STATE OF KARNATAKA BY ITS CHIEF SECRETARY versus STATE OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI] 829 THE STATE OF KARNATAKA BY ITS CHIEF SECRETARYSTATE OF TAMIL NADU BY ITS CHIEF SECRETARY & ORS.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE[2018] 5 S.C.R. 829

OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY

STATE OF TAMIL NADU BY ITS CHIEF SECRETARY & ORS.

(Civil Appeal No. 2453 of 2007)

FEBRUARY 16, 2018

[DIPAK MISRA, CJI, AMITAVA ROY ANDA.M. KHANWILKAR, JJ.]

Inter-State Water Disputes:

Water dispute raised by State of Tamil Nadu – Against Stateof Karnataka – Alleging that the executive action taken by State ofKarnataka in constructing Kabini, Hemavathi, Harangi, Swrnavathiand other projects has affected the interest of the State of TamilNadu in the waters of Cauvery, an inter-State river – Also allegedthat the executive action were in violation of agreements enteredinto between the erstwhile Madras Presidency and State of Mysorein the years 1892 and 1924 – Central Government referred thedispute to Cauvery Water Disputes Tribunal – Claims also raisedby State of Kerala to the waters of river Cauvery on account of theareas transferred to it from the State of Madras after StateReorganization Act, 1956 – Claim by Union Territory of Puducherryin the waters of Cauvery river since it was located within Cauverybasin and seven branches of Cauvery did flow through the saidregion – Tribunal held the agreements of 1892 and 1924 as validand determined the utilisable quantum of waters of the Cauvery tobe 740 thousand Million Cubic Feet (TMC) – The Tribunal allocatedthe waters of Cauvery, following the principle of equitableapportionment – It allocated 419 TMC to State of Tamil Nadu, 270TMC to State of Karnataka 30 TMC to State of Kerala and 7 TMCto Union Territory of Puducherry – In addition, the Tribunalreserved 10 TMC for environmental protection and 4 TMC forinevitable escapages into the sea – Aggrieved by allocation ofsharing of waters of Cauvery awarded by the Tribunal, appeals byway of SLP were filed by the States of Tamil Nadu, Karnataka andKerala – Held: Waters of an inter-State river passing throughcorridors of the riparian States constitute national asset and nosingle State can claim exclusive ownership of its water – Principle

Aof equitable apportionment internationally recognized by theHelsinki Rules, Compione Rules and Berlin Rules which have alsobeen incorporated in 1987 and 2002 National Water Policies, havebeen regarded to be the guiding factors for resolving disputes quaapportionment of waters of an inter-Sate river – The Tribunal wascorrect in its approach – Tribunal correctly determined the irrigatedBarea of Tamil Nadu – Allocation of water to Tamil Nadu for domesticand industrial purposes and allocation of water to Kerala andPuducherry also requires no interference – Reservation of 10 TMCfor environment protection and 4 TMC for inevitable escapagesinto sea also does not need any interference – However, theCadmission of facts and empirical data suggests that around 20 TMCof water is available in Tamil Nadu which has not been taken intoaccount by the Tribunal – Therefore, keeping in view the risksassociated with over-extraction of groundwater, 10 TMC of theavailable groundwater in Tamil Nadu to be taken into account forfinal determination of State of Tamil Nadu – Tribunal has alsoDdrastically reduced the share of Karnataka towards Domestic andIndustrial purpose – Therefore, 4.75 TMC is awarded to Karnatakafor this purpose – Thus, it would be appropriate to award to theState of Karnataka an additional 14.75 TMC (10 TMC on accountof availability of groundwater in the State of Tamil Nadu and 4.75Efor domestic and drinking purposes) – Inter-State Water DisputesAct, 1956 – ss. 3 and 5.

Inter-State Water Disputes:

Water Dispute – Between States of Tamil Nadu andKarnataka – Pertaining to waters of Inter-State river Cauvery –FComplainant State (State of Tamil Nadu) inter-alia alleged that theexecutive action of State of Karnataka (affecting the interest ofState of Tamil Nadu) was in violation of the agreements enteredinto, in the years 1892 and 1924 between the erstwhile State ofMysore and Madras Presidency, in respect of distribution of watersGof Cauvery river – State of Karnataka questioned the validity ofthe agreements on the ground of applicability of doctrine ofparamountcy; and on the ground of unconscionability of theagreements – On appeal, held: After coming into force of IndianIndependence Act, 1947, doctrine of paramountcy has no room forapplication – The agreements had neither any political arrangementH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

nor touched any facet of sovereignty of India, but they coveredareas of larger public interest – The agreements did not come to anend either after coming into force of 1947 Act or after coming intoforce of the Constitution – State of Mysore might not have bargainingpower in 1892 or 1924 but such power came alive after the 1947Act or coming into force of the Constitution – State of Karnatakadid not choose to denounce the same – Even after coming into forceof States Reorganization Act, 1956, newly formed States did notraise any dispute to controvert the agreements – Thus, the State ofKarnataka waived its right to question the legal tenability of theagreements – Therefore, the agreements are neither inoperative norcompletely extinct – However, 1924 agreement was not intended tobe of permanent character – It contemplated fixed term of 50years and its continuance after 50 years was dependent on certainaspects – Therefore, the 1924 agreement expired after 50 years i.e.in the year 1974 – Indian Independence Act, 1947 – s. 7 – StatesReorganization Act, 1956.

Inter-State Water Disputes:

Complaint by State of Tamil Nadu – Against State ofKarnataka – Regarding allocation of waters of inter-State riverCauvery – Adjudicability of the complaint – Held: When States makea request under Inter-State Water Disputes Act, 1956 foradjudication of disputes, interest of the inhabitants of the State isinvolved – Both the States are governed by parens patria principle –The matter deserved to be adjudicated on the bedrock of equalstatus of the States and doctrine of equitability – Inter-State WaterDisputes Act, 1956.

Inter-State Water Disputes Act, 1956:

s.6A – Interpretation of – Held: Central Government doesnot have discretion to frame scheme u/s. 6A – Framing of the Schemeis exclusively meant for implementation of the award or as the samegets modified by Supreme Court.

Constitution of India:

Arts. 143, 262 and 363 – Inter-State water dispute – Between Statesof Tamil Nadu and Karnataka – Non-maintainability of the disputeson the basis of agreements entered between erstwhile State of Mysoreand Madras presidency – Held: Bar under s. 363 is not applicable

832SUPREME COURT REPORTS

[2018] 5 S.C.R.

Ain the present case as the issues in the present case have noconnection with the concept of sovereignty and integrity of India.

Constitution of India:

Art. 136 – Jurisdiction under – To entertain the appeal againstCauvery Water Disputes Tribunal – In view of s. 6(2) of Inter-StateBWater Disputes Act, 1956 – Held: The legislative intendment of s.6(2) is not to create any embargo on the jurisdiction of SupremeCourt – The fiction has been created for limited purpose of givingbinding effect to the award passed by the Tribunal – Section 6cannot be interpreted in an absolute mechanical manner and theCwords “same force as an order of decision” cannot be treated as anorder or decree for the purpose of excluding jurisdiction of SupremeCourt – provision should not be interpreted to give differentcolour which has technical design rather than serving object ofthe legislation – Hence, s. 6(2) does not bar jurisdiction conferredon Supreme Court u/Art. 136 – Inter-State Water Disputes Act, 1956 –Ds.6(2) – Interpretation of Statutes.

Interpretation of Statutes:

Rules of interpretation – Purposive interpretation – provisionshould not be interpreted to given different colour which has aEtechnical design rather than serving object of the legislation.

Doctrines/Principles:

Doctrine of paramountcy – Applicability of – Discussed.

Principle of apportionment – Discussed.FPartly allowing the appeal filed by State of Karnataka anddisposing of the appeals filed by the States of Tamil Nadu andKerala, the Court

HELD: 1. Doctrine of Paramountcy and its extinction oncoming into force of the Indian Independence Act, 1947:G

1.1 It cannot be said that after coming into force of the1947 Act and thereafter the Constitution of India, the agreementsof 1892 and 1924 became inoperative and totally extinct. [Para84] [932-A]

1.2 After coming into force of the 1947 Act, the doctrine ofHparamountcy has no room for application, as the Government of

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

India became the full sovereign authority. The two agreementsof 1892 and 1924 had neither any political arrangement nortouched any facet of sovereignty of India. Per contra, theagreements cover the areas of larger public interest which donot have any political element and in this backdrop, theagreements are neither inoperative nor completely extinct. [Para404(i)] [1120-D]

H.H. Maharajadhiraja Madhav Rao Jivaji Rao ScindiaBahadur of Gwalior and others v. Union of India andanother (1971) 1 SCC 85 : [1971] 3 SCR 9 – relied on.

Dr. Babu Ram Saksena v. State [1950] SCR 573 : AIR1950 SC 155; Hemchand Devchand v. Azam SakarlalChhotamlal (1905) 33 IA 1 : (1906) ILR 33 Cal 219;State of Tamil Nadu v. State of Kerala and another(2014) 12 SCC 696 : [2014] 12 SCR 875; MullaperiyarEnvironmental Protection Forum v. Union of India andothers (2006) 3 SCC 643 : [2006] 2 SCR 740; VirendraSingh and others v. State of U.P. [1955] 1 SCR 415 :AIR 1954 SC 447 – referred to.

“Integration of Indian States” by Mr. V.P. Menon –referred to.

2. Unconscionability of the Agreements of 1892 and 1924 :

On keen scrutiny of the evidence on record, there is noproof that the State of Mysore, at the relevant time, had denouncedthe agreements. The agreements did not automatically come toan end either after coming into force of the 1947 Act or aftercoming into force of the Constitution because of the “StandstillAgreement” and further owing to the fact that there had been nodenouncement. The bargaining power may not have existed in1892 or 1924 but definitely, the said power to bargain or to choose,came alive after the 1947 Act and, undoubtedly, after theConstitution came into being. However, the State of Karnatakachose not to do so. Therefore, the agreements should not bedeclared as void because of unconscionability. [Para 119] [957-D, E-G]

New Bihar Biri Leaves Co. and others v. State of Biharand others (1981) 1 SCC 537 : [1981] 2 SCR 417;

834SUPREME COURT REPORTS

ACentral Inland Water Transport Corporation Limitedand another v. Brojo Nath Ganguly & Another (1986)3 SCC 156 : [1986] 2 SCR 278; O.P. Bhandari v.ITDC (1986) 4 SCC 337 : [1986] 3 SCR 923; DelhiTransport Corporation v. D.T.C. Mazdoor Congress andothers 1991 Supp. (1) SCC 600 : [1990] 1 Suppl. SCRB142; Balmer Lawrie & Company Limited and others v.Partha Sarathi Sen Roy and others (2J) (2013) 8 SCC345 : [2013] 4 SCR 1018; West Bengal State ElectricityBoard and others v. Desh Bandhu Ghosh and othersAIR 1985 SC 722 : [1985] 2 SCR 1014 – referred to.

CBlack’s Law Dictionary by Bryan Garner, Editor-Chief (10[th]Edition, Thomson Reuters); Rivers in InternationalLaw (1959) by F.J. Berber; L. Oppenheim InternationalLaw (8[th] Edition); Chitty on Contracts (25[th] Edition, Vol.I)– referred to.

D3. Status of Agreements after coming into force of StatesReorganisation Act, 1956:

Nothing has been brought on record to show that any disputewas raised after the Reorganisation Act, 1956 came into force,by the newly formed States to controvert the agreements of 1892Eand 1924. As the facts clearly depict, it continued. The State ofKarnataka had waived its right to question the legal tenability ofthe agreement. It remains fact that both the agreements withthe Regulations remained in force despite coming into effect ofthe Reorganisation Act, 1956. [Para 133] [968-F-H]FM/s. Dalmia Dadri Cement Co. Ltd. v. Commissioner ofIncome Tax AIR 1958 SC 816 : [1959] SCR 729; AmarChand Butail v. Union of India and others AIR 1964SC 1658; Firm Bansidhar Premsukhdas v. State ofRajasthan AIR 1967 SC 40 : [1966] Suppl. SCR 81;GState of Punjab & Ors. v. Balbir Singh & Ors. (1976) 3SCC 242 : [1976] 2 SCR 115; Ranjan Sinha v. AjayKumar Vishwakarma 2017 (7) SCLAE 234; State ofM.P. v. Bhopal Sugar Industries Ltd. [1964] 6 SCR 846;Sher Singh and others v. Financial Commissioner ofPlanning, Punjab and others (1987) 2 SCC 439 : [1987]H2 SCR 691 – referred to.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

4. Issue relating to expiry of the agreements:

scrutinized perusal of the 1924 Agreement reveals that

the said Agreement was never intended to be of permanentcharacter. On the contrary, it contemplated fixed term of 50years. Having perused the clause in entirety and considering thewords, namely, ‘reconsideration’, ‘mutually agreed upon’ and ‘beopen to’, it is clear that certain clauses in the Agreement had arestricted life span. Inasmuch as the relevant clauses which areopen to reconsideration are absolutely essential parts of thecontract and it is extremely difficult to place appropriateconstruction on the contract without them. The clauses in thecontract do not indicate permanency but, on the contrary, indicatefixed term. The continuance of contract, was further subjectiveconsideration and merely agreed upon and, therefore, to holdthat it continued solely because of the experience gathered wouldnot be appropriate and it would be contrary to the concept ofunderstanding the clauses in contract to give effect to itscontinuance. The continuance after 50 years was dependent oncertain aspects and, therefore, the agreement expired after 50years i.e. in the year, 1974. [Paras 404(v), 146 and 147] [1121-A;975-H; 976-A-D]

In Re: Presidential Reference (Cauvery Water DisputesTribunal) 1993 (Supp) (1) SCC 96 : [1991] 2 Suppl. SCR 497 – referred to.

5. Infraction of Article 363 of the Constitution of India andnon- maintainability of the dispute on the basis of agreements of1892 and 1924:

The issues in the present case have no connection,whatsoever, with the concepts of sovereignty and integrity of Indiaand, therefore, the bar under Article 363 of the Constitution ofIndia is not attracted. It is not correct to say that the twoagreements have to be looked into for the purpose of adjudicationof the water dispute by the Tribunal because of Article 262 of theConstitution. [Paras 404(ii) and 104] [948-C; 1120-E-F]

State of Tamil Nadu v. State of Kerala and another(2014) 12 SCC 696 : [2014] 12 SCR 875 – followed.

AH.H. Maharajadhiraja Madhav Rao Jivaji Rao ScindiaBahadur of Gwalior and others v. Union of India andanother (1971) 1 SCC 85 : [1971] 3 SCR 9 – relied on.

State of Seraikella v. Union of India and another [1951]SCR 474 : AIR 1951 SC 253 – distinguished.BState of Karnataka v. State of Tamil Nadu and others(2017) 3 SCC 362 : [2016] 8 SCR 499; In Re:Presidential Reference (Cauvery Water DisputesTribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl. SCR 497; Maharaja Shree Umaid Mills Ltd. v. UnionCof India [1963] Supp. 2 SCR 515 : AIR 1963 SC 953 –referred to.

6. Adjudicability of the Complaint:

6.1 It is not correct to say that the complaint deserves tobe dismissed in the absence of proven injury. The complaint doesDnot contain the words “prejudicially affected’ but the antecedentsof the complaint, the view of the Central Government whilereferring water dispute and the expression of opinion of this Courtin *Presidential Reference (Cauvery Water Disputes Tribunal) case.In the backdrop of the language of the Inter-State Water DisputesEAct, 1956 the expiration by the efflux of time and the role of thisCourt, the Court is not inclined to entertain such plea. Thematter (complaint) deserves to be adjudicated on merits. [Paras149 and 150] [977-F; 978-B-C, D]

*In Re: Presidential Reference (Cauvery Water DisputesTribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl.F SCR 497 – referred to.

6.2 On perusal of the Helsinki Rules, 1966, it is clearthat the said Rules have not accepted the Harmon doctrine. Ithas, on the contrary, laid emphasis on the need of equitableutilization of such international rivers. It is noticeable from ArticlesGIV and V of the Helsinki Rules that they recognize equitable useof water by each basin State, setting out the factors, not exhaustivethough, to be collectively taken into consideration for workingout the reasonable and equitable share of the riparian States. Theindicated factors, inter alia, include the geography of the basin,Hthe hydrology of the basin, the climate, past utilization of waters,

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

economic and social needs of each basin State, populationdependent on the waters of the basin in each basin State,availability of other resources and the degree to which the needsof basin State may be satisfied without causing substantial injuryto co-basin State. The emphasis clearly is that in determiningthe reasonable and equitable share, all relevant factors are to beconsidered together and conclusion is to be reached on thewhole. [Para 161] [985-G-H; 986-A-B]

State of Wyoming v. State of Colorado 259 US 419(1922); State of Nebraska v. State of Wyoming 325 US589 (1945); Kansas v. Colorado 206 US 46 (1906);Colorado v. Kansas 206 US 46 (1906); State of NewJersey v. State of New York 283 US 336 (1931); Stateof Connecticut v. Commonwealth of Massachusetts 282US 660 (1931); State of Colorado v. State of NewMexico 459 US 176 (1982) – referred to.

6.3 The definition of ‘water disputes’ in s. 2(c) of the Inter-State Water Disputes Act, 1956 and the provisions contained inSection 3 have to be given due significance. Section 3 protectsthe right of inhabitants of State. [Para 165] [987-E]

6.4When the States make request under the Inter-StateWater Disputes Act, 1956 for adjudication of the disputes, theinterest of the inhabitants of the State is involved. Both the Statesare governed by the parens patriae principle. The Tribunal in itsapproach primarily referred to Helsinki Rules, 1966. The Tribunalwas correct in its approach. For determining reasonable andequitable shares, relevant factors have to be considered together,in reaching conclusion. Keeping in view the various intricaciesinvolved in the present case and the duty ordained upon thisCourt by the Constitution of India, the matter deserved to beadjudicated on the bedrock of equal status of the States anddoctrine of equitability. Resultantly, it cannot be said that thecomplaint of the State of Tamil Nadu did not warrant anyadjudication. [Paras 165 and 404(vi)] [987-E-F; 1121-B-D]

7. Principles of apportionment to be followed:

7.1The waters of an inter-State river passing through thecorridors of the riparian States constitute national asset and

Acannot be said to be located in any one State. Being in state offlow, no State can claim exclusive ownership of such waters orassert prescriptive right so as to deprive the other States oftheir equitable share. It has been propounded therein that theright to flowing water is well-settled to be right incident toproperty in the land and is right publici juris of such character,Bthat while it is common and equal to all through whose land itruns and no one can obstruct or divert it, yet as one of the beneficialgifts of Nature, each beneficiary has right to just and reasonableuse of it. [Para 363] [1092-A-C]

7.2To conceive that equality rests on equal sharing ofCwater within an arithmetical formula, would be fundamentallyviolative of the established conception of equitable apportionmentbecause the said concept inheres multiple factors. It is theobligation of the Tribunal to address the same and the duty ofthis Court is to adjudge within the permissible parameters of the

Djustification of the said adjudication. The dissension has to beaddressed in the backdrop of equal Status of the States and thedoctrine of equitability. [Para 364] [1092-H; 1093-A-B]

7.3The principles laid down in Helsinki Rules can beregarded as functional dynamics while equitably distributing theEwater in an inter-State river disputes. The salient feature of allthese factors has to have inherent variability and inevitableflexibility thereof having regard to the local conditions, for it isdifficult to ignore the undeniable and common emphasis necessaryto ensure beneficial use of the available resources for basinState and logically for its dependent populace warranted by theFeconomic and social needs. While determining the said needs,amongst others, past and existing utilization of the water have tobe borne in mind. To remain oblivious to the same would amountto playing possum with the doctrine of equitable distribution inpraesenti. The noticeable quintessence of the determinants isGthe predication for delicate balance in adjustments of the needsbased on realistic, reasonable, judicious and equitable canons somuch so that while satisfying the requirements of basin State, aco-basin State is not subjected to any substantial injury. Thoughin terms of Articles VI and VII of Helsinki Rules, any othercategory of users is not entitled to any inherent preference overH

any other use or category of users, yet the precedence of anexisting reasonable use of basin State over proposed futureuse of co-basin State has been recognized. Significantly, in termsof Article VIII, an existing reasonable use may continue inoperation, unless the factors justifying its continuance areoutweighed by other factors leading to the conclusion that it bemodified or terminated so as to accommodate competingincompatible use clearly signifying that an existing use is alsonot absolute in terms and is subject to exigency basedadjustments. [Para 367] [1094-H; 1095-A-E]

7.4Substantially on the same lines is the CampioneConsolidation of ILA Rules on International Water Resources1966-1999. The distinguishing attribute of these Rules is theinclusion of water of an aquifer, i.e., underground water or “fossilwaters” intercepted by the boundary between the two or moreStates as international ground-water so much so that it wouldform an international basin or part thereof qua the relevant factorsto determine reasonable equitable share. These Rules includethe criterion of interdependence of underground waters and otherwaters, including any interconnections between aquifers and anyleaching into aquifers caused by activities in areas under thejurisdiction of the basin states. [Para 368] [1095-E-G]

