities to look into this matter. As held by this Court in
     Divisional Manager, Aravali Golf Club & Anr. vs.                 F
     Chander Hass & Anr.. (2008) 1 SCC 683, there must be
     judicial restraint in such matters."

     11. We are in respectful agreement with the view aforesaid.

      12. The State of Gujarat emphasized the need of more G
water for the District of Kutch before the Tribunal and projected
all those pleas which have been projected before us by the·
appellants but the same did not find favour with the Tribunal and
the Tribunal allocated 9.00 MAF water instead of 22.02 MAF
water claimed before the Tribunal. Therefore, they were left with H
    594 SUPREME COURT .REPORTS                    [2013] 17 S.C.R.


A   little amount of water. In the face of it, less amount of water than
    what has been claimed by the appellants was allocated for the
    District of Kutch. The allocation of water is a matter of policy
    and how much water is to be released from the canal and for
    that matter .a particular area or how much water is to be left
B   with other regions, in our opinion, are matters which require ·
    delicate balancing and consideration of complex social and
    economic consideration. In our view, there being no judicially
    manageable standards, it shall be appropriate to leave it to be
    decided by the experts of the irrigation management system
C   and water resources management.                                   -
                                                                      .
          13. The plea of the appellants that those factors which were
    projected by the State Government itself before the Tribunal are
    not being adhered to and its action is arbitrary, does not appeal
    to us. The State Government also projected the need of Kutch
D   area before the Tribunal but the same did not appeal to it. In
    fact, the award of the Tribunal has got the seal of approval of
    this Court and the State Government having accepted the
    decision of the Tribunal, its action cannot be termed as arbitrary
    only on the ground that all those factors were not considered
E   while making allocation to the district. As regards the complaint
    of the appellants that while making distribution, the State
    Government did not take into account the policy underlying
    Article 39(b) of the Constitution, we must observe that the
    distribution of material resources is to be effected in the
F   manner to·subserve the "common good" and this expression
    is not to be confined for the Kutch District only but to the other
    regions of the State also.

         14. The complaint of the appellants of non-adherence to
    the mandate of Article 38(2) of the Constitution is also
G   misconceived. The State, in our opinion, is to strive to minimize
    the inequalities in income and endeavour to eliminate
    inequalities in ·status, facilities and opportunities not only
    amongst individuals but also amongst group of people residing
    in different parts or engaged in different vocations. But this
H
 KACHCHH JAL SANKAT NIVARAN SAMITI v. STATE OF                   595
    GUJARAT [CHANDRAMAULI KR. PRASAD, J.f

does not mean that for achieving that the State Government has           A
to apply it on the basis of the number of people residing in
different parts only. Other factors just cannot be forgotten.. '

     15. We are in total agreement with the conclusion and
reasoning given by the High Court and we reiterate that there
                                                                         8
being no judicially manageable standards for allocation of water,
any interference by this Court would mean interference with the
day-to-day functioning of the State Government. In view of
separation of powers, this Court cannot charter the said path.
                '
      16. In the result, we do not find any m~rit in this appeal which   C
is dismissed accordingly but without any order as to costs.
Kalpana K. Tripathy                                 Appeal dismissed.