State of Odisha v. Govt. of India and Anr

ORDER %

19.11.2012

¶1The State of Odisha, the petitioner herein, has laid a challenge to the impugned notification dated 08.05.2012 issued in exercise of powers P"Se1of8 V conferred under Section 4(2) read with Section 5(A) of the Inter-State River Water Disputes Act, 1956 (hereinafterreferred to as the said Act) appointing Justice Ghulam Mohammed, retired Judge of the High Court of Andhra Pradesh as a member of the Vansadhara Water Dispute Tribunal.

¶2It is in pursuance of the judgment of the Hon'ble SupremeCourt in the State of Odisha Vs. GovernmentofIndia, (2009) 5 SCC 492, that the Central Govemment had issued earher a similar notification dated

24.02.2010 constituting the said three member Tribunal consisting of Justice B.N. Agrawal (retired Judge of the SupremeCourt), Justice Nirmal Singh (Retd.) and Justice B.N. Chaturvedi (Retd.). However, Justice B.N. Agrawal resigned and in his place Justice M.K. Sharma(Retd.) Judge, SupremeCourt of India was appointedas the Chairman. JusticeNirmalSinghalso resignedandto fill up the said vacancyJustice GhulamMohammed(Retd.)has been appointed. The grievanceof the petitioneris that the river disputeis betweenthe Stateof Odisha and the State of Andhra Pradesh, and Justice Ghulam Mohammed hails from Andhra Pradesh and, therefore, the petitioner perceives a possibility of a bias.

¶3The State of Odisha, on the aforesaid notification being issued, vide its letter dated 04.06.2012 had raised the said objection to the constitution of the Tribunal where Justice Ghulam Mohammed was the member. However, the Central Govemment vide its letter dated 06.09.2012 rejected the objection of the petitioner. Page2 of8 VJ V

¶4We may note here that the relevant records have been produced by the learned ASG before us which show that the Tribunal was so constituted on the recommendation of the then Hon'ble Chief Justice of India and when the objectionwas raisedby the petitioner,the paperswere sent to the thenHon'ble Chief Justice of India for his view, who found no reason to change his earlier recommendation. The records show that the then Hon'ble Chief Justice opinedthatthe notificationhavingbeen issuedquathe re-constitutedTribunal, there could be no change of composition. However, it was further observed that there was no ground made out in the representation of the petitioner for de-notificationof the appointment. It is lastly mentioned that even otherwise the Tribunal is a three-member bench where a Supreme Court Judge is its Chairman and two High Court Judges are its member.

¶5Insofar as the provisionsof the said Act are concerned,it is not disputed that there is no specificmechanismprovidedunder the Act to lay a challenge ^ to the constitutionof the Tribunal. However, it is relevant to reproduce Section 11 of the said Act, which reads as under: "11. Bar ofjurisdiction 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. "

¶6The submission of learned senior counsel for the petitioner is that Section 11 would be triggered of only where there is an exercise of jurisdictionbytheTribunalinrespectof a waterdisputebutinthepresentcase 3of8 u the challenge is laid to the composition of the Tribunal. It is further pointed out to us that the petitioner has, in fact, made an application before the .Tribunal seeking recusal of the learned Judge but vide an order dated

03.10.2012, the apphcation was rejected as the Hon'ble Judge found no reason to recuse himself from the Tribunal.

¶7Learned senior counsel for the petitioner has tried to couch his submissions in a guarded language, conscious of the nature of the plea sought to be raised. On a Court query being raised that if a disqualification can be pleaded in the petition on the basis of the Hon'ble Judge hailing from a particular^te, which was party to the river water dispute,the consequences would be much large, as the Hon'ble Judges - both in the Supreme Court and the High Courts deal with the matters which may have impact in terms of its result on the issues of caste, community and region, learned counsel submitted that his plea could never be to enlarge the scope of scrutiny to that extent, but he was seeking to confine his submissions to an aspect of river water dispute which is an emotive issue. He submits that there should not only be fairness in play, but also perceived fairness in play. V

¶8Learned senior counsel for the petitioner sought to articulate his submissions further by submitting that the State is in a nature ofparens patrie and, thus, a resident hailing from a State, which was party to the river water dispute, may find himself unnecessarily burdened.

¶9Learned counsel submitted that there was no specific reason to perceive Page4 of 8 a bias against the particular Judge, but his submission was on a larger plain that, in case of a river water dispute, no Judge hailing from one of the States party to the dispute should be appointed as its member. He added that since the learned Judge was bom, grew-up and practiced in the Courts at Andhra Pradesh and continued to reside in the State after retirement, he is personally ^ domiciledin the State and, thus, inhabitantof the State. Since the disputes y have been referred to the Tribunal for adjudicationon a complaint dated

28.02.2009 filed by the State of Andhra Pradesh on its own behalf, as well as on behalf of the interest of the 'inhabitants' of the State, the complaint has to be treated as one also on behalf of the leamed Judge. There was, thus, at least a possibility of a bias or really a likelihood of a bias and, thus, natural justice and fairplay would require the re-constitution of the Tribunal.