7.5Another set of rules on international drainage basin iscalled the Berlin Rules adopted by the International LawAssociation in its Berlin Conference in the year 2004. On theaspect of equitable utilization, Article 12 thereof provides thatbasin States, would in their respective territories manage thewaters of an international drainage basin in an equitable andreasonable manner, having due regard for the obligation not tocause significant harm to other basin States and in particular, thebasin States, would develop and use the waters of the basin inorder to attain optimal and sustainable use thereof. The interestof the other basin States are to be kept in view. Article 13 of theRules catalogues as well the relevant factors to determine theequitable and reasonable use of basin State. While reiteratingin essence the Rules as prescribed by the Helsinki Rules, theadditional aspect to be considered is minimization ofenvironmental harm. Article 14 of these Rules stipulates that in

Adetermining an equitable and reasonable use, the States shallfirst allocate waters to satisfy vital human needs and that no otheruse or category of uses shall have an inherent preference overany other use or category of uses. Article 17 postulates that everyindividual has right of access to sufficient, safe, acceptable,physically accessible and affordable water to meet his vital humanBneeds and it is the obligation of the States to ensure theimplementation of right of access to water on non-discriminatorybasis. [Paras 369 and 370] [1095-G-H; 1096-A-D]

7.6The common thread decipherable from these Rules isthe universal acknowledgment of the principle of equitableCutilization as an effective and workable tool for the managementof waters of an international drainage basin. [Para 371] [1096-D-E]

7.7The National Water Policy of 1987 sounded thresholdcaveat that water is prime natural resource, basic human needDand precious national asset. While emphasizing that this resourceis one of the most crucial elements in development planning, thepolicy announced that it is scarce and precious national asset tobe planned, developed and conserved on an integratedenvironmentally sound basis, keeping in view the needs of theEStates concerned. It underlined that resource planning in thecase of water has to be done for hydrological unit such asdrainage basin as whole or for sub-basin and that all individualdevelopmental projects and proposals should be formulated bythe States and considered within the framework of such an overallplan for basin or sub-basin so that the best possible combinationFof options can be made. As is manifest from the policy, it enjoinedthat water should be made available to water deficient areas bytransfer from other areas including transfers from one river basinto another based on national perspectives after taking intoaccount the requirements of the areas/basins. That apart, makingGprovision for drinking water should be primary considerationwhich was also highlighted. As regards the ground-waterresources, it was marked that exploitation thereof should be soregulated as not to exceed the recharging possibilities as also toensure social equity and to prevent ingress of sea water into sweetwater aquifers. In the realm of planning and operation of systems,H

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

water allocation priorities were broadly outlined as (a) drinkingwater, (b) irrigation, (c) hydropower, (d) navigation and (e)industrial and other uses. [Paras 372 and 373] [1096-F-H; 1097-A-C]

7.8The 1987 policy laid stress that in view of vitalimportance of water for human and animal life, for maintainingecological balance and for economic and developmental activitiesof all kinds and considering its increasing scarcity, the planningand management of this resource and its optimal, economical andequitable use has become matter of utmost urgency. Itemphasized that the success of the National Water Policy woulddepend entirely on the development and maintenance of nationalconsensus and commitments to its underlying principles andobjectives. Significantly, the Policy, which is national charterfor Planning and Development of Water Resources for itsdisciplined and judicious utilization recognizes and accepts it tobe scarce and valuable bounty of nature to be developed,conserved and put to planned use on an environmentally soundbasis with due regard to the needs of the State concerned. ThePolicy, thus, sustains the concept of basin State as contemplatedin the Helsinki Rules, Campione Rules and Berlin Rules. [Para374] [1097-D-F]7.9The National Water Policy of 2002 which is revisedand updated form of the earlier model, reiterates the emphasison the need for planning, development and management of thewater resources from the national stand point. Pertaining to waterallocation priorities, this Policy added to the list, in particular,ecology and agro industries and non-agricultural industries,qualifying that the priorities as enumerated could be modified oradded if warranted by the specific considerations of the areas/regions. The primacy of drinking water was reiterated. On theaspect of ground water development, it was stated that periodicalre-assessment of the ground water potential on the scientific basisshould be made taking into consideration the quality of wateravailable and the economic viability of its extraction. Same cautionagainst over-exploitation of ground water was sounded. It was,inter alia, mandated that adequate safe drinking water facilityshould be provided to the entire population, both in urban and in

842SUPREME COURT REPORTS

Arural areas, and irrigation and multipurpose projects shouldinvariably include in it drinking water component wherever thereis no alternative source of drinking water. It was clarified thatdrinking water needs of human beings and animals should be thefirst charge on any available water. Qua irrigation, the Policystated that planning either in an individual project or in basin asBa whole should take into account the irrigability of land, costeffective irrigation options possible from all available sources ofwater and appropriate irrigation techniques for optimising wateruse efficiency. The aspect that the irrigation intensity should besuch as to extend the benefits of irrigation to large number ofCfarm families as much as possible, keeping in view the need tomaximize production, was also underlined. It was most importantlyprovided that water sharing/distribution amongst the States shouldbe guided by national perspective with due regard to theavailability of water resources and the needs within the river

basin. The Policy, therefore, did not bar as such the sharing orDallocation of water in areas within the basin State. In conclusion,the Policy recorded that its success would depend entirely onevolving and maintaining national consensus and commitment toits underlying principles and objectives. It also laid emphasis onthe needs of the community that requires to be taken into accountEfor the development and management of water resources. [Para376] [1098-A-G]

7.10 The national policies of the country therefore,evidently supplement and consolidate the prescriptions of theHelsinki Rules, Campione Rules and Berlin Rules in the matterFof ascertainment of reasonable and equitable share of water in aninter-state river. [Para 377] [1098-H]

7.11 The Helsinki Rules and the other Rules envisage abasin State on the issue of equitable apportionment of an inter-State river. Though the Rules predicate that in determining theGshare of one basin State, the other co-basin States would not besubjected to substantial injury, yet the clear emphasis is to fulfillthe economic and social needs of the population of the State andin the sphere of irrigation, its farmer community. Indubitably, theprinciple of apportionment would apply uniformly to all river basinsin State. The sharing of an inter-State river, as the professedH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

norms of distribution suggest, has to be with the spirit ofharmonious disposition and equanimous dispensation. The normsor the factors suggested can never be exhaustive and designedonly balanced framework of pragmatic measures to ensurebeneficial use of water resources in an inter-State river on need-based application thereof and reciprocal adjustments for commongood. In the regime of welfare State wedded to the guaranteesenshrined in the National Charter, any yardstick for distributionof any national asset like water would have to be essentially infurtherance thereof. The criteria identified in the Rules andsupplemented by the national policies in letter and spirit, thoughin quite detail, can only be construed as illustrative and cannotbe perceived as strait-jacket formula or put in compartmentof mathematical exactitude to exclude any other considerationor exigency to effect desirable apportionment of water of aninter-State river depending on the prevalent eventualities. Havingregard to the geographic, hydrographic, hydrological,hydrogeological, climatic, ecological and other fluvial phenomenaattendant on time, the spectrum of priorities and the factorsassociated therewith are bound to vary. [Para 377] [1099-A-E]

7.12 While no precise formula can be adopted, there has tobe sincere and pragmatic endeavour to have rational amalgamof globally accepted norms and the local necessities founded onthe doctrine of fairness and equity. The factors alreadyenumerated, may inter se demand precedence of one over theother depending on the ground realities, the ultimate test beingto ensure that the allocations on the basis thereof in favour ofone basin State ought not to be substantially detrimental to theco-basin States. The order of precedence in the areas of necessity,as set out in the National Policy, is not incompatible with theacknowledged determinants for ascertaining the reasonable andequitable share of an inter-State river. Nevertheless, the weightageof one item of need would depend in given situation on thedegree and priority thereof thereby necessitating grant ofpreference of one over the other in departure of the sequenceset out in the policy. This again is to underline the attribute ofvariability in the approach of application of the otherwise identifiedcriteria, the ultimate goal being equitable apportionment of theresources. This concept gains more significance where the

Aresource is scarce and inadequate qua the demand thereof. It iswarrantable as the dispute involves the inhabitants of one Statewith the inhabitants of another State. Such involvement by statutorycommand engulfs the principle of obtaining situational adjustmenthaving due regard to priority. [Para 377] [1099-F-H; 1100-A-B]

B7.13 The factors as set out in the Helsinki Rules andendorsed as well as supplemented by the Campione Rules andthe Berlin Rules and further consolidated by our national policiesas above are efficient, rational, objective and pragmatic guidelinesto conduct any exercise for determining the reasonable andequitable share of basin States in the water of an inter-state riverClike Cauvery as in the present case. With these guidelines atdisposal, the endeavour has to be essentially to ensure anappropriate balance of the genuine competing demands andinterests of the basin States. The balancing has to be done in apragmatic and feasible manner so that it will be ultimatelyDfunctional and meet the aspirations of the riparian States. In sucha working process, there has to be adjustment of the availableresources. That apart, the process indeed has to be informedwith egalitarian vision for achieving utilitarian ends keeping inview the inclusive spirit and the pluralistic ethos. Thus viewedand understood, periodical reviews to update the allocationsEmerited by changes in the aforementioned natural andenvironmental phenomena bearing on the resources for supplyand resultant reorientation of the inter se needs of the basin States,would have to be unfailingly undertaken on time. [Paras 377 and378] [1100-C-F]FIn Re: Presidential Reference (Cauvery Water DisputesTribunal) 1993 (Supp) (1) SCC 96 : [1991] 2 Suppl.

SCR 497 – referred to.

8. Determination of ‘irrigated areas” in Tamil Nadu andKarnataka:G

8.1 The Tribunal, after adopting the principle of equitableapportionment, in the process of computing the reasonable andequitable shares of the basin States as the first initiative,determined the irrigated areas of the States and in doing so, notedfrom the report of the Cauvery Fact Finding Committee submittedHin the year 1972 that the utilization of waters of Tamil Nadu

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

including Karaikal region of the Union Territory of Puducherry,Mysore and Kerala had been 566.60 TMC, 176.82 TMC and 5TMC respectively. In view of the fact that river Cauvery is deficitin its water content compared to the demands of the riparianStates involved, restrictions and savings in the matter of usethereof are not only necessary but also natural corollaries. Inthat view of the matter, it is incumbent to identify the areas underirrigation with the expansion thereof with time, together with thecrop pattern and the suitability thereof, having regard to theextent of utilization of the deficient surface flow available. Onthe basis of the reports of the various Committees and therecorded data, the bearing of the 1924 Agreement in particularover the march of events cannot also be totally disregarded. [Para380] [1101-C-E, G-H; 1102-A]

In Re: Presidential Reference (Cauvery Water DisputesTribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl. SCR 497 – referred to.

8.2The Tribunal, after taking into account all the factors,vis-a-vis Tamil Nadu, applied the restrictions to work out theirrigated area to which it would be entitled to assert its share ofallocation, namely, no area for summer paddy; area of summerpaddy raised prior to 1924 to be replaced by semi-dry crop; annualintensity of irrigation to be restricted to 100%; cropping periodto be restricted within the irrigated season, i.e., 31[st] June to 31[st]January and ambitious lift irrigation schemes to be discouraged.It, thus, quantified such area for Tamil Nadu to be 24.71 lakhacres against its claim of 29.26 lakh acres. As far as Karnataka isconcerned, the Tribunal noticed that in the pre 1924 Agreementera, irrigation in the then State of Mysore was primarily fromdirect diversion channels from the rivers together with the systemof tank irrigation and that in the absence of any reservoir, thewaters of Cauvery and its tributaries like Kabini, Hemawathi,Harangi and Suvaranwathi used to flow through the State but theirultimate destination was the Delta State of the then State of Madrasas result whereof, even as admitted by the State of Tamil Nadu,Karnataka could develop only 3.14 lakh acres of land by 1924.This inability of the State of Karnataka to develop its land forirrigation in the background of its persistent cavil of beingdeprived of its legitimate share and use of the water of Cauvery

Acannot be ignored. It is recorded fact that though under the1924 Agreement, Karnataka in terms of the relevant provisionsthereof ought to have developed 7.45 lakh acres by 1974, it couldachieve only 2.15 lakh acres. However, the Tribunal in all allowed18.85 lakh acres of area to Karnataka being under irrigation priorto 1974 against its claim of 20.98 lakh acres. In case of KarnatakaBas well, the Tribunal excluded the development of second cropin view of the scarcity of water in the basin with due regard to therainfall pattern and even suggested restrictions on the crop varietyand the duration thereof. On an overall consideration of therelevant materials and having regard to the imperative of economyCof consumption of water, the approach of the Tribunal cannot befound fault with having regard to the existing situation. [Para 380][1102-A-G]

9. Allocation of water for “irrigation needs” in Tamil Naduand Karnataka:

D9.1The Tribunal, on the basis of the overall materialsbefore it, took note, amongst others, of the crop pattern, durationof the crops, consumption of water thereby, soil conditionsconducive thereto, rainfall pattern, Delta and system efficiencyalong with the drought conditions of Karnataka as projected byEit, in conjunction with the testimony of the expert witnesses ofboth the States of Tamil Nadu and Karnataka, and in the interestof economical use of the water of the deficit basin, allocated 250.62TMC to Karnataka for its irrigated area of 18.85 lakh acres and390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakhacres. Further, the Tribunal has considered the crop waterFrequirement, namely, crop duration, ET crop, puddlingrequirements, percolation losses, effective rainfall and system

efficiency. [Para 382] [1104-A-C]

9.2Keeping in view the accepted principles, neither theanalysis undertaken by the Tribunal nor the findings relatableGthereto can be regarded as implausible by any standard. Certainparameters have been exhaustively examined by the Tribunal onthe basis of the materials brought on record with supportingreasons and, therefore, the conclusion as regards assessment ofwater for irrigation needs cannot be termed as untenable,Hwarranting interference in the exercise of this Court’s jurisdiction

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

under Article 136 of the Constitution of India. [Para 382] [1104-C-E]

9.3The assessment by the Tribunal, encapsules the factualand characteristically complex situation. Lands have already beenirrigated. It is an issue of sustenance at the ground reality level.To reduce the allocation of water on this score would beinequitable. Therefore, in the obtaining fact situation, nointerference is warranted. That apart, having regard to the degreeof wiredrawn complexities involved, requiring in-depth expertiseto dislodge the otherwise well-reasoned findings of the Tribunalfounded on an exhaustive appreciation of the materials on record,the determination made by it in this regard cannot be upset. [Para383] [1105-B-C]

10. Water allocation for the State of Kerala:

In respect of the claim of Kerala, it is matter of recordthat rainfall is evenly distributed over the months of May toNovember so much so that occasional support by artificialirrigation is required in the instances of shortfall in rains and thattoo during small periods. Against its demand of 99.8 TMC underdifferent heads, it had demanded 35 TMC for transbasin diversionto generate hydro-electrical power. The Tribunal rejected theState’s request for transbasin diversion for hydro-power projectswhich, in terms of the National Water Policy of 2002, was evenotherwise lower in preference to drinking water and irrigation.The Tribunal in adjudging the State’s share did notice that it hadbeen unsuccessful in furthering its projects so much so thatpending the completion and utilization thereof, the unutilizedwater allocated to it subject to the mechanism set up by theCauvery Management Board/Regulatory Authority, would bereceived by Tamil Nadu. The Tribunal examined the informationfurnished by it in the common format and adjudged 29.76 TMCwhich was rounded upto 30 TMC as its share after due regard toits demand, amongst others, pertaining to different projects inKabani, Bhavani, and Pambar basins having regard to theirindividual features and corresponding crop water requirement.This allocation included the share for domestic and industrialwater purposes as well with the population projection for 2011.The findings of the Tribunal are not belied by the materials in

FGH

Asupport thereof and, therefore, the same is accepted by this Court.[Para 384] [1105-E-H; 1106-A]

Tamil Nadu Cauvery Neerppasana VilaiporulgalVivasayigal Nala Urimai Padhugappu Sangam v. Unionof India and others (1990) 3 SCC 440 : [1990] 3 SCR B83 – referred to.

11. Water allocation for the Union Territory of Puducherry:

With regard to the claim of Union Territory of Puducherryfor Karaikal region, it is matter of record that because of itsclose proximity to the sea, the ground water by its nature isCunsuitable for drinking and irrigation purposes and, thus, theTribunal having regard to its irrigated area of 43000 acres allowedits second crop in departure from the yardstick applied forKarnataka and Tamil Nadu and granted 6.35 TMC by way of cropwater requirement. It also relieved the Union Territory of theDapplication of 20% consumptive utility formula while assessingits domestic and industrial water requirements. In the absenceof any convincing reason to determine otherwise, the adjudicationof the Tribunal on this count does not deserve any interference.[Para 385] [1106-B-D]

E12. Recognition of ground water as an additional source inTamil Nadu:

12.1 While exploring the possibility of ground water as anadditional source to be conjunctively used along with the surfaceflow of river Cauvery, the factual matrix reveals, based onempirical data, that the contributions thereto are from surfaceFwater through infiltration into the ground by way of naturalrecharge, stream flow, lakes and reservoirs. The recharge ofground water is principally from rainfall as well as artificial modes,namely, application of water to irrigate crops, flooding of areascaused by overflowing of streams to their sites and seepage fromGunlined canals, tanks and other sources. Ground water, as thestudy by the Central Ground Water Board, Ministry of WaterResources, Government of India attests, caters to more than 45%of irrigation in the country. As against the stand of Tamil Naduthat the ground water within its Delta areas is mainly by way ofrecharge from the supplies of Mettur Dam which really is aH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

component of the surface flow of river Cauvery and further thatthe same is utilized by the farmers for raising of early nurseriesahead of releases from Mettur and for irrigating belated cropsafter stoppage of Mettur releases, exhaustive studies undertaken,amongst others, by the Central Ground Water Board, Ministryof Water Resources, Government of India, Irrigation Commission,1972 and United Nations Development Programme evidencedavailability of replenishable ground water in Tamil Nadu. [Para386] [1106-D-H; 1107-A]

12.2 The United Nations Development Programme in itsreport, amongst others, mentioned that yearly quantity of groundwater that can be extracted by using centrifugal pumps in theCauvery sub-basin, Vennar sub-basin and in the new Delta was33.7 TMC, 5.4 TMC and 32.5 TMC respectively and in addition56.5 TMC of ground water per year can also be made available inthe Cauvery sub-basin by lowering seasonally ground water levelto 10 meters depth below the regional ground water level. Otherstudies made by the team of the Central Ground Water Boardindicated ground water potential in the Delta area of Tamil Naduto the extent of 64 TMC. The report of Mr. W. Berber, Consultant,World Bank on Ground Water Resources of Cauvery Deltaestimated the available ground water in Cauvery Delta at 51.56TMC. Tamil Nadu, in its pleadings, admitted that the total groundwater extraction during the year 1989 was approximately 28.4TMC in the Cauvery sub-basin, 7.3 TMC in the Vennar sub-basinand 11.3 TMC in the Grand Anicut Canal area (new Delta area)totaling 47 TMC. Tamil Nadu, in its pleadings, also mentionedthat in the old Delta, there was scope of conjunctive use ofground water to the extent of 30 TMC. [Para 386] [1107-A-D]

12.3 On the basis of these recorded and empirical inputs,the Tribunal returned finding that in normal year when therewould be regular releases of water from Mettur, the bulk ofcontribution to ground water in the Cauvery sub-basin would befrom such releases, but in any case, the contribution from surfaceirrigation and rainfall could by no means be overlooked. Onweighing the pros and cons and having regard to the severelimitations in the mechanism for assessment of ground waterresource, the Tribunal made an extremely safe estimate of 20

[2018] 5 S.C.R.

ATMC of ground water which, in its view, could be used by TamilNadu conjunctively with surface water. In categorical terms, theTribunal clarified that this quantum was arrived at after excludingthe component of ground water recharge from river water bilateralinfiltration. [Para 386] [1107-E-F]

B12.4 The assertion made on behalf of Karnataka thatground water being renewable resource, if not extractedregularly, would reduce the absorption capacity of the underlyingaquifer resulting in rain water/surface water turning into wastageas run-off and that the admission of Tamil Nadu in its pleadings ofavailability of 30/47 TMC as ground water warranted reductionCof at least 20 TMC, as estimated by the Tribunal, from the finalallocated share of Tamil Nadu with proportionate reduction inthe quantum of water to be provided by Karnataka at the inter-state border, assumes significance. Having regard to theoverwhelming empirical data following multiple research studies

Dby different authorities authenticating beyond doubt availabilityof replenishable ground water in the Delta areas of Tamil Nadu,20 TMC of ground water quantified by the Tribunal is an eminentlysafe quantity to be accounted for in finally allocating/apportioningthe share of Cauvery water. Though over-extraction of groundwater in the absence of adequate replenishment and further inEthe areas proximate to the coastal zone is generally avoidable.However, in the attendant facts and circumstances, in view of thestudied scrutiny of all pertinent facets of the issue by balancingall factors, at least 10 TMC of ground water available in theDelta areas of Tamil Nadu can be accounted for in finallyFdetermining the apportionment of the share of the otherwisedeficit Cauvery basin without touching the yield of 740 TMC.[Para 386] [1107-H; 1108-A-D]

12.5 The national policies, do not, as such, debar theconjunctive use of ground water, the only caveat being periodicalGassessment on scientific basis thereof and to guard againstexploitation of the said resource so as not to exceed therecharging possibilities. [Para 387] [1108-E-F]

12.6 The series of research studies made by differentauthorities and the range of availability of ground water asHindicated by the experimental data, not only demonstrate

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

availability of ground water in the Deltas in the State of TamilNadu but also that adjustment of 10 TMC thereof, as proposed,would be safely permissible. Noticeably, the kind of experimentand research that had been made in the realm of ground wateravailability in the Deltas of Tamil Nadu has not been undertakenin Karnataka and there is no reliable empirical data with regardthereto vis-a-vis that State. [Para 387] [1108-F-G]

13. Water allocation for Domestic and Industrial purposesin Tamil Nadu:

With regard to the computation and allotment of water fordomestic and industrial purposes in Tamil Nadu and Karnataka,the Court is in agreement with the formulae noted and applied bythe Tribunal in working out the per capita daily requirements ofthe urban and rural population. There is also no reason to differfrom the postulation with regard to the percentage of actualutilization qua various heads of uses, namely, irrigation, power,domestic and municipal water supply, industrial use, etc., asreferred to in the Report of the Cauvery Fact Finding Committeewhich, indicate that whereas 20% of the quantity of water suppliedwould be actually consumed in domestic use, only 2.5% wouldbe effectively utilized for industrial use within the basin and therest would return to the source, i.e., river or its tributaries or thereservoir, storage and canal, as the case may be. [Para 388] [1108-G-H; 1109-A-C]

14. Water allocation for Domestic and Industrial purposesof State of Karnataka:

14.1 In its statement of case, Karnataka had registered itsclaim for water for domestic and industrial uses as : Bangalorewater supply – 30 TMC; Urban water supply (other thanBangalore) – 10 TMC; Rural water supply – 6 TMC; Industrialuses – 4 TMC. This along with its claim for irrigation - 408 TMCand for power projects (reservoir losses 6 TMC and ThermalPower Project - 1 TMC) – totals to 465 TMC. Karnataka,therefore, registered claim of 30 TMC only for the city ofBengaluru. [Para 389] [1109-C, D-F]

14.2 The Tribunal, at the first instance, presumed that 50%of drinking water requirement would be met from the ground

Awater sources as it is generally seen that wells and tube-wells inurban and rural areas cater to substantial requirement of drinkingwater. While noting that it had called for information in thecommon format whereby the States had been required to projecttheir population for the year 2000 and 2025 for working outdrinking water requirement, the Tribunal, however, decided toBassess the drinking water requirement as in the year 2011. Onthe basis of the information available, it held that only 1/3[rd] of theBengaluru city lay within the Cauvery basin. It, therefore, limitedits consideration of drinking water requirement of Bengaluru tothat area only which was located within the Cauvery basin. ItCnoticed that Karnataka had stated that the existing and ongoingdrinking water schemes for the city were for 14.52 TMC in all asin June 1990 and also that it had claimed 30 TMC for Bengalurucity in its projection for 2025. The Tribunal, was disposed to workout the water requirement for urban and rural population on thebasis of population projection of the basin for the year 2011 byDadopting the percentage decennial growth for the year 1981-1991census, district-wise and the area of each district falling withinthe Cauvery basin as furnished by Karnataka. The populationprojection of Bengaluru city on the Census Report of 2011, asfurnished by Tamil Nadu, was taken note of as well. The TribunalEnext quantified the water requirement of urban population to be8.70 TMC and for rural population at 8.52 TMC. The Tribunal,as consequence, proceeded to quantify the total drinking waterrequirement for urban and rural population to be 17.22 TMC(8.70 TMC + 8.52 TMC). It next assumed that 50% of thedrinking water requirement would be met from ground water andFthe remaining 50% from the surface water. Thus, segregating8.75 TMC to be catered to by the surface water, it worked outthe consumptive use, i.e., 20% of the total for the humanpopulation including live stock to be 1.75 TMC (20% of 8.75TMC). [Para 389] [1109-F-H; 1110-A-E]G

14.3 Apart from the fact that there is no basis whatsoeverfor the Tribunal for having quantified the water requirement forurban population to be 8.70 TMC as well as for rural populationto be 8.52 TMC, its assumption that 50% thereof would be metfrom ground water only in view of its perception that wells andHtube-wells in urban and rural areas cater to the substantial

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

requirement of drinking water, is unacceptable and cannot besustained. That apart, in the context of Bengaluru city, especiallyin view of the growth and rise of population in space and time,the Tribunal’s approach of confining the entitlement of itspopulation in general to only 1/3[rd] of their requirement only inview of the location of 1/3[rd] of its physical entity within the Cauverybasin demands scrutiny. True it is, the concept of basin and thebeneficial uses of the water thereof ought to be traced generallyto the sites and population thereof located in the basin,nevertheless, the principles of apportionment and the conceptionof reasonable and equitable share perceived for such usescomprehend basin State addressing the social and economicneeds of its community as whole. Territorial or geographicaldemarcation for extension of beneficial uses of an inter-state riverbasin cannot always be strictly construed. The perception of abasin State inheres in it degree of flexibility in approach in aunique fact situation to justify warrantable flexibility anddeparture from such rigoristic approach. The requirements of itsdependent population as whole for drinking and other domesticpurposes, therefore, cannot justifiably, in the prevailingcircumstances, be truncated to their prejudice only forconsideration of its physical location in the context of the riverbasin. It will be inconceivable to have an artificial boundary anddeny the population the primary need of drinking water. TheCourt holds so in the special features of the case keeping in viewthe global status the city has attained and further appreciatingthe doctrine of equitable proportionality on the bedrock ofpressing human needs. [Para 390] [1110-E-H; 1111-A-B, D, E-F]

14.4 As per the national water policies, not only drinkingwater has been placed at the top of the other requirements in theorder of priority, but it has also been predicated that adequatedrinking water facilitates should be provided to the entirepopulation, both in urban and rural areas and that drinking watershould be made primary consideration. It was declared as wellthat drinking water needs of human beings and animals shouldbe the first charge on any available water. Article 14 of the BerlinRules also mandates that in determining an equitable andreasonable use, the States shall first allocate water to satisfy vitalhuman needs. [Para 391] [1111-F-H]

A14.5 The approach of the Tribunal cannot be approved inthe facts and circumstances. The allocation of water for drinkingand domestic purposes for the entire city of Bengaluru has to beaccounted for. Karnataka had claimed 14.52 TMC, i.e., 6.52 TMCfor existing water schemes for Bengaluru and 8.00 TMC for theongoing drinking water schemes for the city as in June, 1990. ItBhad demanded 30 TMC as drinking water requirement for thecity with the projection of 2025. Having regard to the percentageof decennial growth, as has been adopted by the Tribunal, in 2011,the demand of Karnataka for drinking water requirement forBengaluru city would be in the vicinity of 24 TMC. Even excludingCthe computation for urban population of the State to be 8.70 TMCas arrived at by the Tribunal and that too without any basis andaccepting the water requirement of rural population to be 8.52TMC though also without any basis, the total figure representingdrinking and domestic water requirement of the urban and ruralpopulation would be 32.5 TMC rounded upto 33 TMC inDcomparison to 46 TMC as claimed by Karnataka in its statement.Having rejected the assumption that 50% of the drinking waterrequirement would be met from ground water, this 33 TMC would,be safe and acceptable figure qua drinking and domestic waterrequirement of the State of Karnataka for its urban and ruralEpopulation. By applying the consumptive percentage of 20%, thevolume of water to be allocated to Karnataka on this count wouldbe 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., anincrease by 4.75 TMC. [Para 392] [1112-A-E]

14.6 Qua the view against transbasin diversion, not only in

Fthe context of Bengaluru city, digression from the confines ofthe concept of in-river basin would be justified, since the NationalWater Policy of 1987, in categorical terms, enjoined that watershould be made available to water short areas by transfer fromother areas including transfers from one river basin to another.

This very conspicuously emphasizes on an inclusiveGcomprehension and in deserving case like Bengaluru city, itwould not be incompatible with the letter and spirit of the factorsthat ought to inform the determination of reasonable and equitableshare of water in an inter-state river as well as of the nationalpolicies formulated for planning and development of the preciousHnatural resource involved. [Para 393] [1112-F-H]

15. Allocation of water towards environmental protection:

On the aspect of allocation qua environmental protection,the Tribunal, in order to secure the purity of environmental andecological regime in view of the injudicious use of availableresources by human beings compounded by population explosionand distorted lifestyles and having regard to the spectre of riverwater pollution on account of industrial development anddeforestation leading to siltation of reservoirs, etc., assigned 10TMC to be reserved from the common pool to meet theenvironmental aspects. The endeavour and the initiative of theTribunal is appreciable, having regard to the sustenance of purityof environment to which every individual is entitled and alsosimultaneously obliged to contribute to cultivate the feeling ofenvironmental morality. Therefore, the Court is not inclined tointerfere in any manner in the allocation of the quantum of 10TMC towards environmental protection. [Paras 394 and 395][1113-A-D]

16. Revised allocation amongst competing States:

16.1 With the evolution of the principle of equitableapportionment which is really to ensure equal justice to the basinStates, the concept of prescriptive right or right to the naturalflow of any inter-state river has ceased to exist. Having regardto the historical facts which demonstrate the constraints sufferedby Karnataka resulting in its limited access and use of the surfaceflow of Cauvery in spite of being the upper riparian State,compared to Tamil Nadu, then Madras presidency, as well asseverally drought conditions in its 28 districts/taluks, the Courtis inclined to award an additional quantity of water to it in themeasure of 14.75 TMC in all, i.e., 10 TMC (on account ofavailability of ground water in Tamil Nadu) + 4.75 TMC (fordrinking and domestic purposes including such need for the wholecity of Bengaluru). On these considerations, Karnataka is moredeserving amongst the competing States to be entitled thereto.Out of this, 14.75 TMC would be deducted from the quantumallocated by the Tribunal in favour of Tamil Nadu. Thus, the finalallocation of the shares in view of this determination would be asunder:-

AKarnataka: 284.75 (270 + 14.75) TMCTamil Nadu: 404.25 (419 – 14.75) TMCKerala: 30 TMCUT of Pondicherry: 7 TMCEnvironmental Protection: 10 TMCBInevitable escapagaes into sea: 4 TMCTotal: 740 TMC[Para 396] [1113-E-H; 1114-A-B]

16.2 As consequence of the aforesaid allocation, the StateCof Karnataka would now be required to make available at theinter-State border with Tamil Nadu, i.e., at Billigundulu, 177.25TMC of water for the basin. Apart from the modifications effectedhereinabove, no interference with the determination and findingsrecorded by the Tribunal, in view of the scrutiny of the availablematerials on record, is called for. [Para 397] [1114-C-D]

16.3 The Tribunal directed appointment of RegulatoryAuthority to properly monitor the working of monthly schedulewith the help of the concerned States and Central WaterCommission and further directed that the upper riparian Stateshall not take any action so as to affect the scheduled deliveriesEof water to the lower riparian States. [Para 399] [1115-A-B]

16.4 In view of the reduction in the quantum of water, nowrequired to be released by Karnataka at the inter-State borderwith Tamil Nadu, i.e., at Billigundulu, there would be, logically, aproportionate decrease in the monthly releases as worked outFby the Tribunal. However, the same pattern therefor, as modeledby it would be maintained for the reduced releases. [Para 400][1116-B]

17. Interpretation of s. 6A of inter-State water disputesAct, 1956:G

17.1 The award of the Tribunal has to be treated as decreeof the Supreme Court. It is so stated in Section 6(2) of Inter-State Water Disputes Act, 1956 to give teeth to the award passedby the Tribunal so that none of the States can raise objection tothe same and be guided by the directions of the Tribunal. TheHpurpose of framing the scheme is exclusively for implementation

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of the award. The purpose of Section 6A is to act in the mannerin which the award determines the allocation and decides thedispute with regard to allocation or sharing of water. Therefore,it is directed that scheme shall be framed by the CentralGovernment within span of six weeks from the date of thepresent judgment, so that the authorities under the scheme cansee to it that the present decision which has modified the awardpassed by the Tribunal is smoothly made functional and the rightsof the States as determined by this Court are appositely carriedout. It is categorically conveyed that the need-based monthlyrelease has to be respected. It is hereby made clear that noextension shall be granted for framing of the scheme on anyground. [Para 403] [1119-F-H; 1120-A-B]17.2 Union of India is not correct in contending that Section6A of the 1956 Act by employing the word “may” has left roomfor discretion to the Central Government for the purpose offraming scheme. The framing of the scheme is exclusively meantfor implementation of the award or as the same gets modified bythis Court. Subject to the scheme to be formulated under Section6A of the 1956 Act, in terms of the present adjudication, therecommendations/directives of the Tribunal with regard to themonthly releases and not inconsistent with anything decidedherein, are hereby endorsed for the present for period of 15(fifteen) years hence. [Para 404] [1123-C-E]

18. Maintainability of the Appeals by Special Leave:

18.1 The legislative intendment of Section 6(2) of Inter-State Water Disputes Act, 1956, is not to create any kind ofembargo on the jurisdiction of Supreme Court. The said provisionwas inserted to give the binding effect to the award passed bythe Tribunal. The fiction has been created for that limited purpose.Section 11 of the 1956 Act bars the jurisdiction of the courts andthat is in consonance with the language employed in Article 262of the Constitution. The Founding Fathers had not conferred thepower on this Court to entertain an original suit or complaint andthat is luminescent from the language employed in Article 131 ofthe Constitution and from the series of pronouncements of thisCourt. Section 6 cannot be interpreted in an absolute mechanicalmanner and the words “same force as an order or decision”

858SUPREME COURT REPORTS

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Acannot be treated as an order or decree for the purpose ofexcluding the jurisdiction of this Court. It cannot be decree asif this Court has adjudicated matter and passed decree. TheParliament has intended that the same shall be executed or abidedas if it is decree of this Court. provision should not beinterpreted to give different colour which has technical designBrather than serving the object of the legislation. Therefore, Section6(2) does not bar the jurisdiction conferred on this Court underArticle 136. [Para 18] [871-H; 872-A-E]

18.2 While adjudicating matter of such nature the Courtcannot be totally guided exclusively either by “broad” orCextraordinary discretionary or “narrow” or restrictive approachbut it would be appropriate to have an intermediary approach asthe controversy covers span of more than 100 years involvingchange in boundaries, population growth and subsequent events.Though the parameters of applicability of Article 136 can be broad

Dto appreciate the materials and scrutinize the manner ofappreciation by the Court/Tribunal depending upon the lis raised.In the present appeals preferred by special leave, it would beappropriate for the Court to adopt an approach which is neitherbroad nor narrow but an “intermediary one”, especially havingregard to the nature of the dispute that involves the inhabitantsEof three States and Union Territory. [Para 382] [1104-F-H; 1105-A]

State of Tamil Nadu v. State of Karnataka and others(1991) Suppl. 1 SCC 240 : [1991] 2 SCR 501 – relied on.

Atlas Cycle Industries Ltd. and others v. State ofFHaryana (1979) 2 SCC 196 : [1979] 1 SCR 1070;Common Cause v. Union of India and others (2003) 8SCC 250 : [2003] 4 Suppl. SCR 471; K.T. PlantationPrivate Limited and another v. State of Karnataka(2011) 9 SCC 1 : [2011] 13 SCR 636; AccountantGeneral, State of Madhya Pradesh v. S.K. Dubey andGanother (2012) 4 SCC 578 : [2012] 3 SCR 720; HukumChand v. Union of India (1972) 2 SCC 601 : [1973] 1SCR 896 – held inapplicable.

Union of India and another v. Tulsiram Patel (1985) 3SCC 398 : [1985] 2 Suppl. SCR 131; Satyavir Singh

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

and others v. Union of India and others (1985) 4 SCCA252 : [1985] 2 Suppl. SCR 791; A.K. Kaul and anotherv. Union of India and another (1995) 4 SCC 73 : [1995]3 SCR 469; Ganga Kumar Srivastava v. State of Bihar(2005) 6 SCC 211;P.S.R. Sadhanantham v.Arunachalam and another (1980) 3 SCC 141; BengalBChemicals & Pharmaceuticals Works Ltd., Calcutta v.Their Workmen [1959] (Supp) 2 SCR 136; Jose DaCosta & another v. Bascora Sadasiv Sinai Narcornimand others. (1976) 2 SCC 917; Ram Piari v. Bhagwantand others (1990) 3 SCC 364 : [1990] 1 SCR 813;Phulchand Exports Ltd. v. O.O.O. Patriot (2011) 10CSCC 300 : [2011] 15 SCR 1129; Crompton Parkinson(Works) Pvt. Ltd., Bombay v. Its Workmen and others[1959] Suppl. (2) SCR 936; Vashit Narain Sharma v.Dev Chandra and others [1955] 1 SCR 509; RamBharosey Agarwal v. Har Swarup Maheshwari (1976)D3 SCC 435; Jamshed Hormusji Wadia v. Board ofTrustees, Port of Mumbai and another (2004) 3 SCC214 : [2004] 1 SCR 483 – referred to.

Anisminic Ltd. v. Foreign Compensation [1969] 1 AllER 208; The State of Washington Department ofEEcology v. Clarence E. and Peggy V. Grimes 121 Wash.2d. 459; In Re: Hague v. Nephi Irrigation Co. 16 Utah421, 52 P. 765 (1898) : 41 LRA 311 – referred to.

Craies on Statute Law Interpretation – referred to.

[2018] 5 S.C.R.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

[1959] Suppl. 2 SCR 936

[1955] 1 SCR 509(1976) 3 SCC 435

[2004] 1 SCR 483[1990] 3 SCR 83

[1979] 1 SCR 1070

[2003] 4 Suppl. SCR 471

[2011] 13 SCR 636[2012] 3 SCR 720[1973] 1 SCR 896

referred toPara 296Areferred toPara 296referred toPara 296referred toPara 296referred toPara 350Bheld inapplicablePara 360held inapplicablePara 360held inapplicablePara 360Cheld inapplicablePara 360held inapplicablePara 360

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2453of 2007

From the Judgment and Order dated 05.02.2007 of the CauveryWater Disputes Tribunal at New Delhi under Section 5(2) of the Inter-State Water Disputes Act, 1956.

WITH

C. A. Nos. 2454 and 2456 of 2007.

Ranjit Kumar, S.G., Madhusudan R. Naik, Adv. Gen., Fali S.Nariman, S.S. Javali, Jaideep Gupta, Shekhar Naphade, A. S. Nambiar,Rakesh Dwivedi, Subramonium Prasad, Sr. Advs., Mohan V. Katarki,S. C. Sharma, Brijesh Kalappa, R.S. Ravi, V. N. Raghupathy, J. M.Gangadhar, Ranvir Singh, Abdul Azeem Kalebudde, G. Prakash, JishnuM. L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Vijay Shankar,Kunal Chattarjee, Saurabh Gupta, G. Umapathy, C. Paramasivam, K.V.Vijayakumar, B. Balaji, S. Wasim A. Qadri, Mrs. Madhavi Diwan, AjaySharma, Ms. Snidha Mehra, Hemant Arya, Ms. Saudamini Sharma, Ms.Kirti Dua, Ms. Somya Rathore, Sumit, D. S. Mahra, M. K. Maroria, R.Nedumaran, V.G. Pragasam, S. Prabu Ramasubramanian, P. K. Manohar,Ms. Shantha Vasudevan, Manu Sundaram, Ramesh Babu M. R., RajeshMahale, B. Balaji, A. S. Bhasme, Ms. Aparna Bhat, Ms. SupreetaSharanagouda, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DIPAK MISRA, CJI

S. No.HeadingPage No.A.The proceedings in this Court in the 6present AppealsB.Maintainability of the Appeals by 18 Special LeaveC.Stand of all parties pertaining to 21remand of the matter to the Tribunal after deliberation of the legal issuesD.Reference of the dispute to the 24TribunalE.The initial proceedings before the 29 TribunalF.The issue of Ordinance by the State of 34Karnataka and the Presidential ReferenceG.The genesis of the controversy50 H.Doctrine of Paramountcy and its 74 extinction on coming into force of the Indian Independence Act, 1947I.Infraction of Article 363 and non-108 maintainability of the dispute on the basis of agreementsJ.Unconscionability of the 1892 133 and 1924 agreementsK.Status of the agreements after coming 147 into force of the States Reorganization Act, 1956L.Issue relating to expiry of the 164 agreementsM.Did the complaint not require any 179 adjudication?N.The approach adopted by the Tribunal 183 post 1974 and correctness of the sameO.The quintessence of pleadings before 197 the Tribunal

* Ed. note: The pages mentioned in the index above giving the scheme of thejudgment denotes the page number of the original judgment.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE863OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]P.The findings of the Tribunal on various 215AissuesP.1 Prescriptive rights and other 215 claims P.2Breach of agreements of 1892 217and 1924 and consequences thereof BP.3Peripheral issues qua claims of 219Kerala and Union Territory of Pondicherry (presently named as “Puducherry”)P.4Gross water available for 222apportionment CP.4(i) Surface flow of water 222 P.4(ii) Identification of dependable 228 yieldP.4(iii)Additional source of water231P.5The principles of apportionment241P.6Determination of "irrigated 255Dareas" in Tamil Nadu and KarnatakaP.7Assessment of water for 269"irrigation needs" in Tamil Nadu and KarnatakaP.8Assessment of water for 297E"Domestic and Industrial Purposes" in Tamil Nadu and Karnataka P.9 Assessment of water for 305 "Environment Protection and Inevitable Escapages into Sea" Fin Tamil Naduand KarnatakaP.10 Water allocation for the State of 308 Kerala and Union Territory of Pondicherry (presently named as “Puducherry”) P.11Final water allocation amongst 325GcompetingStatesP.12 Monthly schedule for delivery of 327 water at inter-State contact pointsQ.Mechanism (Cauvery Management Board) 335 for implementation of Tribunal's decisions

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

864SUPREME COURT REPORTS

[2018] 5 S.C.R.