¶10The aforesaid plea is sought to be buttressed by the fact that in the previously constituted Tribunal under the said Act, never a resident of the ^ participatingStatehad beenmadeamember. Leamedcounselfairlyconcedes that there is no rule & regulation in this behalf but this is a convention or an unwritten rule, which has been so followed. V ^

¶11On the otherhand, the petitionis stronglyopposedby the leamedASG appearing for the Union of India as well as the learned senior counsel for the respondent No. 2, the State of Andhra Pradesh.

¶12On examination of the plea of the parties, we are afraid that we do not agree with the submissionsof leamed senior counsel for the petitioner,albeit v.; cast in very appropriate language. We cannot lose sight of the fact that our country has diversity of region, religion, caste, community and other characteristics. There is still perceived a unity in diversity which holds the country together. There may be disputes which are localized to a region, or there may be qua different regions. States, castes, communities. If we were to accept the plea of learned senior counsel for the petitioner, it would be Y' difficultto restrain the applicationof this principle only to a river water dispute. There may be parties, who may act mischievously by claiming that the composition of benches should exclude persons from certain region, religion or castes. This would be completely unacceptable. A Judge is trained to act in a dispassionate manner and take an objective and impartial view of the matter, uninfluenced by irrelevant considerations which would include as to the region from which he hails or the caste or community to which he belongs. j

¶13It is not as if there is any specific allegationor plea raised qua the learnedJudge in particular,but it is only a perceivedpossibilityof a biasbased on the region from where the learned Judge hails. This cannot, in our view, be treated to be a reasonable possibility of a bias. '0

¶14We may also note that the recommending authority and the Union of India have both appliedtheir mindto the matter in issue and we are unableto accept the plea of learned senior counsel for the petitioner that appointment may have occurredpossiblyon accountof a mistake—as if the factum of the learnedJudge hailingfrom AndhraPradeshhas been missedout. In fact, the fV.P.(C.) 7203/2012 Page6of8 v:- very appointmentshows that he has been the Judge of the Andhra Pradesh High Court. Similarly,the recommendationmade by Hon'ble,the then Chief Justice of India, also shows that the recommendingauthoritywas naturally quite consciousofthe Statesbetweenwhomthe disputewas existingand as to whichHigh Courtthe learnedJudge appointedbelongedand where he hailed from. The Tribunal itself has also not found any reason (the member, in particular)why the saidmembershouldrecusehimselffrom the Tribunal.

¶15We are, thus, not inclinedto interferewiththe impugnednotificationin exerciseof ourjurisdictionunderArticle226 ofthe ConstitutionofIndia.

¶16Dismissed.

¶17At this stage,learnedseniorcounselforthe petitionerseeksa certificate of fitness to appeal before the Supreme Court under Article 134A of the Constitution of India. It is his submission that Article 262 of the Constitution of India,whichdeals withadjudicationof disputesrelatingto inter-Staterivers or river valleys, ousts the jurisdictionof the judicial forums and, thus, the presentmatterin view ofArticle132 involvesa substantialquestionoflaw as to the interpretationof the Constitution. In the alternative,he prays that it at least raises a substantialquestionof law of general importanceas envisaged under Article 133 of the Constitution.

¶18We are unableto acceptthis pleafor the reasonthatthe issuewhichwe have decided is restrictedto the aspect of disqualificationof a Judge to be a member of a Tribunalonly on the plea that the Hon'ble Judge hails from a 7of8 particular region/State, which is party to the dispute before the Inter-State Water Dispute Tribunal.

¶19Order Dasti. NOVEMBER 19, 2012 'BSR'

SANJAY KISfiAN KAUL, J. VIPINSANGHI, J.

s 15. * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C.) 7203/2012 and C.M. No. 18564/2012(for stay) STATE OF ODISHA .... Petitioner Through; Mr. Raju Ramachandran, Senior Advocate along with Mr. M.V. Katarki, Mr. R.S. Jena & Mr. S. Panda, Advocates. versus GOVT. OF INDIA AND ANR. Respondents Through: Mr. Rajeeve Mehra, ASG, Mr. Sumeet Pushkama, CGSC, Mr. Gaurav Verma, Advocate along with Mr. Asit Chaturvedi, Deputy Commissioner, Ministry of Water Resources, for the respondent No.l/UOI. Mr. S.S. Prasad, Senior Advocate along with Mr. Y. Rajagopala Rao & Ms. Y. Vismai Rao, Advocates for the respondent No.2. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE VIPIN SANGHI