R.Final order of the Tribunal337S.Arguments advanced on behalf of State of 345 Karnataka as regards the allocation of water on various headsS.1 Submissions of Mr. Fali S. 345 Nariman BS.2 Submissions of Mr. S.S. Javali 349 S.3 Contention raised by Mr. Mohan 351 V. Katarki S.4 Proponements of Mr. Shyam 360 DivanT.Arguments put forth by the State of Tamil368 CNaduT.1 Submissions of Mr. Shekhar 368 NaphadeT.2 Contentions raised by Mr. 384 Rakesh Dwivedi U.Arguments advanced on behalf of the State 387 Dof KeralaV.Submissions urged on behalf of Union 395 Territory of PuducherryW.Arguments on behalf of Union of India398 X.Our findings on issues of allocation402 X.1 Principles of apportionment to 402 Ebe followedX.2 Determination of ‘irrigated 422 areas” in Tamil Nadu and Karnataka X.3 Assessment of water for 426 “irrigation needs” in Tamil Nadu and Karnataka FX.4 Water allocation for the State of 431 KeralaX.5 Water allocation for the Union 432 Territory of Puducherry X.6 Recognition of ground water as 433 an additional source in Tamil GNadu X.7 Water allocation for Domestic 438 and Industrial purposes in Tamil Nadu X.8 Water allocation for Domestic 439 and Industrial purposes of State of Karnataka

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE865OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

AX.9Allocation of water towards 446environmental protection X.10 Revised water allocation 447 amongst competing States Y.Interpretation of Section 6A of the 1956 Act452Z.The conclusions in seriatim457

In this batch of Appeals, the assail is to the award dated 05.02.2007passed by the Cauvery Water Disputes Tribunal (for brevity, “theTribunal”) constituted under Section 3 of the Inter-State Water DisputesAct, 1956 (for brevity, “the 1956 Act”) by three States, namely, Karnataka,Tamil Nadu and Kerala as each of them is aggrieved by the allocationand sharing of water of river Cauvery according to individual perception,perspective and understanding. It is worthy to mention here that thereare two principal States, namely, State of Karnataka and State of TamilNadu who as adversaries take the centre stage. The other two, State ofKerala and Union Territory of Pondicherry (presently named as“Puducherry”) in their own way, attacked the award and also seriouslycriticized the stand and stance of the main protagonists because of theirdominant, assertive and adamant attitude by which they not only feelneglected and discriminated but have also been compelled to harbourthe idea that two of them have created impediment in their rightful dueconcerning the release of water.

A. The proceedings in this Court in the present Appeals

2. Before the hearing of the Appeals commenced, on being movedby the State of Tamil Nadu, State of Karnataka and the CentralGovernment, certain orders came to be passed. It is necessary toadumbrate the nature of orders passed by this Court, for without thesaid narration, it will be an incomplete narrative. We may immediatelystate that we shall devote some space to the genesis of the disputes as ittravels beyond 100 years and the learned counsel for the parties haveargued with vigour and energy in that regard. The said submissionsshall be noted and addressed in due course. Be it noted, at one stage, theissue of entertainability of the appeals by special leave was raised by theUnion of India and this Court had to deal with it and delivered judgmentin State of Karnataka v. State of Tamil Nadu and others[1]. Certainother orders also reflected the stand of the contesting States and where

1 (2017) 3 SCC 362

Aand how they were to be guided by the cherished principle of rule of lawby accepting the order of the Court and not take deviant path.

3. Though the award was passed on 5[th] February, 2007, yet it waspublished by requisite notification dated 19[th] February, 2013. On10.05.2013, in I.A. No. 5/2013 in Civil Appeal No. 2456 of 2007, two-BJudge Bench, taking note of the notification dated 19[th] February, 2013and also considering the fact that the said notification was underconsideration of the Central Government, passed an order constituting aSupervisory Committee as pro tem measure for implementation of thefinal order of the Cauvery Water Disputes Tribunal dated February 5,2007 which was notified vide notification dated February 19, 2013. TheCtwo-Judge Bench ordered that the said Supervisory Committee shallconsist of Secretary, Union Ministry of Water Resources as Chairmanand the Chief Secretaries of the respective States of Karnataka, TamilNadu, Kerala and Union Territory of Puducherry as members.

4. The order clarified that the aforesaid pro tem arrangement wasDwithout prejudice to the pending civil appeals, namely, Civil Appeal Nos.2453 of 2007, 2454 of 2007 and 2456 of 2007. Further, the order grantedliberty to the Central Government to apply for modification of the saidarrangement as and when necessary.

5. I.A. No. 10 of 2016 in Civil Appeal No. 2456 of 2007 was filedEby the State of Tamil Nadu wherein Mr. Shekhar Naphade, learnedsenior counsel who had appeared for the applicant, had contended thatthe State of Karnataka had not been complying with the directions givenby the Tribunal in its final order and that the said order had been flagrantlyviolated. Further, during the course of arguments, Mr. Naphade hadFpointed out that if the water was not released by the State of Karnataka,the ‘samba’ crops would be absolutely damaged which would lead to anunacceptable plight to be faced by the farmers of the State of TamilNadu.

6. Per contra, Mr. Fali S. Nariman, learned senior counsel whoGhad appeared for the State of Karnataka, had drawn the attention of theBench to paragraph ‘D’ of Clause IX of the final order of the Tribunalwhich reads as under :-

“D. The Authority shall properly monitor the working of monthlyschedule with the help of the concerned States and Central WaterCommission for period of five years and if any modification/H

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

adjustment is needed in the schedule thereafter, it may be workedout in consultation with the party States, and help of CentralWater Commission for future adoption without changing theannual allocation amongst the parties.”

Learned senior counsel for the State of Karnataka had submittedthat it is obligatory on the part of the State of Tamil Nadu to approachthe Supervisory Committee that was constituted vide notification dated

22[nd] May, 2013. Mr. Nariman had also drawn the attention of the Benchto paragraphs 2 and 3 of the notification which deal with the constitutionand the role of the Supervisory Committee.

For better appreciation, we think it condign to reproduce the saidparagraphs. They read as under:-

“Constitution of the Supervisory Committee:-

(1) There shall be Committee under this scheme to be knownas the Supervisory Committee (hereinafter referred to as theCommittee).

(2) The Committee referred to in sub-rule(1) shall consist of thefollowing, namely:-

(a) Secretary, the Ministry of Water Chairman Resources, Government of India Ex officio

(b) Chief Secretaries to the State, Members, Governments of Karnataka, Ex officioTamil Nadu, Kerala and the Union Territory of Puducherry or his duly nominated representative

(c) Chairman, Central Water Members, Commission Ex officio

(d) Chief Engineer, Central Water Member- Commission Secretary Secretary

3. Role of the Committee:- The role of the Committee shall beto give effect to the implementation of the Order dated the 5[th]February, 2007 of the Tribunal:

AProvided that in case of any doubt or difficulty, the Chairman,Supervisory Committee and, if necessary, any of the parties may applyto Hon’ble Supreme Court for appropriate directions with notice to theother States and the Union Territory.”

During the course of proceedings of the said I.A. No.10 of 2016,BMr. Nariman, learned Senior Counsel handed over note to the Benchwhich contained certain suggestions, foremost of them being that theState of Karnataka shall release 10000 cusecs per day (about 0.86 TMC)from 7[th] September, 2016 to 12[th] September, 2016. Mr. Naphade, on theother hand, submitted that instead of 10000 cusecs per day (about 0.86TMC), there should be release of 20000 cusecs of water per day.C

7. The Bench, after giving patient hearing to the learned counselfor both the parties, passed an order on 5[th] September, 2016 in the followingterms:-

“(a) The applicant, the State of Tamil Nadu, shall approach theDSupervisory Committee within three days from today. Response,if any, by the State of Karnataka be filed within three daystherefrom.

(b) The Supervisory Committee shall pass appropriate directionin this regard within four days from the date of filing of theEreference keeping in view the language employed in the final orderof the Tribunal. Be it clarified, the Supervisory Committee is boundby the language used in the order passed by the Tribunal.

(c) Coming to the immediate arrangement, keeping in view thegesture shown by the State of Karnataka and the plight that hasbeen projected with agony by Mr. Naphade, we think it appropriateFto direct that 15 cusecs of water per day be released at Biligunduluby the State of Karnataka for ten days.

(d) The State of Tamil Nadu is directed to release waterproportionately to the Union Territory of Puducherry.”

G8. On 06.09.2016, the matter was taken up as there was mistakeas the order dated 05.09.2016 incorrectly mentioned 10 cusecs and 20cusecs in paragraph 1 and 15 cusecs in sub-paragraph (c) which requiredto be read as 10000 cusecs, 20000 cusecs and 15000 cusecs respectively.The corrections were carried out on that day.

9. An application for modification of the order dated 05.09.2016,viz., I.A. No.12 of 2016 in I.A. No.10 of 2016 in Civil Appeal No.2456of 2007 was mentioned on 11.09.2016 which was taken up on 12.09.2016on the basis of an affidavit for urgent hearing.

10. Vide paragraph 3 of the said affidavit, the deponent hadsubmitted that modification of the interim order dated 5[th] September,2016 passed by this Court was necessary because of spontaneousagitations in various parts of the State of Karnataka which had paralyzednormal life and resulted in destruction of public and private propertiesworth hundreds of crores of rupees. The deponent had further submittedthat modification was required having regard to the ground realities, needsand requirements as stated in the application.11. The Court, after perusal of the said affidavit and the annexedapplication for modification, noted that the application contained certainaverments which cannot be conceived of to be filed in court of lawseeking modification of an earlier order. The Court categorically statedthat agitation in spontaneity or propelled by some motivation or galvanizedby any kind of catalystic component can never form the foundation forseeking modification of an order. The Court observed that its order wasbound to be complied with by all concerned and it is the obligation of theexecutive to maintain law and order and to see that the Court’s order iscomplied with in letter and spirit. The Court further observed that citizenscannot become law unto themselves; and when court of law passes anorder, it is the sacred duty of the citizens to obey the same. The Courtalso expressed anguish over the pleadings in the application and also theaffidavit filed for urgency and deplored the same.

12. Mr. Nariman, learned senior counsel appearing for the Stateof Karnataka, unequivocally accepted during the hearing that theaforesaid affidavit was erroneously drafted. However, he contendedthat the prayer in essence required reconsideration of the order. TheCourt thereafter proceeded to deal with the proponements of Mr. Narimanin respect of the reliefs sought for in the application. The applicationmainly sought for the modification of order of this Court dated 05.09.2016(as corrected on 06.09.2016) and an order to the effect to keep in abeyanceClause (c) of the directions of this Court in its order dated 05.09.2016 ascorrected on 06.09.2016.

13. After giving due consideration to the exhaustive argumentspresented by the senior counsel for both the States, the Court was of the

Aview that the prayer of abeyance did not deserve acceptance and,accordingly, rejected the same. As far as the prayer for modificationwas concerned, the Court modified the order dated 5[th] September, 2016to the extent that the State of Karnataka shall release 12000 cusecs ofwater per day and that the said direction shall remain in force till 20[th]September, 2016. The Court also directed the Supervisory CommitteeBto arrive at decision in conformity with the final order of the Tribunalwith respect to the situation of shortage of water and plight of farmers inboth the States.

14. On 20.9.2016, I.A. No.12 of 2016 in I.A. No.6 of 2016 in CivilAppeal No.2456 of 2007 was taken up. After referring to its earlierCorders, the Court considered the submissions advanced by the learnedcounsel for the parties and took note of the directions of the Tribunal forconsideration of constituting the Cauvery Management Board. The Court,thereafter, directed the Union of India to constitute the CauveryManagement Board within four weeks and produce before the CourtDafter four weeks the notification indicating that the said Board has beenconstituted. As an interim measure, the Court directed the State ofKarnataka to release 6000 cusecs of water from 21[st] September, 2016till 27[th] September, 2016.15. On 27.09.2016, the Court sought the assistance of the learnedEAttorney General for India to apprise the Central Government to discusswith both the States so that an interim solution could be arrived at. On30.09.2016, the minutes of the proceedings were produced by learnedAttorney General for India and Mr. Nariman, learned senior counselappearing for the State of Karnataka, produced two letters and requestedthe same to be taken on record and the said prayer was acceded to.FProceeding further, however, the Court modified the order dated 5[th]September, 2016. The two letters pertained to the communicationbetween Mr. Nariman and the State Government relating to complianceof this Court’s order. It is not necessary to refer to the episode in detail.It is worthy to state here that on 04.10.2016, the matter was taken up asGit was mentioned by the learned Attorney General for India. Thementioning related to modification of the earlier order. On that day, asthe order of this Court was complied with and that sage controversywas put to rest. Mr. Nariman assisted the Court. We think it necessaryto state here that Mr. Nariman had courageously lived upto the highesttradition of the Bar and we had recorded our uninhibited accession. BeH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

it noted, after hearing learned counsel for the parties and Mr. MukulRohatgi, learned Attorney General for India, the Court constituted HighPower Technical Team to arrive at an interim solution and directed theState of Karnataka to release 2000 cusecs of water from 7.10.2016 till18.10.2016.

16. On the next date of hearing, i.e., 18.10.2016, the report of theCommittee was filed but it was noticed that the Committee had notsuggested anything with regard to the quantity of water. At this juncture,the learned Attorney General for India submitted that the appeals arenot maintainable. The same stand was taken by Mr. A.S. Nambiar,learned senior counsel appearing for the Union Territory of Puducherry.On that day, the issue also arose for consideration of the nature of theinterim order. Regarding the release of 2000 cusecs of water from7.10.2016, it was submitted by Mr. Madhusudan R. Naik, learnedAdvocate General of Karnataka assisting Mr. Nariman for the State ofKarnataka, that the order dated 18.10.2016 had been complied with.After noticing the submissions with regard to the release of water byway of interim measure, it was decided to hear the matter on merits.On that day, the earlier order passed by this Court was reiterated to theeffect that the executive of both the States shall see to it that peace andharmony would be maintained in both the States and that the citizens donot become law unto themselves. Further, it was ordered that it wouldbe the obligation of the executive to ensure that when the matter isheard and the interim order has been passed and that when the State ofKarnataka is complying with the order, mutuality of respect betweenboth the States and the citizens should be maintained. The order furtherimpressed upon the fact that maintenance of law and order and care forpublic property is sign of elevated democracy.

17. We have paraphrased the interim orders as we are disposedto think that they deserve to be reproduced as the same is necessary forwhat we are going to say in the final judgment.

B. Maintainability of the Appeals by Special Leave

18. As stated earlier, the learned Attorney General for India raisedthe issue with regard to the maintainability of the appeals. In the reportedjudgment State of Karnataka (supra), the Court has held that whenjudged by the principles of statutory interpretation to understand thelegislative intendment of Section 6(2), it is clear as crystal that the

AParliament did not intend to create any kind of embargo on the jurisdictionof this Court. The said provision was inserted to give the binding effectto the award passed by the Tribunal. The Court opined that the fictionhas been created for that limited purpose. Section 11 of the 1956 Actbars the jurisdiction of the courts and needless to say, that is in consonancewith the language employed in Article 262 of the Constitution. TheBFounding Fathers had not conferred the power on this Court to entertainan original suit or complaint and that is luminescent from the languageemployed in Article 131 of the Constitution and from the series ofpronouncements of this Court. The Court further held that Section 6cannot be interpreted in an absolute mechanical manner and the wordsC“same force as an order or decision” cannot be treated as an order ordecree for the purpose of excluding the jurisdiction of this Court.Elaborating the same, it was held that it cannot be decree as if thisCourt has adjudicated matter and passed decree. The Parliamenthas intended that the same shall be executed or abided as if it is decree

of this Court. The Court further ruled that provision should not beDinterpreted to give different colour which has technical design ratherthan serving the object of the legislation. The exposition of the principlesof law relating to fiction, the intendment of the legislature and the ultimatepurpose and effect of the provision compelled the Court to repel thesubmissions raised on behalf of the Union of India that Section 6(2) barsEthe jurisdiction conferred on this Court under Article 136. At that stage,the Court clarified in the following words:-

“We would like to clarify one aspect. The learned Senior Counselappearing for the State of Karnataka as well as the State of TamilNadu have commended us to various authorities which we haveFalready referred to in the context of Article 136 of the Constitution,but the purpose behind the said delineation is to show the broadcanvas of the aforesaid constitutional provision in the context ofmaintainability of the civil appeals. How the final order passed bythe Tribunal would be adjudged within the parameters of the saidconstitutional provision has to be debated when we finally addressGthe controversy pertaining to the subject-matter of the civilappeals.”

19. Referring to para 82 of the judgment, it is submitted by Mr.Nariman, learned senior counsel for the State of Karnataka, that thisCourt should exercise the wide powers bestowed in it under Article 136H

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of the Constitution in case of this nature and exercise its discretion.Similar was the submission of learned senior counsel appearing for theother States. Be it clarified that each one is contesting appellant asalso respondent.

20. Keeping in view the controversy at hand, we think it appropriateto advert to the other legal issues and appreciate the factual score on therequired parameters which will be unfolded in the course of ourdeliberations. We do not presently intend to state it as wide or broadapproach or restricted or narrow approach. The said concept shall bedwelled upon at the relevant stage.

C. Stand of all parties pertaining to remand of the matter tothe Tribunal after deliberation of the legal issues

21. At the commencement of the hearing of the appeals, seriouscriticism was advanced on behalf of the State of Karnataka that afterthe hearing before the Tribunal was closed, the State of Tamil Nadufiled an affidavit which was marked as TN Ext. 1665 and when objectionswere raised, the Tribunal had assured that the said document would notbe relied upon but unfortunately the Tribunal had referred to the contentsof the affidavit and relied upon the same. Be it noted, the said affidavitcame into existence because of the suo motu order passed by the Tribunalon 12.11.2002 which is as follows:-

“During the course of hearing of arguments it transpired that mostof the riparian States which are party to the proceedings cultivatepaddy and allow at least 2-3 inches of water to remain in fieldsthroughout till the crop matures. We are told that this is thetraditional practice which is being followed:

In many States in India paddy crops, after transplantation, arewatered from time to time and particular level of water neednot remain in the fields throughout. It need not be pointed out thattraditional practice, which is being followed in Cauvery basin statesobviously will consume and require more water in the fields.

Since 1973, different recommendations have been maderequesting the riparian States before us to practice economy whileutilizing waters of river Cauvery.

Learned Additional Advocate General, appearing on behalf of theState of Tamil Nadu stated that during last several years, steps

have been taken to improve the water use efficiency. Similar standhas been taken on behalf of the States of Karnataka, Kerala andthe Union Territory of Pondicherry.

It need not be impressed that it better scientific methods areadopted in cultivation of paddy, the requirement of water is boundBto be less.

All the party States and the Union Territory of Pondicherry shallfile their respective Affidavits within six weeks from today, as towhat steps have already been taken to reduce the requirement ofwater for cultivation and what steps are likely to be taken in nearfuture. In the Affidavit it should also be stated as to what minimumdelta is required for different crop varieties in their respectiveStates.”

22. It is assiduously urged that though the said affidavit has beenfiled in reply to the affidavits filed by the State of Karnataka in pursuanceDof the suo motu order passed by the Tribunal, yet the affidavit of theState of Tamil Nadu for the first time furnished its scientific crop waterrequirement, that is, detailed statement of computed crop waterrequirement system fed by Mettur and other schemes in the basin andthe Tribunal, contrary to the principles of law of evidence and in violationof the principal facet of natural justice, took the same on record andEmarked it as Ext. 1665. The Tribunal, as averred by the senior counselfor the State of Karnataka, had clarified that the affidavit filed by TamilNadu would not be relied upon in support of its case and that the casewould be considered on the facts and documents already brought onrecord.F23. The said submission was equally seriously resisted by the Stateof Tamil Nadu by stating that the said affidavit did not contain anythingnew but was only compilation of the materials already brought onrecord. As the debate continued, it was suggested to the learned counselfor the parties whether it would be advisable to remit the matter to theGTribunal on the said score. At this juncture, Mr. Nariman, learned seniorcounsel appearing for the State of Karnataka, submitted that consideringmore than 27 years had elapsed from the date of constituting the Tribunaland also considering that all the State parties to the dispute were beforethis Court and that each of them had challenged the Tribunal’s finalorder, it would be appropriate for this Court to exercise its authority

under Article 136 of the Constitution of India and decide the matterfinally. He submitted that as per judicial pronouncements, the power ofthis Court under Article 136 read with Article 142 being plenary, isexercisable outside the purview of ordinary law in cases where the needof justice demands interference as in the present case. The currentdispute is unique one affecting the lives of millions of people and thestakes involved are unparalleled. He submitted that remanding the matterto the Tribunal for fresh consideration would be an exercise in futilityand drain on the resources of all the parties concerned which must beeschewed.

24. We may fruitfully state here that all the learned counsel, atleast on this issue, unanimously stated that the remand is no solution tosuch dispute and this Court should decide the legal and factual issuesso that the controversy is put to rest. Thereafter, the hearing of theappeals continued. Accordingly, we shall proceed to decide the variouslegal issues which are of priority and upmost concern and thereafteradvert to the approach to be adopted in the obtaining factual matrix.

D. Reference of the dispute to the Tribunal

25. The State of Tamil Nadu lodged request before theGovernment of India raising water dispute and requesting foradjudication of the same by Tribunal constituted under Section 3 of the1956 Act. In the said complaint dated 6[th] July, 1986, it was stated onbehalf of the State of Tamil Nadu that water dispute had arisen withthe Government of Karnataka by reason of the fact that the interests ofthe State of Tamil Nadu and the inhabitants thereof in the waters ofCauvery, which is an inter-State river, had been prejudicially affected.The relevant part of the said communication reads as follows:-

“(a) the executive action taken by the Karnatka State inconstructing Kabini, Hemavathi, Harangi, Swrnavathi and otherprojects and expanding the aycut—

(i) Which executive action has resulted in materially diminishingthe supply of waters to Tamil Nadu.

(ii) Which executive action has materially affected the prescriptiverights of the ayacutdar already acquired and existing;

(iii)Which executive action is also in violation of the 1892 and1924 agreements; and

A(b) the failure of the Karnataka Government to implementdistribution and control of the Cauvery waters.

The bilateral negotiations hitherto held between the States ofKarnataka and Tamil Nadu have totally failed.

Also all sincere attempts so far made by the Government of IndiaBto settle this long pending water dispute by negotiations since 1970have totally failed.

Therefore, this request is made by the Government of TamilNadu to the Government of India under Section 3 of the Inter-State Water Disputes Act, 1956 to refer this water dispute to aTribunal.”

26. The complaint referred to the matters connected with thedispute and the efforts made for settling the disputes by negotiations.The broad features pointed out are the “River Cauvery”, “Developmentof Irrigation in the Cauvery Basin”, “The Inter-State Agreements ofD1892 and 1924”, “Violation of the aforesaid two agreements byKarnataka”, “Tamil Nadu’s concern”, “Tamil Nadu’s first call foradjudication in September, 1969", “Tamil Nadu’s formal request foradjudication in February, 1970", Tamil Nadu’s continued participation inthe discussion and negotiations”, “Filing of suit by Tamil Nadu in theESupreme Court”, “Prime Minister’s advice”, “The Cauvery Fact FindingCommittee (CFFC)”, “Consideration of the proposals put forth by theUnion Government”, “Last bilateral discussions with Karnataka held on23[rd] November, 1985”, “Chief Ministers’ meeting held at Bangalore (nowknown as Bengaluru) on 16 June, 1986" and the narration of the events.Thereafter, there was request for expeditious action for referring theFdispute to the Tribunal. The said part reads as follows:-

“From 1974-75 onwards, the Government of Karnataka has beenimpounding all the flows in their reservoirs. Only after theirreservoirs are filled up, the surplus flows are let down. The injuryinflicted on this State in the past decade due to the unilateral actionof Karnataka and the suffering we had in running around for afew TMC of water every time the crops reached the witheringstage has been briefly stated in note (Enclosure—XXVIII). It ispatent that the Government of Karnataka have badly violated theinter-State agreements and caused irreparable harm to the ageold irrigation in this State. Year after year, the realisation at Mettur

is falling fast and thousands of acres in our ayacut in the basin areforced to remain fallow. The bulk of the existing ayacut in TamilNadu concentrated mainly in Thanjavur and Thiruchirappallidistricts is already gravely affected in that the cultivation operationsare getting long delayed, traditional double crop lands are gettingreduced to single crop lands and crops even in the single croplands are withering and failing for want of adequate wettings atcrucial times. We are convinced that the inordinate delay in solvingthe dispute is taken advantage of by the Government of Karnatakain extending their canal systems and their ayacut in the newprojects and every day of delay is adding to the injury caused toour existing irrigation.

The Government of Tamil Nadu are of the firm view that the“water dispute with the Government of Karnataka has arisen byreason of the fact that the interests of the State of Tamil Naduand the inhabitants thereof in the waters of Cauvery, which is aninter-State liver have been affected prejudicially by —

(a) the executive action taken by the Karnataka State in constructingKabini, Hemavathi, Harangi, Swarnavathi and other projects andexpanding the ayacuts:

(i) which executive action has resulted in materially diminishingthe supply of waters to Tamil Nadu;

(ii) which executive action has materially affected theprescriptive rights of the avacutdars already acquired and‘existing; and

(iii) which executive action is also in violation of the 1892 and1924 Agreements; and

(b) the failure of the Karnataka Government, to implement the termsof the 1892 and 1924 Agreements relating to the use, distributionand control of the Cauvery waters.

The bilateral negotiations hitherto held between the States ofKarnataka and Tamil Nadu have totally failed.

Also all sincere attempts so far made by the Government of Indiato settle this long pending water dispute by negotiations since 1970have, totally failed.

878SUPREME COURT REPORTS

AI am therefore to request the Central Government to refer theCauvery Water Dispute to Tribunal for adjudication under theprovisions of Section 4 of the inter-State Water Disputes Act,1956 without any delay.”

27. On the basis of the aforesaid letter of request, the CentralBGovernment, by the notification dated June 2, 1990, constituted theTribunal and passed the following order of reference:-

“No. 21/1/90-WDGovernment of India

(Bharat Sarkar)CMinistry of Water Resources(Jal Sansadhan Mantralaya)New Delhi, June 2, 1990

ReferenceD

In the exercise of the powers conferred by sub-section (1) ofSection 5, of the Interstate Water Disputes Act, 1956 (33 of 1956),the Central Government hereby refers to the Cauvery WaterDisputes Tribunal for adjudication, the water disputes regardingthe interstate river Cauvery and the river valley thereof, emergingEfrom Letter No. 17527/K2/82-110 dated July 6, 1986 from theGovernment of Tamil Nadu (copy enclosed).

By order and in the nameof the President of India(M.A. Chitale)Secretary, (Water Resources)FChairman,The Cauvery Water Disputes Tribunal,New Delhi”

E. The initial proceedings before the Tribunal

G28. During the pendency of the reference, the Government ofTamil Nadu filed CMP No.4 of 1990 praying that the State of Karnatakabe directed not to impound or utilize the water of Cauvery river beyondthe extent impounded or utilized by them as on May 31, 1972 as agreedto by the Chief Ministers of the basin States and the Union of India forirrigation and power. It was also prayed that an order be passed restraining

the State of Karnataka from notifying any new projects, dams, reservoirs,canals, etc., and/or from proceeding further with the construction ofprojects, dams, reservoirs, canals, etc., in the Cauvery basin. The UnionTerritory of Puducherry filed CMP No. 5 of 1990 on 8.9.1990 seekingan interim order directing the State of Karnataka and Kerala to releasethe water already agreed to during the months of September to March.An emergent petition was filed by the State of Tamil Nadu forming thesubject matter of CMP No.9 of 1990 to direct the State of Karnataka torelease at least 20 TMC of water as the first installment pending formalorders in CMP No.4 of 1990. The said prayers were seriously opposedby the State of Karnataka and the State of Kerala on merits as well ason preliminary objection that the Tribunal had no power or jurisdictionto entertain the said petitions and to grant any interim relief. The Tribunalupheld the objections raised by the State of Karnataka and the State ofKerala holding that the said applications were not maintainable in lawand, accordingly, dismissed the same. Aggrieved by the said orders,special leave petition was filed for seeking leave to assail the said order.This Court passed the judgment in State of Tamil Nadu v. State ofKarnataka and others[2] wherein the majority view stated by N.M.Kasliwal, J. is extracted below:-“22. The above passage clearly goes to show that the State ofTamil Nadu was claiming for an immediate relief as year afteryear, the realisation at Mettur was falling fast and thousands ofacres in their ayacut in the basin were forced to remain fallow. Itwas specifically mentioned that the inordinate delay in solving thedispute is taken advantage of by the Government of Karnataka inextending their canal systems and their ayacut in the new projectsand every day of delay is adding to the injury caused to theirexisting irrigation. The Tribunal was thus clearly wrong in holdingthat the Central Government had not made any reference forgranting any interim relief. We are not concerned, whether theappellants are entitled or not, for any interim relief on merits, butwe are clearly of the view that the reliefs prayed by the appellantsin their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within thepurview of the dispute referred by the Central Government underSection 5 of the Act. The Tribunal has not held that it had noincidental and ancillary powers for granting an interim relief, but it

2 1991 Supp (1) SCC 240

880SUPREME COURT REPORTS

Ahas refused to entertain the C.M.P. Nos. 4, 5 and 9 on the groundthat the reliefs prayed in these applications had not been referredby the Central Government. In view of the above circumstanceswe think it is not necessary for us to decide in this case, the largerquestion whether Tribunal constituted under the Interstate WaterDisputes Act has any power or not to grant any interim relief. InBthe present case the appellants become entitled to succeed on thebasis of the finding recorded by us in their favour that the reliefsprayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990 are coveredin the reference made by the Central Government. It may also benoted that at the fag end of the arguments it was submitted beforeCus on behalf of the State of Karnataka that they were agreeableto proceed with the CMPs on merits before the Tribunal on theterms that all party States agreed that all questions arising out ofor connected with or relevant to the water dispute (set out in therespective pleadings of the respective parties), including allapplications for interim directions/reliefs by party States beDdetermined by the Tribunal on merits. However, the above termswere not agreeable to the State of Tamil Nadu as such we havedecided the appeals on merits.”

Sahai, J. opined thus:-

E“I agree with brother Kasliwal, J. that under the constitutional setup it is one of the primary responsibilities of this Court to determinejurisdiction power and limits of any tribunal or authority createdunder statute. But I have reservations on other issues includingthe construction of the letter dated July 6, 1986. However, it is notnecessary for me to express any opinion on it since what startedFas an issue of profound constitutional and legal importance fizzledout when the States of Karnataka and Kerala stated through theircounsel that they were agreeable for determination of theapplications for interim directions on merits.”

29. In view of the aforesaid directions, the Tribunal heard the saidGapplications of Karnataka and Puducherry. Before the Tribunal,objections were again raised on behalf of the State of Karnataka withregard to the maintainability of the applications filed by the State ofTamil Nadu and Union Territory of Puducherry for interim relief. TheTribunal did not countenance that objection and expressed the view thatHthe directions given by this Court were binding on it. The Tribunal

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

proceeded to decide the applications on merits and, vide its order datedJune 25, 1991, and on detailed analysis of the materials available, itdirected the State of Karnataka, as an interim measure, to ensure that205 TMC of water is available in Tamil Nadu’s Mettur Reservoir in ayear from June to May. The modalities for regulating the release ofwater so fixed were also laid down with further direction that 6 TMCof water for Karaikal region of the Union Territory of Puducherry wouldbe delivered by the State of Tamil Nadu. The State of Karnataka wasrestrained from increasing its area under irrigation by the waters of theriver of Cauvery beyond the existing 11.2 lakh acres. In issuing thisdirection, the Tribunal was guided by the consideration that pending finaladjudication, the rights of the parties ought to be preserved and it wasalso ensured that by the unilateral action of one party, the other partywas not prejudiced from getting appropriate relief at the time of passingof final orders. In quantifying the volume of 205 TMC of water to bereleased by the State of Karnataka from its reservoirs for Tamil Nadu’sMettur reservoir, the Tribunal construed the average of the annual flowof waters of the river Cauvery into the reservoir of Mettur Dam in TamilNadu as the reasonable basis. For the said purpose, amongst otheraspects, it took note of the inflow of water into Mettur Dam for periodof 10 years, i.e., 1980-81 to 1989-90 and worked out the figure by leavingout of scrutiny the abnormally good years and bad years and, thus, arrivedat the figure of 205 TMC. While entertaining the grievance of State ofTamil Nadu to the effect that the releases ought to be made timely tomeet the need of cultivation of crops for which it set down the norms, itnoted that the State of Kerala had not applied for any interim order.

F. The issue of Ordinance by the State of Karnataka andthe Presidential Reference

30. The State of Karnataka, however, on 25.07.1991, promulgatedan Ordinance captioned “The Karnataka Cauvery Basin IrrigationProtection Ordinance, 1991” which, for all intents and purposes, soughtto negate the effect of the interim order dated 25.06.1991. The saidOrdinance reads as follows:-

“An Ordinance to provide in the interest of the general public forthe protection and preservation of irrigation in irrigable areas ofthe Cauvery basin in Karnataka dependent on the waters of theCauvery river and its tributaries.

Whereas the Karnataka Legislative Council is not in session andthe Governor of Karnataka is satisfied that circumstances existwhich render it necessary for him to take immediate action, forthe protection and preservation of irrigation in the irrigable areasof the Cauvery basin in Karnataka dependent on the water ofCauvery river and its tributaries.

Now, therefore, in exercise of the power conferred under clause(1) of Article 213 of Constitution of India, I, Khurshed Alam Khan,Governor of Karnataka, am pleased to promulgate the followingOrdinance, namely:

1. Short title, extent and commencement.— (1) This Ordinancemay be called the Karnataka Cauvery Basin Irrigation ProtectionOrdinance, 1991.

(2) It extends to the whole of the State of Karnataka.

(3) It shall come into force at once.

2. Definition.— Unless the context otherwise requires:

(a) ‘Cauvery basin’ means the basin area of the Cauvery riverand its tributaries lying within the territory of the State ofKarnataka.

(b) ‘Irrigable area’ means the areas specified in the Schedule.

(c) ‘Schedule’ means the Schedule annexed to this Ordinance.

(d) ‘Water year’ means the year commencing with the first ofJune of calendar year and ending with the thirty-first of May ofthe next calendar year.

3. Protection of irrigation in irrigable area.— (1) It shall bethe duty of the State Government to protect, preserve and maintainirrigation from the waters of the Cauvery river and its tributariesin the irrigable area under the various projects specified in theSchedule.

(2) For the purpose of giving effect to sub-section (1) the StateGovernment may abstract or cause to be abstracted, during everywater year, such quantity of water as it may deem requisite, fromthe flows of the Cauvery river and its tributaries, in such mannerand during such intervals as the State Government or any officer,

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

not below the rank of an Engineer-in-Chief designated by it, maydeem fit and proper.

4. Overriding effect of the Ordinance.— The provisions of thisOrdinance, (and of any Rules and Orders made thereunder), shallhave effect notwithstanding anything contained in any order, reportor decision of any Court or Tribunal (whether made before orafter the commencement of this Ordinance), save and except afinal decision under the provisions of sub-section (2) of Section 5read with Section 6 of the Inter-State Water Disputes Act, 1956.

5. Power to remove difficulties.— If any difficulty arises in givingeffect to the provisions of this Ordinance, the State Governmentmay, by order, as occasion requires, do anything (not inconsistentwith the provisions of this Ordinance) which appears to benecessary for purpose of removing the difficulty.

6. Power to make rules.— (1) The State Government may, bynotification in the official Gazette make rules to carry out thepurpose of this Ordinance.

(2) Every rule made under this Ordinance shall be laid as soon asbe after it is made, before each House of the State legislaturewhile it is in session for total period of thirty days which may becomprised in one session or in two or more sessions and if beforethe expiry of the said period, either House of the State legislaturemakes any modification in any rule or order or directs that anyrule or order shall not have effect, and if the modification or directionis agreed to by the other House, such rule or order shall thereafterhave effect only in such modified form or be no effect, as thecase may be.”

31. The notification mentioned schedule of area which refers toirrigable areas in the Cauvery basin of Karnataka under various projectsincluding minor irrigation works. The State of Karnataka instituted asuit under Article 131 against the State of Tamil Nadu and others seekinga declaration that the order of the Tribunal granting interim relief waswithout jurisdiction. In the meantime, the Ordinance stood replaced bythe Act 27 of 1991 and the said Act reproduced the provisions of theOrdinance in verbatim except that in Section 4 of the Act, the words‘any court’ were omitted and Section 7 was added repealing theOrdinance. After the Act was passed, the President under Article 143,

Aon July 27, 1991, referred three questions for opinion of this Court. Thereference reads as follows:-

“WHEREAS, in exercise of the powers conferred by Section 4of the Inter-State Water Disputes Act, 1956 (hereinafter referredto as “the Act”), the Central Government constituted WaterDisputes Tribunal called “the Cauvery Water Disputes Tribunal”(hereinafter called “the Tribunal”) by notification dated June 2,1990, copy whereof is annexed hereto, for the adjudication ofthe Water Dispute regarding the Inter-State River Cauvery;

WHEREAS on June 25, 1991, the Tribunal passed an interimCorder (hereinafter referred to as “the Order”), copy whereof isannexed hereto;

WHEREAS, differences have arisen with regard to certainaspects of the Order;

WHEREAS, on July 25, 1991, the Governor of Karnatakapromulgated the Karnataka Cauvery Basin Irrigation ProtectionOrdinance, 1991 (hereinafter referred to as “the Ordinance”), acopy whereof is annexed hereto;

WHEREAS, doubts have been expressed with regard to theconstitutional validity of the Ordinance and its provisions;

WHEREAS, there is likelihood of the constitutional validity ofthe provisions of the Ordinance, and any action taken thereunder,being challenged in courts of law involving protracted and avoidablelitigation;

WHEREAS, the said differences and doubts have given riseto public controversy which may lead to undesirableconsequences;

AND WHEREAS, in view of what is hereinbefore stated, itappears to me that the following questions of law have arisen andare of such nature and of such public importance that it is expedientGto obtain the opinion of the Supreme Court of India thereon;

NOW, THEREFORE, in exercise of the powers conferredupon me by clause (1) of Article 143 of the Constitution of India,I, Ramaswamy Venkataraman, President of India, hereby referthe following questions to the Supreme Court of India forconsideration and report thereon, namely:

(1) Whether the Ordinance and the provisions thereof are inaccordance with the provisions of the Constitution;

(2) (i) Whether the Order of the Tribunal constitutes report anda decision within the meaning of Section 5(2) of the Act; and

(ii) Whether the Order of the Tribunal is required to be publishedby the Central Government in order to make it effective;

(3) Whether Water Disputes Tribunal constituted under the Actis competent to grant any interim relief to the parties to the dispute.”

32. To deal with the reference, the Constitution Bench narratedthe factual background that had led to the reference. After analyzingvarious aspects, the opinion was expounded in the following terms:-

“Question No.1: The Karnataka Cauvery Basin IrrigationProtection Ordinance, 1991 passed by the Governor of Karnatakaon July 25, 1991 (now the Act) is beyond the legislative competenceof the State and is, therefore, ultra vires the Constitution.

Question No. 2: (i) The order of the Tribunal dated June 25, 1991constitutes report and decision within the meaning of Section 5(2)of the Inter-State Water Disputes Act, 1956;

(ii) the said Order is, therefore, required to be published by theCentral Government in the official Gazette under Section 6 of theAct in order to make it effective.

Question No. 3: (i) Water Disputes Tribunal constituted underthe Act is competent to grant any interim relief to the parties tothe dispute when reference for such relief is made by the CentralGovernment;

(ii) whether the Tribunal has power to grant interim relief whenno reference is made by the Central Government for such reliefis question which does not arise in the facts and circumstancesunder which the Reference is made. Hence we do not deem itnecessary to answer the same.”

33. The aforesaid decision also noted certain aspect which hasbeen highlighted by the State of Karnataka in the course of argumentsand we shall be dealing with it in extenso at later stage. In paragraph4 of the judgment, the Court stated:-

A“4. There were two agreements of 1892 and 1924 for sharing thewater of the river between the areas which are predominantlytoday comprised in the States of Karnataka and Tamil Nadu, andwhich were at the time of the agreements comprised in the thenPresidency of Madras on the one hand and the State of Mysoreon the other. The last agreement expired in 1974….”B

Again in paragraph 11, the Court observed:-

“…… In the said letter, Tamil Nadu primarily made grievanceagainst the construction of works in the Karnataka area and theappropriation of water upstream so as to prejudice the interestsCdownstream in the State of Tamil Nadu. It also sought theimplementation of the agreements of 1892 and 1924 which hadexpired in 1974.”

34. The State of Karnataka, still undaunted by such reverses,filed an application before the Tribunal to recall its order dated 25.06.1991Dciting several grounds justifying such review. The Tribunal, vide its orderdated 07.04.1992, however, declined to interfere with its earlier orderdated 25.06.1991 with the observation that in case, thereafter, there wasany change in circumstance or undue hardship in particular year toany party, it would be open to such party to approach it for appropriateorders. The stage being thus set, following the submissions of theErespective statements of cases, counters and rejoinders, the Tribunalframed the following issues:-

“(1) Are both the Agreements of 1892 and 1924 or either ofthem, invalid?

(2) Are both the Agreements of 1892 and 1924 or either of themFinvalid because of the alleged oppression or because thesame were between the “unequal Riparian States” asclaimed by the State of Karnataka?

(3) Are both the Agreements of 1892 and 1924 binding andenforceable upon all the parties to the present referenceG(dispute)?

(4) Are both the Agreements of 1892 and 1924, in so far as theriver Cauvery and its tributaries are concerned invalid, onthe ground that the then Chief Commissioner’s Province of

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Coorg, Podukottai State, Travancore State and the Frenchsettlement of Pondicherry and Karaikal, were not parties tothe said Agreement?

(5) Whether the circumstances, that, the Agreements of 1892and 1924 were not executed also on behalf of the then ChiefCommissioner’s Province of Coorg, Podukottai State,Travancore State and the French settlement of Pondicherryand Karaikal, made the said Agreements not binding andunenforceable against parties to the present reference.

(6) Is the State of Karnataka estopped from challenging boththe Agreements of 1892 and 1924 or either of them, on theground that it had said to have been acted upon?

(7) Is the State of Karnataka entitled to contend that in anyview of the matter the State of Tamil Nadu had waived therights claimed by it under the Agreements of 1892 and 1924?

(8) Has there been any breach of both the Agreements of 1892and 1924 or either of them, by any of the States. If so, whatis the effect of any such breach upon the rights of the partiesto the present reference?

(9) Did both the Agreements of 1892 and 1924 or either of themprovide for fair and equitable distribution of waters of theriver Cauvery and its tributaries to the parties of theseAgreements?

(10) (i) Could there be prescriptive rights as claimed by the Stateof Tamil Nadu/Union Territory of Pondicherry, in theirpleadings.

(ii) If the answer to (i) is in affirmative, what was the natureof such prescriptive rights, and

(iii) Whether the Agreements of 1892 and 1924 or either ofthem, were in recognition of the prescriptive rights as claimedby the State of Tamil Nadu?

(11) Have both the Agreements of 1892 and 1924 or either ofthem ceased to be operative and enforceable and bindingbecause of subsequent events including enactment of variouslaws and happening of changed circumstances?

A(12) What would be the true and proper construction of both theAgreements of 1892 and 1924, and their legal consequences?

(13) Were the Rules of Regulation in Annexure I to the Agreementof 1924 arbitrary, unconscionable and excessive to therequirements of the areas which then formed part of theBProvince of Madras?

(14) Whether the Rules and Regulation in Annexure I to theAgreement of 1924, are arbitrary and inequitable on theground that the same were excessive to the requirementsof the areas which now form the part of the State of TamilCNadu?

(15) Does the entire Agreement of 1924 stand terminated at theexpiry of 50 years from the date of its execution? Does notthe said agreement continue to subsist even after the expiryof the period of 50 years, subject to the modifications to beDmade to it in accordance with clause 10(xi) of the sameAgreement? What is the true scope and effect of clause10(xi) of the Agreement?

(16) If the answer to the first part of issue 15 is in the affirmative,whether the 1892 Agreement ought to continue in force untilEa new Agreement is entered into or the respective rights ofthe basin States are determined in accordance with law?

(17) What is the present relevance and also the effect of thedeliberations of the Cauvery Fact Finding Committee, andof the Study Team conducted by Shri CC Patel, AdditionalSecretary to the Government of India, and also of reports,Fmeasures and surveys conducted by other agencies?

(18) Upon true and proper assessment made according to thereliable and scientific method, what would be theapproximate available surface waters of the Cauvery basinincluding the delta region?G

(19) Whether the Agreement of 1892 was operative andenforceable also in respect of those tributaries of the riverCauvery which were not specifically mentioned in theSchedule ‘A’ to the said Agreement?

(20) What is the extent of additional/alternative means of waterresources available in the Cauvery basin by appropriateexploitation of ground water potentials and by trans-basindiversion?

(21) What is the approximate volume of ground water in eachone of the States/Union Territory which are parties to theReference and whether the said availability of ground water,if any, should be relevant in making fair and equitabledistribution of the Cauvery river waters?

(22) What should be the basis on which the availability of watersbe determined for apportionment, namely, dependability oron percentage basis? If it is on percentage basis, what oughtto be the said percentage?

(23) Whether there is wastage of waters in appreciable volumeor quantity, either in the basin or in the delta areas of theCauvery river? If so, what is its effect, if any, on the fairand equitable distribution of waters of the river Cauvery?

(24) Whether directions need be issued to the parties for ensuringthat the cropping patterns are compatible with the rainfalland the river flows and other relevant factors and whethersuch directions, if any, would be feasible and germane formaking equitable and fair distribution of the waters of theriver Cauvery?

(25) What is the extent of the return flow of water used in irrigationby the different parties and what would be its effect on theapportionment of Cauvery waters among them?

(26) What is the extent of drought prone/affected areas in theCauvery basin region in each of the party States, and whatis its effect, if any, in making equitable apportionment ofwaters?

(27) Should trans-basin diversion of the water of rivers Kabiniand Bhavani be permitted for generation of power and forirrigation and water supply by the State of Kerala? If so, towhat extent and subject to what conditions and with whatsafeguards?

A(28) Whether generation of power by trans-basin diversion ofwater by the parties would be legal and justified, particularly,if part of such power would be utilised by the people ofthe river basin itself?

(29) Are the States of Karnataka and Tamil Nadu resorting toBtrans-basin diversion of the waters of river Cauvery? If so,whether those States can be permitted to object to theproposed trans-basin diversion of the water by the State ofKerala?

(30) Should any preference or priority be given to utilization ofCwater in manner such that it can generate power as wellas meet the needs of irrigation and water supply within thebasin/outside the basin area?

(31) What is the extent of the contribution by the different Statesto the total flow in the Cauvery river and what would be itsDrelevance for equitable apportionment of waters to the partyStates?

(32) Whether directions are required to be issued to ensure thatthe waters of the Cauvery and its tributaries maybedeveloped by each of the States, singly or jointly, to generateEmaximum hydroelectric power without detriment to irrigationuses?

(33) Is the State of Karnataka entitled to compensation for theloss suffered as averred in paragraphs 18.9 to 18.11 of theStatement of Case of Karnataka and as per averments inFparagraphs 34 to 41 of the Counter of Karnataka to theStatement of Case of Tamil Nadu?

(34) Whether any order/direction should be issued upon any oneor more of the States for regulated release of the Cauverywaters and whether in that event compensation is to beGawarded in favour of the parties, prejudicially affectedthereby?

(35) To what extent should Kerala be permitted to utilise thewaters generated in Kerala when such utilisation in Kerala

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

would secure either more or equal benefit for the countryand its people than by its utilisation in any of the other States?

(36) Whether the State of Kerala requires part of Cauverywater for generation of power, and, if so, to what extent?

(37) Whether shortage of food in any of the States would be arelevant factor to be taken into consideration in making theapportionment of the Cauvery water?

(38) Whether the backwardness, under-developed and allegedlyneglected area of particular State would be relevantmatters in making fair and equitable distribution of thewater of the Cauvery river?

(39) Whether the construction works executed by the State ofTamil Nadu in the Upper Bhavani, Vargarpallam West andVargarpallam East, have unreasonably deprived the rightsof the State of Kerala in the natural flow of the waters ofthe river Cauvery and, if so, to what effect?

(40) Whether the executive action taken by Karnataka inconstructing Kabini, Hemavathi, Harangi, Suvarnavathy andother projects and expanding its ayacuts has prejudiciallyaffected the interests of Tamil Nadu and Pondicherry,materially diminished the supply of waters to Tamil Naduand Pondicherry and materially affected the prescriptiverights claimed by Tamil Nadu and Pondicherry on behalf oftheir ayacutdars?

(41) Whether the above said executive action taken by Karnatakais in violation of 1892 and 1924 Agreements?

(42) Whether the State of Tamil Nadu is entitled to compensationfor the loss, damage and injury caused by the failure on thepart of Karnataka to implement the terms of 1924 Agreementafter 1974?

(43) If the answer to the above issue No.42 is in the affirmative,what is the amount of compensation to which Tamil Nadu isentitled?

A(44) What is the equitable share of the Union Territory ofPondicherry in the waters of the inter-State river Cauvery?

(45) Is the understanding reached between the then Governor ofFrench Settlement in India Pondicherry and the thenGovernor of Madras on 6thSeptember, 1926 to maintainBadequate supply of water to the French Territory stillsubsisting and as such enforceable against the State of TamilNadu?

(46) Whether the projects executed by the States of KarnatakaCand Tamil Nadu have unreasonably impaired the free flowof water of the river Cauvery into the Union Territory ofPondicherry?

(47) On what basis should the available waters be determined?

D(48) How and on what basis should the equitable apportionmentbe made?

(49) What directions, if any, should be given for the equitableapportionment and for the beneficial use of the waters ofthe river Cauvery and its tributaries?E

(50) What directions, if any, are required to be given regardingthe sharing of distress and surplus among the concernedparties to the reference in the event of the waters of theCauvery falling short of the allocated quantum or beingsurplus to the same?”F

35. Subsequent thereto, evidence was recorded. However, priorto the arguments, the issues, for the purpose of convenience, wereregrouped finally as hereunder:-

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

d)Breach of agreements andAConsequences8, 33, 40 to 43e)Constitutional and legal1 to 7,11 & 19validity and enforceability2.Availability of water –Bsurface flows, additional/ 18, 20 to 22, 25,alternative resources 27, 29, 31 & 473.Equitable apportionment and 26, 31, 34,37,related subjects: 38, 47 to 50i)Cropping patternCii)Trans-basin diversioniii)Relevant date of apportionmentiv)Relevance of projects completedor otherwise.”

36. Reverting to the sequence of events, the Central Governmentfinally, to give effect to the interim order dated 25.06.1991 passed by theTribunal, by notification dated 11.08.1998, framed scheme titled “TheCauvery Water (Implementation of the Interim Order of 1991 and allsubsequent Related Orders of the Tribunal) Scheme, 1998 which, amongstothers, provided for the constitution of the Cauvery River Authority,delineated its role, powers and functions.

DEF

37. The Cauvery River Authority (Conduct of Business) Rules,1998 were also framed and given effect to from 14.07.2000 in order toregulate the conduct of business of the Cauvery River Authority asprovided in Clause 3(2) of the Cauvery Water (Implementation of theInterim Order of 1991 and all subsequent Related Orders of the Tribunal).

G. The genesis of the controversy

38. Having stated the issues framed before the Tribunal, we wouldhave proceeded to deal with the primary legal issues. However, it isrequisite to state the genesis of the reference to the Tribunal. Havingnarrated the facts to this extent, we think it appropriate to go to thenarration of events which have been graphically exposited before us. Itgoes back to the year 1799. We do not intend to refer to the unnecessaryfacets except those which had been expounded to espouse the legalaspect. The first agreement between the Madras Presidency and theState of Mysore was entered into in the year 1892. Prior to entering into

Athe said agreement, there was correspondence between the BritishResident in Mysore and the Government of Madras. It is worthy to notehere that after the defeat of Tipu Sultan by the British, the Wadiyars,Rulers of the State of Mysore, were decored with the crown underSubsidiary Alliance Treaty in 1799. The State of Mysore undertookcertain works in its territory pertaining to restoration of river which wasBprotested by the Collector of Tanjore in the Madras Presidency. Thecorrespondence continued which is not necessary to be referred to. Inthe year 1881, the Viceroy and the Governor General of India, by anInstrument of Transfer 1881, restored the administration of the PrincelyState of Mysore to another scion of the Wadiyar family by signing theC“Sanad” described as “Instrument of Transfer”. Be it stated here, theState of Karnataka asserts that it was not treaty but “Sanad” as isreflected from the communication made by the British Foreign Secretaryin his dispatch of 1874. The relevant part reads as follows:-

“He is in reality the recipient of favours - the person who benefitsDby the avowedly liberal policy of Government - and it seems tome to be in every way more becoming that the Government shouldattach its own conditions to its gift, and that these should be setforth in Sanad or patent to be granted by Government to theMaharaja.”

E39. As contended by the State of Karnataka, the “Instrument ofTransfer” of 1881 placed the Maharaja in possession of the territories ofMysore and in the administration thereof, and declared that he would beentitled to hold possession thereof and administer them only so long ashe fulfilled the conditions prescribed in the Instrument of Transfer.Emphasis has been laid on paragraphs 22 and 23 of the said instrument.FAfter the year 1881, the British Government of Madras Presidency raisedobjections as regards the fact that there was continued implementationof the schemes for restoration of tanks in Mysore by stating that thePresidency of Madras had right to uninterrupted natural flow in theriver. On 13[th] June, 1889, the British Resident in Mysore thought itGappropriate to remind the Dewan of Mysore that the British Residentcould not accept the Dewan’s stand and that Mysore had the right toutilize to the fullest extent the natural water forces flowing through itsterritory. The relevant part of the letter reads thus:-

“In the first place international law is not applicable to feudatoryHState like Mysore in its dealings with the paramount power. Even

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

if it were so, international law would not give Mysore the rightclaimed. Its position with reference to Madras territory is somethingsimilar to that of Switzerland ... The principle which should betaken as your guide in this important question is that no schemefor stopping the flow of water from Mysore into Madras territorywill be permitted if it can be shown to be detrimental to the interestsof the latter.”

40. On 20.11.1889, the British Government of Madras Presidencyissued the following order:-

“The Mysore Government cannot claim to improve its irrigationworks by impounding or diverting the supply of streams whichfeed works in British territory and to the water of which the BritishGovernment has acquired prescriptive right.”

41. As the factual matrix would unroll, on 10.05.1890, conferencewas held at Ooty where the Princely State of Mysore put forward itsclaim for the restoration of irrigation works which had been inauguratedduring the British Government Administration in Mysore (1831-1881),but the claim was rejected by the then British Resident who formallyexpressed the opinion that the assertion of unlimited rights of Mysorewas extreme and untenable. The minutes, among other things, recordedthus:-

“... After some argument the Diwan stated his position as follows:...Madras rights extend only to the supply which has been actuallyturned to account for irrigation...”

“Mr. Stokes said that ...He refused to admit that the Madras rightsto the flow in the rivers was limited to the amount actually turnedto account for irrigation, and contended that Madras is entitled byprescription to the whole flow allowed to pass the frontier, atwhich point Mysore loses all right or interest in it...”

42. As the time passed, the Government of India, on 21[st] August,1891, clarified in publication in the Official Gazette of India No. 1700/E the relationship between the Government of India as represented bythe Queen Empress of India on the one hand and the “native States” inIndia on the other. It read as follows:-

“The principles of International Law have no bearing upon therelations between the Government of India as representing the

Queen Empress on the one hand, and the native States under thesuzerainty of her Majesty on the other. The paramount supremacyof the former, presupposes and implies the subordination of thelatter.”

[emphasis is supplied]

43. On 21.01.1892, the order was passed by the BritishGovernment of Madras directing that the consent of Madras Governmentshould be obtained before the new reservoir is constructed within theMysore State and in the event of disagreement between the twoGovernments, the matter has to be settled by arbitration.

C44. In view of the above, the agreement was entered into betweenthe Madras Government and State of Mysore on 18.02.1892. Clause 1defines New Irrigation Reservoirs. Clause 3 defines Repair of IrrigationReservoirs. Clause 4 states that any increase of capacity other thanwhat falls under “Repair of Irrigation Reservoirs” as defined shall beregarded as “New Irrigation Reservoir”. Clauses 2, 3 and 5 areDreproduced below:-

“II. The Mysore Government, shall not, without the previousconsent of the Madras Government, or before decision underrule 4 below, build (a) any “New Irrigation Reservoirs” acrossany part of the fifteen main rivers named in the appended ScheduleA; or across any stream named in Schedule below the pointspecified in Column 5 of the said Schedule B, or in any drainagearea specified in the said Schedule B, or (b) any “new anaicut”across the streams of Schedule A, Nos. 4 to 9 and 14 and 15, oracross any of the streams of Schedule B, or across the followingstreams of Schedule A, lower than the points specified hereunder:

Across 1. Tungabhadra – lower than the road crossing at Honhalli,Across 10. Cauvery – lower than the Ramaswami anaicut, andAcross 13. Kabani – lower than the Rampur anaicut.

GIII. When the Mysore Government desires to construct any “NewIrrigation Reservoir” or any new anaicut the previous consent ofthe Madras Government under the last preceding rule, then fullinformation regarding the proposed work shall be forwarded tothe Madras Government and the consent of that Government shallbe obtained previous to the actual commencement of work. TheHMadras Government shall be bound not to refuse such consent

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

except for the protection of prescriptive right already acquiredand actually existing, the existence, extent and nature of suchright and the mode of exercising it being in every case determinedin accordance with the law on the subject of prescriptive right touse of water and in accordance with what is fair and reasonableunder all the circumstances of each individual case.

V. The consent of the Madras Government is given to newirrigation reservoirs specified in the appended Schedule C, withthe exception of the Srinivasasagara new reservoir across thePennar, the Ramasamudram new reservoir across the Chitravatiand the Venkatesasagara new reservoir across Papaghni. Should,owing to the omission of the Mysore Government to make ormaintain these works in reasonable adequate standard of safety,irrigation works in Madras, themselves in condition of reasonablyadequate safety, be damaged, the Mysore government shall payto the Madras government reasonable compensation for suchdamage.

As regards the three new reservoirs excepted above theadmissibility of any compensation from Mysore to Madras onaccount of loss accruing to Madras irrigation works fromdiminution of supply of water caused by the construction of thesaid works, will be referred to the Government of India whosedecision will be accepted as final and should such compensationdecided to be admissible, the decision of the Government of Indiaas to the amount thereof will be accepted, after submission tothem of the claims of Madras which would be preferred in fulldetail within period of five years after the completion of saidworks.”

45. As stated in Clause 2, there are two Schedules, namely,Schedule and Schedule which do not require any reference. Wemay note here that on 18.02.1924, another agreement was entered. Theprefatory note to the said agreement contains reference to the 1892agreement, Clause 2 refers to Clause 3 of the 1892 agreement and certaindisputes that had arisen between the two States and the reference toarbitration and the award in the year 1914, rectification of the award bythe Government of India and the decision in appeal with the Secretaryof State for India who had reopened the question. It is necessary tostate what had been mentioned in the said reopening of the question:-

“6. Whereas thereupon the Mysore Government and the MadrasGovernment with view to an amicable settlement of the disputeentered into negotiations with each other; and

7. Whereas as the result of such negotiations, certain Rules ofRegulation of the Krishnarajasagara reservoir were framed andBagreed to by the Chief Engineers of the Mysore and MadrasGovernments on the 26[th] day of July of the year 1921, such Rulesof Regulation forming Annexure I to this agreement; and

8. Whereas, thereafter, the technical officers of the twoGovernments have met in conference and examined the questionof extension of irrigation in their respective territories with viewto reaching an amicable arrangement; and

9. Whereas as the result of such examination and conference bythe technical officers of the two Governments, certain points withrespect to such extension were agreed to respectively by the ChiefEngineer for Irrigation, Madras, and the Special Officer,Krishnarajasagara Works, at Bangalore, on the 14[th] day ofSeptember 1923, such points forming Annexure III to thisagreement.”

46. In the said backdrop, the Mysore Government and the MadrasEGovernment entered into the 1924 agreement. We think it appropriate toreproduce the entire part of the said agreement as that is the fulcrum ofthe stand of the State of Tamil Nadu:-

“(i) The Mysore Government shall be entitled .to construct aridthe Madras Government do hereby assent under clause III of the1892 agreement to the Mysore Government constructing damand reservoir across and on the river Cauvery at Kannambadi,now known a6 the Krishnarajasagara, such dam and reservoir tobe of storage capacity of not higher than 112 feet above the sillof the under-sluices now in existence corresponding to 124 feetabove bed of the river before construction of the dam, and to beof the effective capacity of 44,827 million cubic feet, measuredfrom the 6ill of the irrigation sluices constructed at 60 feet levelabove the bed of the river up to the maximum height of 124 feetabove the bed of the river; the level of the bed of the river beforethe construction of the reservoir being taken as 12 feet below thesill level of the existing under-sluices; and such dam and reservoir

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

to be in all respects as described in schedule forming Annexure IIto this agreement.

(ii) The Mysore Government on their part hereby agree to regulatethe discharge through and from the said reservoir strictly inaccordance with the Rules of Regulation set forth in the Annexure I,which Rules of Regulation shall be and form part of this agreement.

(iii) The Mysore Government hereby agree to furnish to the MadrasGovernment within two years from the date of the presentagreement di-mensioned plans of anicuts and sluices or open headsat the off-takes of all existing irrigation channels having their sourcein the rivers Cauvery, Lakshmanathirtha and Hemavathi, showingthereon in distinctive colour all alterations that have been madesubsequent to the year 1910, and further to furnish maps similarlyshowing the location of the areas irrigated by the said channelsprior to or in the year 1910.

(iv) The Mysore Government on their part shall be at liberty tocarry out future extensions of irrigation in Mysore under theCauvery and its tributaries to an extent now fixed at 110,000 acres.This extent of new irrigation of 110,000 acres shall be in additionto and irrespective of the extent of irrigation permissible underthe Rules of Regulation forming Annexure I to this agreement,viz, 1,26,000 acres plus the extension permissible under each ofthe existing channels to the extent of one-third of the area actuallyirrigated under such channel in or prior to 1910.

(v) The Madras Government on their part agree to limit the newarea of irrigation under their Cauvery Metur project to 301,000acres, and the capacity of the new reservoir at Metur, above thelowest irrigation sluice to ninety-three thousand five hundred millioncubic feet.

Provided that, should scouring sluices but constructed in the damat lower level than the irrigation sluice, the dates on which suchscouring sluices are opened shall be communicated to the MysoreGovernment.

(vi) The Mysore Government and the Madras Government agree,with reference to the provisions of clauses (iv) and (v) preceding,that each Gov-ernment shall arrange to supply the other as soonafter the close of each official or calendar year, as may be

convenient, with returns of the areas newly brought underirrigation, and with the average monthly discharges at the main canalheads, as soon after the close of each month as may be convenient.

(vii) The Mysore Government on their part agree that extensionsof irrigation in Mysore as specified in clause (iv) above shall becarried out only by means of reservoirs constructed on the Cauveryand its tributaries mentioned in Schedule of the 1892 agreement.Such reservoirs may be of an effective capacity of 45,000 millioncubic feet, in the aggregate and the impounding therein shall be soregulated as not to make any material diminution in suppliesconnoted by the gauges accepted in the Rules of Regulation forthe Krishnarajasagra forming Annexure I to this agreement, itbeing understood that the rules for working such reservoirs shallbe so framed as to reduce to within 5 percent any loss during anyimpounding period, by the adoption of suitable proportion factors,impounding formula or such other means as may be settled at thetime.

(viii) The Mysore Government further agree that full particularsand details of such reservoir schemes, and of the impoundingtherein, shall be furnished to the Madras Government to enablethem to satisfy themselves that the conditions in clause (vii) abovewill be fulfilled. Should there arise any difference of opinionbetween the Madras and Mysore Governments as to whether thesaid conditions are fulfilled in regard to any such scheme orschemes, both the Madras and Mysore Governments agree thatsuch difference shall be settled in the manner provided in clause(xv) below.

(ix) The Mysore Government and the Madras Government agreethat the reserve storage for power generation purposes nowprovided in the Kriahnaraja sagra may be utilized by the MysoreGovernment according to their convenience from any otherreservoir hereafter to be constructed, and the storage thus releasedfrom the Krishnarajasagra may be utilized for new irrigation withinthe extent of 110,000 acres provided for in clause(iv) above.

(x) Should the Mysore government so decide to release the reservestorage for power generation purposes from the Krishnarajasagra,the working tables for the new reservoir from which the powerwater will then be utilized shall be framed “after taking into

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

consideration the conditions specified in clause (vii) above andthe altered conditions of irrigation under the Krishnarajasagara.

(xi) The Mysore Government and the Madras Government furtheragree that the limitations and arrangements embodied in clauses(iv) to (viii) supra shall at the expiry of fifty years from the date ofthe execution of these presents, be open to reconsideration in thelight of the experience gained and of an examination of thepossibilities of the further extension of irrigation within the territoriesof the respective Governments and to such modifications andadditions as may be mutually agreed upon as the result of suchreconsideration.

(xii) The Madras Government and the Mysore Government furtheragree that the limits of extension of irrigation specified in clauses(iv) and (v) above shall not preclude extensions of irrigationeffected solely by improvement of duty, without any increase ofthe quantity of water used.

(xiii) Nothing herein agreed to or contained shall be deemed toqualify or limit in any manner the operation of the 1892 agreementin regard to matters other than those to which this agreementrelates or to affect the rights of the Mysore Government toconstruct new irrigation works on the tributaries o the Cauvery inMysore not included in Schedule of the 1892 agreement

(xiv) The Madras Government shall be at liberty to construct newirrigation works on the tributaries of the Cauvery in Madras and,should the Madras Government construct; on the Bhavani,Amaravati or Noyil rivers in Madras, any new storage reservoir,the Mysore Government shall be at liberty to construct, as anoffset, storage reservoir in addition to those referred to inclause (vii) of this agreement on one of the tributaries of theCauvery in Mysore, of capacity not exceeding 60 per cent ofthe new reservoir in Madras.

Provided that the impounding in such reservoirs shall not diminishor affect in any way the supplies to which the Madras Governmentand the Mysore Government respectively are entitled under thisagreement, or the division of surplus water which, it is anticipated,will be available for division on the termination of this agreementas provided in clause (xi).

A(xv) The Madras Government and the Mysore Government herebyagree that, if at any time there should arise any dispute betweenthe Madras Government and the Mysore Government touchingthe interpretation or op-eration or carrying out of this agreement,such dispute shall be referred for settlement to arbitration, or ifthe parties so agree shall be submitted to the Government of India.”

47. As is noticeable, Clause 10(ii) provided that the MysoreGovernment had agreed to regulate the discharge through and from theconcerned reservoir strictly in accordance with the Rules of Regulationset forth in Annexure I, which Rules of Regulation shall be and formpart of that agreement. The relevant part of Annexure I is reproducedCbelow:-

“7. The minimum flow of the Cauvery that must be ensured at theupper anicut before any impounding is made in theKrishnarajasagara, as connoted by the readings of the Cauverydam north gauge, shall be as follows:-

8. The discharges connoted by the gauge readings set forth inrule 7 shall, in the case of regulation during the irrigation season(vide rule 9) of 1921, be deducted from the average dischargecurve derived from the joint gaugings of the Cauvery at theCauvery dam made in the four years ending 1920. The saiddischarges shall be revised, if necessary, after completion of thejoint gaugings of 1921 and shall be used for the purpose ofregulation for the five years ending 1926. The said dischargesshall be finally revised and adopted for all subsequent regulation,

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

at the conclusion of the joint gauging of the year 1926, on thebasis of the joint gaugings of the ten years ending 1926.

9. The south-west monsoon shall, for the purpose of these rulesbe considered to extend from the 1st June to the 30th September,both days inclusive, and the north-east monsoon from the1stOctober to the 31st January, both days inclusive. The irrigationseason shall be taken to extend from the 1st June to the 31stJanuary, both days inclusive. All dates in this rule shall havereference to the Upper Anicut.”

48. Annexure III of the agreement pertains to the extent of irrigationof Mysore and Madras. The relevant part is as follows:-

“2.The extent of future extension of irrigation in Mysore underthe Cauvery and its tributaries mentioned in Schedule of the1892 agreement shall be fixed at 110,000 acres, and Madras shallhave their Cauvery-Mettur project as revised in 1921 with theirnew area of irrigation fixed at 301,000 acres, …”

49. It is worthy to note here that another agreement was enteredinto between both the governments in the year 1929 to clarify Rules 7and 8 of the Rules of Regulation pertaining to the Krishna Raja Sagarareservoir which is as follows:-

“AGREEMENT

WHEREAS on the 18th February 1924 an agreement betweenthe Governments of Mysore and Madras was signed and whereasby clause 10(2) of the said agreement the Mysore Governmentagreed to regulate the discharge through and from theKrishnarajasagara reservoir strictly in accordance with the Rulesof Regulation being Annexure I to the said agreement;

and

WHEREAS disputes had arisen between the two Governmentsin regard to the interpretation, operation and carrying out of rules7 and 8 of the said Rules and Regulation;And

WHEREAS both the Governments have submitted the matters indispute to the Arbitration of the Honourable Mr. Justice Pagewith Messrs. Howley and Forbes as assessors.

ANow the two Governments have agreed in lieu of an award inthat behalf to adopt finally for all Regulation subsequent to 1[st] July1929, the following discharges for the respective months in placeof the averages referred to in clause 8 of Annexure I:-

and in rule 10, defining the impounding formula, will denote thesaid above mentioned discharges.

DTHIS agreement is without prejudice to the other questionsoutstanding between the parties in regard to the clauses of theagreement other than clauses 7 and 8 of the Rules of Regulation.

17th June 1929.

(Signed) R. RANGA RAO) (Signed) A.G. LEACH,EOfficiating Chief Secretary Secretary to the Government

to the Govt. of Mysore Public Works and Labor

Department, Madras.”

50. In 1934, new reservoir at Mettur which was constructed byMadras became operational pursuant to Clause 10(v) of the agreementFof 1924 and the Madras Government had agreed to limit “the new areasof irrigation under their Cauvery Mettur project (Project Report of 1921)to 301,000 acres” and the capacity of “the new reservoir at Mettur” to93.5 TMC. In the said order, the State of Madras started planning ofNhawan reservoir under Clause 10 (xiv) of the agreement of 1924 and,Gas result, Mysore became entitled to construct reservoir of 60% ofthe capacity planned by Madras and, accordingly, Mysore proposed KabiniReservoir as an offset reservoir under Clause 10(xiv) of the saidagreement. In this regard, the finding of the Tribunal is as follows:-

“Regarding Kabini project, the objection of Madras was that theproposal of Mysore for transfer of half of power storage fromH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Krishnarajasagar to Kabini was not permissible although accordingto the State of Karnataka it was permissible under Clasue 10(ix)of the agreement. Apart from objection regarding the transfer ofpower storage with regard to Kabini other objections had alsobeen raised. From the notes of discussion between the thenengineers of the two States on 11[th] and 12[th] March, 1940 (TamilNadu Vo,VII/Exh.445 page 148) it appears that the two ChiefEngineers of Madras and Mysroe Governments finally agreed onthe impounding in reservoir to be built on Kabini during the criticalmonths from June to January, applying the Rule 10 of Rules ofRegulation of KRS (Annexure I to the Agreement). The notes ofdiscussions and agreements between the two Chief Engineerswere duly signed by them, and no further action was taken by theState of Madras. Any agreement between the two chief engineerswas subject to the approval of the State of Madras and theGovernment of Mysore. Then by letter dated 21[st] May. 1945 theSecretary to Maharaja of Mysore made request to the Residentin Mysore to obtain the concurrence of the Madras Government.There was no reply from Madras Government although thecontents of the aforesaid letter had been communicated to theGovernment of Madras. No explanation was furnished as to whywhen the Chief Engineers of two States had fixed and settled theimpounding formula in terms of the agreement of 1924. for thereservoir on Kabini. the State of Madras was not communicatingits approval. Because of that the project on Kabini as planned byMysore in 1933 under clause 10(iv) of the agreement remainedunimplemented.”

51. In the year 1935, the British Parliament enacted theGovernment of India Act, 1935 (for short, “the 1935 Act”). In the year1947, the Indian Independence Act, 1947 (for brevity, “the 1947 Act”)came into force. The Maharaja of Mysore had executed an agreement“Instrument of Accession” initially only on two subjects, namely, defenceand external affairs and communications which was accepted by theGovernor General of India on 16.08.1947. Thereafter, White Paperwas released on Indian States and “Standstill Agreement” was enteredinto between the Dominion of India and the Maharaja of Mysore. Asupplementary “Instrument of Accession” was executed on 01.06.1949for all matters enumerated in List I and List II of the Seventh Scheduleof the 1935 Act which was contained in the said supplementary

Aagreement. After coming into force of the Constitution of India, the1947 Act stood repealed by reason of the provisions contained in Article395 of the Constitution of India and the erstwhile province of Madrasunder the 1935 Act became Part State of Madras with effect from26.01.1950. On 01.11.1956, the new State of Mysore was formed bythe States Reorganisation Act, 1956 (for short, ‘the Reorganisation Act”).B

52. In August 1972, the State of Tamil Nadu filed suit OS No. 1of 1971 against the State of Mysore which was permitted to be withdrawnwith liberty to file fresh suit if necessary. On 29.05.1972, the ChiefMinisters of Mysore, Tamil Nadu and Kerala discussed with the UnionMinister for Irrigation and Deputy Minister. The relevant part of theCdiscussion reads as follows:-

“Note on discussions regarding Cauvery held at New Delhi on29[th ]May, 1972”

“Discussions were held on 29[th] May, 1972 at New Delhi betweenDthe Chief Ministers of Mysore, Tamil Nadu and Kerala. UnionMinister for Irrigation and Power and Deputy Ministers werepresent. The Chief Ministers were assisted by Ministers ofrespective States, those present were as follows:

I. Tamil Nadu:

E1. Thiru M. Karunanidhi, Chief Minister

2. Thiru S. Madhavan, Minister for Law

3. Thiru SJ. Sadiq Pasha, Minister for Public Works

II.Mysore:

1. Shri D. Devaraj Urs, Chief Minister

2. Shri M.N. Nanja Gouda, Minister for State for Major Irrigation

III. Kerala:

1. Shri C. Achutha Menon, Chief Minister

2. Shri T.K. Divakaran, Minister for Public Works

Union Minister for Irrigation and Power stated that river problemsare best settled through negotiations and this was the course theCentral Government was adopting for the last few years in settlingthe differ rences on the use® of waters of Cauvery. Earlier, it

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

was aimed to arrive at an interim agreement to be valid till 1974.when the earlier agreement of 1924 would have come up forreview after 50 years, as provided in the agreement. Now, as1974 is near, this attempt has been given up in favour of finding anoverall approach to solve the problem amicably amongst theseveral States. (Emphasis supplied) The discussions amongst theChief Ministers revealed general consensus on the three followingpoints as in para 2:

2.1 serious attempt should be made to resolve by negotiationsthe Cauvery dispute between eh States as eariy as possible.

2.2. The Centre may appoint Fact Finding Committeeconsisting of Engineers, retired Judges and if necessary,Agricultural Experts to collect all the connected data pertainingto Cauvery waters, its utilization and irrigation practices aswell as projects both existing, under construction and proposedin the Cauvery basin. The Committee will examine adequacyof the present supplies or excessive use of water for irrigationpurposes. The Committee is only to collect the data and notmake any recommendations. The Committee may be asked tosubmit its report in three months time.

2.3 Making use of the data, discussions will be held betweenthe Chief Ministers of the three States to arrive at an agreedallocation of waters for the respective States.

3. Union Government will assist in arriving at such settlementin six months, and in the meanwhile, no State will take anysteps to make the solution of the problem difficult either byimpounding or by utilizing water of Cauvery beyond what it isat present.”

53. Pursuant to the above, the Cauvery Fact Finding Committee(CFFC) was set up by the Government of India. The terms of thereference to the CFFC were as follows:-

“(i) To collect all the connected data pertaining to Cauvery waters;its utilization at different points of time: irrigation practices; aswell as projects both existing, under construction, and proposed inthe Cauvery basin.

(ii) To examine adequacy of the present supplies or excessive useof water for irrigation purposes.

(iii) To collect data relevant to the use of water in different Stateslike the physical and other features; cultivated areas; existing andproposed uses for domestic and industrial water supply; hydro-electric power generation, navigation, salinity control and othernon-irrigational purposes.

(iv) Any other connected matters.”

54. The CFFC submitted report on 15.12.1972. The relevantpart of the report is reproduced below:-

“As desired in the above resolution, we hereby submit our report.

The data was received from Kerala on 21[st] September, 1972 fromMysore on 19[th] October, 1972 and Tamil Nadu on 24[th] October,1972. Both Mysore and Tamil Nadu supplemented their data duringtheir discussions with the Committee at New Delhi from 7[th] to14[th] November, 1972. Some clarifications and elucidations hadbeen asked for from the States during the discussions and againduring the visit of the Committee to Mysore and Tamil Nadu from6[th] to 8[th] December, 1972. The replies from the State Governmentshave not yet been received. The data supplied by the three Statesruns into 20 volumes. In addition, they have left with the Committeeproject reports for their study which also run into 36 volumes. Asthis voluminous data requires very careful examination and scrutiny,the Committee “had asked for further extension of one monthfrom 15[th ]December, 1972 to 15[th] January, 1973. But the samehas not been agreed to.

In view of the above, the Committee had no alternative but tosubmit its report on 15[th] December, 1972, though it has not beenpossible to do full justice to this important work.

In accordance with the note on discussions regarding Cauveryheld at New Delhi on 29[th] May, 1972, between the Union Ministerfor Irrigation and Power and the Chief Ministers of Kerala, Mysoreand Tamil Nadu {a copy of which had been supplied to theCommittee) “the Committee is only to collect the data and notmake any recommendations”. As such, the Committee hasrefrained from making any recommendations.”

55. On 14.08.1973, an additional report was submitted. In October,1973, the States of Mysore, Tamil Nadu and Kerala desired the

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Government of India to make study on the scope of economy in theuse of water and in pursuance of the same, the C.C. Patel Committeewas constituted. The Committee made various recommendations andan estimate of irrigation water requirement in each State. On 12.08.1976,a Committee with Mr. E.C. Saldhana, Member, Central WaterCommission, as Chairman was set up by the Central Government withthe following terms of reference:-

“(i) To assess the requirement of water of the existing areas underirrigation as well as new areas which are proposed to be broughtunder irrigation taking into consideration the availability of waterfrom the rainfall within the respective command areas:

(ii) To assess the availability of water for use in normal yeartaking into consideration integrated operation of the reservoirsand the demand pattern of releases:

(iii) To recommend regulation of supplies in normal or good yearsfor protecting the existing ayacuts as well as for the new areas,taking into consideration the savings to be effected progressivelyin Tamil Nadu including Karaikal region of Pondicherry andKarnataka.”

56. In March 1977, draft report was submitted to the Governmentof India. As is manifest, discussions, deliberations and negotiations wenton between the two States and eventually, as stated earlier, on 06.07.1986,the State of Tamil Nadu lodged complaint under the 1956 Act with theGovernment of India raising water dispute thereby requesting foradjudication of the water dispute by tribunal.

57. We have already noted that the State of Karnataka had broughtout an ordinance and how the Court has dealt with the same.

58. Having noted the aforesaid and observing what the ConstitutionBench had stated, we may proceed to deal with the contentionscanvassed on behalf of both the States with regard to the validity of theagreements.

H. Doctrine of Paramountcy and its extinction on coming intoforce of the Indian Independence Act, 1947

59. Mr. Nariman, learned senior counsel, has attacked both theagreements on two counts, namely, (i) the Maharaja of Mysore was notin position to enter into an agreement on equal terms with the Madras

AGovernment as the communications would show, and further, (ii) themanner in which the agreements were reached, the status conferred bythe British Government and the Maharaja, the orders passed by theBritish Government from time to time and eventually, the order of theSecretary of State for India who upheld the appeal of the BritishGovernment of Madras against the Griffin Award clearly show theBsubservience of the Maharaja of Mysore to the paramount power of theBritish Crown. He has drawn our attention to passage of the GriffinAward which is as under:-

“The Secretary of State holds that the Government of Madraswere within their rights in appealing to him, firstly because theCprocedure prescribed in rule IV of the agreement of1892 wasvaried in the Arbitration Proceedings and, secondly, because, whilethe Agreement of1892 was and is valid as between theGovernments of Madras and Mysore, this does not relieve him(i.e. the Secretary of State) of his genera! responsibility forDintervening in any matter in which it seems to him that the publicinterest is threatened with injury, even if the possible injury wouldbe consequent on action taken under an award given, or purportingto be given, under rule IV”.

60. Relying on the same, it is propounded by Mr. Nariman that aEbinding arbitration award between the Indian State and Province inBritish Government was not regarded as binding by the Secretary ofState and he could refuse to recognize it and from the said, the Doctrineof Paramountcy is manifest and that alone should be treated as sufficientto treat the agreements as absolutely unfair, arbitrary and unreasonable.Learned senior counsel would contend that when in such situation theFagreement had been entered into, the same cannot be regarded as validin law after India got independence and should be declared as null andvoid under the Constitution of India that came into force on 26[th] January,1950. It is urged by him that having regard to the regime of paramountcyand taking note of the fact that the Crown had the paramount power andGexercised the same in favour of the Madras Government ignoringwhatever objection could be raised then by the Dewan of Maharaja ofMysore, the agreement cannot be constituted as valid and acceptable inlaw. The argument on the factual score by Mr. Nariman has been seriouslycontested by Mr. Rakesh Dwivedi, learned senior counsel appearing forthe State of Tamil Nadu, urging that the agreements were arrived atH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

after several correspondences and proper consideration. He has alsodrawn our attention to the letter dated 12.02.1924 from the Dewan ofMysore to the Secretary of the Maharaja. The said letter reads thus:-

“I have discussed the whole matter this morning with mycolleagues and they entirely approve of my recommendations. Ifeel relieved and proud that after four years of strenuous fight. Iam able to put up for His Highness approval settlement which iseminently satisfactory and favourable to Mysore and its futuregenerations.

PS. - Sir Visvesvaraya has gone away to Bhadravathi, so, I cannotspeak to him. I have already discussed all the main points withhim week ago and he was fully satisfied that we got all wecould and had very satisfactory settlement.”

61. Referring to the language employed in the said letter, it issubmitted by Mr. Nariman that the same does not really indicate anythingthat can be considered as consent or acceptance but instead reflectssome kind of resignation. He has emphasized on the words “that we gotall we could” to highlight that it is reflective of compulsive surrenderhaving no choice and accepting whatsoever has been given in the absenceof any option. He would further submit that the agreement of 1924 onlypermitted the State of Mysore to undertake irrigation in the PrincelyState on certain terms. It was because of the unilateral imposition bythe paramount power.

62. In this context, it is also necessary to refer to what Mr. Dwivedi,learned senior counsel, has drawn our attention to from the letter of theDewan of Mysore to the Maharaja of Mysore. The said part reads asfollows:-

“I am sending tonight with this letter complete comprehensiveagreement embracing all the points of dispute, bringing forwardevery clause as agreed to up to date during the past 4years ofdiscussion and signed by the technical officers of the twoGovernments. It will be seen that we have given concession toMadras in regard to the Bhavani Project and have got, in return, aquid pro quo that we shall be entitled to have an additional reservoir.The other points are already settled. The whole case has causedme, during the past few days, considerable anxiety and I honestlynow think that with the concession now obtained and with the

Afinality in regard to the krishnarajasagara, taken together with thepossibility of an additional development of 110,000 acres duringthe next 50 years, Mysore interests are fully safeguarded eventhough Mysore now agrees to the Metur project slightly enlarged.We have made very still fight over this question, and as Madrashave climbed their other contentions and are prepared to sign theBagreement as now submitted, we may, with good grace, yield onthis one point so far as only the additional 1,500 m.c. ft. extrastorage is concerned, which is negligible and conclude the disputeonce for all.

I have discussed the whole matter this morning with myCcolleagues and they entirely approve of my recommendations. Ifeel relieved and proud that after four years of strenuous fight, Iam able to put up for His Highness approval settlement which iseminently satisfactory and favourable to Mysore and its futuregenerations.”D

63. Elaborating the stand of paramountcy, this Court has beenapprised of certain factual aspects. In 1929, certain disputes arosebetween the two Governments pertaining to the interpretation, operationand carrying out of Rules 7 and 8 of the Rules of Regulation of 1921(Annexure to the Agreement of 1924) and under Clause 10(ii), the mattersEin dispute were referred to arbitration of Mr. Justice Page of the CalcuttaHigh Court and during the arbitration, both the Governments agreed toadopt the same as final as regards the discharges at the upper Anicutand certain further aspects. In 1934, new reservoir at Mettur whichwas constructed by Madras became operational pursuant to clause 10(v)of the Agreement of 1924 and the Madras Government agreed to limitFthe new areas of irrigation under the Cauvery-Mettur project to 301,000acres and the capacity of the new reservoir at Mettur to 93.5 TMC. Itis the stand of the State of Karnataka that when the Mettur Dam becameoperational with effect from 1934, the natural flow for upper Anicutwhich was at considerable distance below Mettur could not beGmaintained at the stipulated six and half to seven and half ft. equal to29800 cusecs to 40100 cusecs since the water of the upstream flowedinto Mettur reservoir. Despite the same, as urged by Mr. Nariman, clause10(ii) of the Agreement of 1924 required strict observance of Rule 7 ofthe Rules of Regulation and was not altered and it was so because ofthe paramount power exercised by the authority and it did not desire theH

anomaly to be corrected. Various other aspects have been stressed uponto highlight that the State of Mysore had no authority to bargain and itwas compelled to succumb to the paramount exercise of power. We areat present not referring to the specific reservoirs as that shall be dealtwith at later stage.

64. The legal validity of the agreement of the year 1924 waschallenged before the Tribunal and it has addressed whether theagreement has become constitutionally invalid. Adverting to the same,the Tribunal has opined that when the 1924 Agreement was enteredinto, the Government of India Act, 1919 was in force. Section 30 of thesaid Act enabled the Governor General in Council to make any contractfor the purpose of that Act. The Government of India Act, 1919 wasrepealed by the Government of India Act, 1935.

65. On behalf of the State of Tamil Nadu, reliance was placed onSection 177 of the Government of India Act, 1935 to sustain the contentionthat the 1924 Agreement continued to be in force and when Britishparamountcy lapsed on 15[th] August, 1947, the agreement did not lapseautomatically due to the proviso to Section 7(1) of the IndianIndependence Act, 1947. It is further put forth that the agreementcontinued to be in force in the absence of denouncement of thoseagreements by either party or by superseding them by any freshagreement. That apart, the State of Mysore which was Princely Stateat the time of its accession to the Dominion of India executed both the“Instruments of Accession” and the “Standstill Agreement” under whichthe agreement continued between the State of Madras and the thenState of Mysore. After the Constitution came into force, the liabilitiesand obligations arising out of the said agreements under Articles 294-Band 295(2) devolved on the two States and after the reorganization ofthe States in November, 1956, the terms of the agreement made earlierare to be treated as binding on the successor State or States under Section87(1) of the Reorganisation Act. The contention of the State of Karnatakabefore the Tribunal was that the Agreement of 1924 is not covered bySection 177 of the Government of India Act, 1935 and as such, it lapsedafter coming into force of the said Act.66. The Tribunal referred to Section 177(1), noted the submissionsof the learned counsel for the parties and held thus:-

“7. On plain reading of Section 177(1) of the Government ofIndia Act 1935 aforesaid it is apparent that it conceived contract

to be made by or on behalf of the Secretary of State in Council.On the facts furnished on behalf of the State of Karnataka itselfit appears that the Agreement which had been initially signed bythe Dewan of Mysore and Secretary to the Government of 88Madras on 18th February 1924 was also signed by the Maharajaof Mysore as well as the Governor of Madras. It was alsoapproved by the Secretary of State and that approval wascommunicated by telegram dated 18th June 1924. Thereafter, theGovernment of India approved and confirmed the said agreementon 11th July 1924 which is apparent from the note made on thephoto copy of the agreement by the Political Secretary. In thisbackground, it shall be deemed that the said agreement had beenexecuted on behalf of the Secretary of State in Council. Merelybecause in the agreement it had not been mentioned that it wasbeing executed on behalf of the Secretary of State in Council,shall not make the agreement invalid. It is well known that in suchmatters presumption has to be raised that official acts havebeen performed by complying with the requirement of the law.According to us after lapse of about 80 years from the date of theexecution of the agreement it shall be futile attempt to examinethe legal validity of the execution of the agreement of the year1924 which had been acted upon by the then State of Madras andthe Government of Mysore in respect of sharing of the water ofCauvery and its tributaries including in respect of construction ofreservoirs over Cauvery and its tributaries by two States. Pursuantto that agreement KRS was constructed and became functionalin the year 1931 within Mysore and Mettur was constructed byMadras which became functional in the year 1934. The reservoirson tributaries within the States of Mysore/Karnataka and Madras/Tamil Nadu have also been constructed and they are functioning.No dispute was raised at any stage on behalf of the Mysore orKarnataka till 89 the expiry of the period of 50 years in 1974, inrespect of any defect in the execution of the agreement of theyear 1924 or that it was not binding on Mysore/Karnataka.”

67. The submission was structured on the basis of the 1947 Actand the judgment rendered in Dr. Babu Ram Saksena v. State[3]. TheTribunal analyzed the said decision and the views of Patanjali Sastri, J.who delivered his opinion on behalf of M.H. Kania, CJ and himself and

H3 1950 SCR 573 : AIR 1950 SC 155

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

the opinion rendered by B.K. Mukherjee, J. Be it noted, Fazal Ali, J.agreed with both Sastri, J and Mukherjee, J. and opined that the appealdeserved to be dismissed. Mahajan, J. concurred with Mukherjee, J.After noting the facts, the Tribunal observed thus:-

“16. It appears that three remaining Hon’ble Judges Fazl Ali, J,Mahajan,J, and Das,J, agreed with the opinion aforesaid expressedby Hon’ble Justice Mukherjea. The majority of the Judges in theaforesaid Supreme Court case dismissed the appeal taking specialfacts and circumstances of that particular case, i.e. the merger ofthe Tonk State along with several other States and giving rise tothe United State of Rajasthan. In the process of merger Tonk hadlost its identity and had relinquished its life. As such treatypreviously concluded had lapsed.”68. After so stating, the Tribunal distinguished the said decision asthe factual matrix is different. It has been held by the Tribunal that theState of Mysore was ruling State and after accession, it became aGroup State under the Constitution of India and at no stage, there hasbeen any merger of the said State with any other State by which theRuling State of Mysore stood extinguished or relinquished as in the caseof State of Tonk which was the subject matter of controversy in Dr.Babu Ram Saksena (supra). Thereafter, the Tribunal has held:-

“According to us the aforesaid judgment of the Supreme Court isof no help to the State of Karnataka. No other decision or provisionwas brought to our notice in support of the contention that theAgreement of the year 1924 ceased to exist after the IndianIndependence Act 1947 came into force. The result will be that itshall be deemed that the said Agreement of 1924 survived andcontinued even after the coming into force of the IndianIndependence Act 1947 and the Constitution of India.”

69. Mr. Nariman, learned senior counsel, has assiduously andastutely canvassed about the doctrine of paramountcy. For the saidpurpose, he has drawn our attention to Section 7 of the 1947 Act. Thesaid provision reads as follows:-

“7. (1) As from the appointed day(a) His Majesty’s Governmentin the United Kingdom have no responsibility as respects thegovernment of any of the territories which, immediately beforethat day, were included in British India;

(b) the suzerainty of His Majesty over the Indian States lapses,and with it, all treaties and agreements in force at the date of thepassing of this Act between His Majesty and the rulers of IndianStates, all functions exercisable by His Majesty at that date withrespect to Indian States, all obligations of His Majesty existing atthat date towards Indian States or the rulers thereof, and all powers,rights, authority or jurisdiction exercisable by His Majesty at thatdate in or in relation to Indian States by treaty, grant, usage,sufferance or otherwise; and

(c) there lapse also any treaties or agreements in force at thedate of the passing of this Act between His Majesty and anypersons having authority in the tribal areas, any obligations of HisMajesty existing at that date to any such persons or with respectto the tribal areas, and all powers, rights, authority or jurisdictionexercisable at that date by His Majesty in or in relation to thetribal areas by treaty, grant, usage, sufferance or otherwise:

Provided that, notwithstanding anything in paragraph (b) orparagraph (c) of this subsection, effect shall, as nearly as may be,continue to be given to the provisions of any such agreement as istherein referred to which relate to customs, transit andcommunications, -posts and telegraphs, or other like matters, untilthe provisions in question are denounced by the Ruler of the IndianState or person having authority in the tribal areas on the onehand, or by the Dominion or Province or other part thereofconcerned on the other hand, or are superseded by subsequentagreements.

(2) The assent of the Parliament of the United Kingdom is herebygiven to the omission from the Royal Style and Titles of the words“ Indiae Imperator “ and the words “ Emperor of India “ and tothe issue by His Majesty for that purpose of His Royal Proclamationunder the Great Seal of the Realm.”

G70. According to Mr. Nariman, after coming into force of the saidprovision, the agreements lapsed and the finding of the Tribunal thatthey continued because of the “Standstill Agreement” or the constitutionalprovisions as enshrined under Article 295(2) is absolutely erroneous. Inthis context, we may refer to the “Standstill Agreement” which is partof the White Paper on Indian State issued by the Government of India,HMinistry of States. In part 4 of the said White Paper, accession of the

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

States to the Dominion of India is mentioned and it refers to the lapse ofparamountcy. Paragraph 82 deals with “Standstill Agreement”. It readsas follows:-

“Standstill Agreements, the acceptance of which was made bythe Government of India conditional on accession by the Statesconcerned were also entered into between the DominionGovernment and the acceding States. The Standstill Agreements(Appendix IX), provided for the continuance for the time beingof all subsisting agreements and administrative arrangements inmatters of common concern between the States and theDominion of India or any part thereof.”

71. It is submitted by Mr. Nariman that the “Standstill Agreement”dated 09.08.1947 which was actually executed by the Maharaja ofMysore stipulated that nothing in the said agreement could include theexercise of any paramountcy function and, therefore, the “StandstillAgreement” will not cover the State of Mysore. Learned senior counselwould contend that with the coming into force of the Constitution ofIndia on 26.01.1950, the 1947 Act passed by the Parliament stood repealedby reason of the provision of Article 395 of the Constitution and Mysorebecame Part State under the Constitution and the erstwhile provinceof Madras became Part State. According to him, even if the “StandstillAgreement” executed between the Maharaja of Mysore and theDominion of India was operative and existing, it came to an end. Accordingto him, the 1947 Act did not survive beyond the final accession of theState of Mysore to the Union of India and “Standstill Agreement” enteredinto by the Government of India with various Indian States including theprovincial State of Mysore were purely temporary arrangements designedto maintain status quo in respect of administrative matters. He hasseriously criticized the finding of the Tribunal and contended that theTribunal has failed to take proper note of the decision in Dr. Babu RamSaksena (supra). He has commended us to certain passages to bolsterthe argument:-

“The Attorney-General appearing for the Government advancedthree lines of argument in answer to that contention. In the firstplace, the standstill agreement entered into with the various IndianStates were purely temporary arrangements designed to maintainthe status quo ante in respect of certain administrative mattersof common concern pending the accession of those States to the

Dominion of India, and they were superseded by the Instrumentsof Accession executed by the Rulers of those States. Tonk havingacceded to the Dominion on the 16th August, 1947, the standstillagreement relied on by the appellant must be taken to have lapsedas from that date. …..

As we are clearly of opinion that the appellant’s contention mustfail on this last ground, we consider it unnecessary to pronounceon the other points raised by the Attorney General especially asthe issues involved are not purely legal but partake also of apolitical character, and we have not had the views of theGovernments concerned on those points.”

72. We have already referred to the decision in Dr. Babu RamSaksena (supra) and how the Tribunal has dealt with the same. Theemphasis of Mr. Nariman is on the words “partake also of politicalcharacter”. Stress is laid that when an agreement partakes politicalcharacter, the doctrine of paramountcy clause melts into insignificanceDby virtue of Section 7 of the 1947 Act. In this regard, he has placedreliance on Hemchand Devchand v. Azam Sakarlal Chhotamlal[4].The effort of the learned senior counsel is to draw distinction betweencategories of political cases and those which fall in the other categories.The relied upon passages from the said judgment read as follows:-

“The real question is whether in cases like those now beforetheir Lordships the action of the tribunals in Kathiawar, and ofthe Governor in Council on appeal from those tribunals, is properlyto be regarded as judicial or as political. And at this point adistinction arises between the two cases under appeal; becauseFthe first of them has been disposed of as civil, the second as apolitical, case.

x x x x x

The further appeal to the Secretary of State in Council is factof clearer import. In Lord Salisbury’s Despatch of the March23, 1876, the practice of such appeals is dealt with as thing atthat date already fully established, and it continues to the presentday in civil as well as in political cases. This system of appeal tothe Secretary of State affords strong evidence that the intentionof Government is and always has been that the jurisdiction

4 (1905) 33 IA 1 : (1906) ILR 33 Cal 219H

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

exercised in connection with Kathiawar should be political andnot judicial in its character.”

And again:-

“Such cases can only be justly disposed of on principle of equityin the fullest sense of the term, and not in the circumscribedsense, which is familiar to the practice of the High Courts; andsometimes consideration must be given to the political expediencywhich underlies the relation in which the Government stands tothe protected States.’’

73. Placing reliance on the said passages, it is urged by him thatwhen the Secretary of State was dealing with such case, the said casewas regarded as “political” and not “judicial” in character as was laterauthoritatively stated in the letter of the Viceroy of India – that is, LordReading’s letter dated 27.03.1926 to the Nizam of Hyderabad – whichset out the doctrine of paramountcy in classical terms. Elaborating further,it was contended by him that the appeal preferred by the Government ofMadras against the Griffin Award which was in favour of the Maharajaof Mysore was allowed and the Maharaja of Mysore was described asthe head of “Vassal State”, and hence, he was not in position tonegotiate or bargain with the paramount power on equal terms and wascompelled to go for amicable settlement on compulsion. In this regard,inspiration has been drawn from the decision in H. H. MaharajadhirajaMadhav Rao Jivaji Rao Scindia Bahadur of Gwalior and others v.Union of India and another[5]. Shah, J., speaking for the majority,observed:-

“100. In the era before 1947 the term “State” applied to politicalcommunity occupying territory in India of defined boundariesand subject to single Ruler who enjoyed or exercised, asbelonging to him, any of the functions and attributes of internalsovereignty duly recognised by the British Crown. There werein India more than 560 States: forty out of those States had treatyrelations with the Paramount Power: larger number of Stateshad some form of engagements or Sanads, and the remainingenjoyed in one or the other form recognition of their status bythe British Crown. The treaties, engagements and Sanads covereda wide field, and the rights and obligations of the States arising

5 (1971) 1 SCC 85

Aout of those agreements varied from State to State. The rightsthat the British Crown as the Paramount Power exercised inrelation to the States covered authority in matters external aswell as internal. The States had no international personality, theParamount Power had exclusive authority to make peace or war,or to negotiate or communicate with foreign States. TheBParamount Power had the right of intervention in internal affairswhich could be exercised for the benefit of the head of the State,of India as whole, or for giving effect to internationalcommitments.”74. Further, the Court referred to the Cabinet Mission whichCannounced its Plan on May 16, 1946 for the entry of the States into theproposed Union of India and simultaneously declared that theparamountcy of the British Crown could neither be retained nortransferred to the new Government. The Court also took note of theIndian (Provisional Constitution) Order, 1947 which extensively amendedDSections 5 and 6 of the Government of India Act, 1935. The Court dweltupon the inheritance of the paramountcy power of the British Crownand, in that context, held:-

“131. We are unable to agree with the Attorney-General that the“old unidentified concept of paramountcy of the British Crown”was inherited by the Union, by reason of the instruments ofaccession and merger agreements and that “recognition ofRulership was ‘gift of the President’, and not matter of legalright, existing as it did in the area of paramountcy and remainingwith the Government of India”. The British Crown did not acquireparamountcy rights by any express grant, cession or transfer, itexercised paramountcy because it was the dominant power.Paramountcy had no legal origin, and no fixed concept: itsdimensions depended upon what in given situation therepresentatives of the British Crown thought expedient.Paramountcy meant those powers which the British authoritiesby the might of arms, and in disregard of the sovereignty andauthority of the States chose to exercise. But that paramountcylapsed with the Indian Independence Act, 1947: even its shadowsdisappeared with the integration of the States with the IndianUnion. After the withdrawal of the British power and extinctionof paramountcy of the British power the Dominion Government

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of India did not and could not exercise any paramountcy overthe States. In clause 3 of the Standstill Agreement it was expresslyrecited that.... Nothing in the agreement includes the exercise ofany paramountcy functions”. The relations between the Statesand the Dominion Government were strictly governed by theinstruments executed from time to time. Subject to the powerconferred in respect of certain matters of common interest tolegislate and exercise executive authority the Princes hadsovereignty within their territories. With the advent of theConstitution the States ceased to exist, and the Princes and Chiefswho were recognized as Rulers were left with no sovereignauthority in them. It is difficult to conceive of the governmentof democratic Republic exercising against its citizens“paramountcy” claimed to be inherited from an imperial power.The power and authority which the Union may exercise againstits citizens and even aliens spring from and are strictlycircumscribed by the Constitution.

132. The fundamentals on which paramountcy rested i.e. thecompulsion of geography and the essentials for ensuring securityand special responsibility of the Government of India to protectall territories in India survived the enactment of the IndianIndependence Act, for between August 15, 1947 and the date ofintegration of the various States, the Government of India wasthe only fully sovereign authority. But paramountcy with its brazen-faced autocracy no longer survived the enactment of theConstitution. Under our Constitution an action not authorised bylaw against the citizens of the Union cannot be supported underthe shelter of paramountcy. The functions of the President ofIndia stem from the Constitution — not from “concept of theBritish Crown” identified or unidentified. What the Constitutiondoes not authorise, the President cannot grant. Rulership istherefore not privilege which the President may in the exerciseof his discretion bestow or withhold.”75. Relying upon the said authority, it is canvassed by Mr. Narimanthat the agreements of 1892 and 1924 were relatable to paramountcyfunctions and, therefore, the “Standstill Agreement” of Mysore couldnot be held to have continued the said two agreements since they arerelatable to paramountcy and, in fact, after the lapse of suzerainty of the

ABritish Crown under the 1947 Act, both the agreements are bound to betreated to have been lapsed. In this context, he has drawn inspirationfrom certain passages of the book “Integration of Indian States” by Mr.V.P. Menon who has commented on the provisions of Section 7 of the1947 Act. The comments of the learned author in this regard are asfollows:-B

“The next question was whether, even if paramountcy lapsed,all agreements of commercial, economic or financial characterbetween the States on die one hand and the British Government,the Secretary of State, and the Governor-General on the other,would cease to be legally effective. I pointed out that there wereseveral important agreements which had been entered into forthe common benefit of the States and British India whereparamountcy did not enter, such as the agreement of 1920 withBahawaipur and Bikaner regarding the Sutlej Valley canalsproject, and the Government of India agreement on salt withJaipur and Jodhpur. The mutual rights and obligations- of partiesunder such agreements could not be regarded as lapsing on thewithdrawal of paramountcy. On the commencement of theGovernment of India Act of 1935, the Crown’s rights andobligations had become for all practical and constitutionalpurposes the rights and obligations of the Central Governmentand were secured as such by the provisions of the Act. Thefinancial commitments of the Central Government underagreements of this type were considerable. I therefore took theview that it would be best that these agreements should continueto be binding both on the States and on the successorGovernments.

Sir Conrad Corfield. on behalf of the Political Departmentcontested my point of view. He referred to meeting betweenhimself and Lord Pethick-Lawrence at which it had been agreedthat the abolition of the Crown Representative wouldautomatically cause paramountcy to become void, together withany subsisting agreements between the Crown and the States.Sir Conrad did not agree with the view that paramountcy did notenter into the Sutiej Valley Canals Agreement of 1920 and theJaipur and Jodhpur Salt Agreements. The first of these had beenentered into on behalf of Bahawaipur by Council of Regency

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

controlled by the paramount power while the ruler was minor.The Jaipur and Jodhpur Salt Agreements wee typical of thosewhich States had been required to conclude with the paramountpower during the latter half of the nineteenth century in theinterests of the central revenues. The Political Adviser wasunable to entertain the view that the agreements should becontinued after the lapse of paramountcy.

Lord Mountbatten did not take sides in this conflict of opinion.He merely forwarded both my view as well as that of the PoliticalDepartment to the India Office.

It was about this time that the Secretary of State intimated thatthe Indian Independence Bill should include specific denunciationof the treaties with the Indian States. Normally speaking, treatieswere terminated by ‘acts of State’, but there was no reasonwhy, on an occasion of this importance and in the peculiarcircumstances, this should not be done by an Act of Parliamentwhich would emphasize the legal position whereby paramountcydid not pass to the new Indian Dominions. This was consideredby the Viceroy’s advisers; they deprecated any such formaldenunciation of treaties.Meanwhile the Secretary of State’s opinion in regard to thecontinuance of existing agreements was received. He stated thatHis Majesty’s Government fully appreciated the importanceattached by the Reforms Commissioner to the avoidance ifpossible of complete severance of relations with the States andthe necessity for negotiations between parties over the wholefield. But he considered that the views of the PoliticalDepartment must prevail, as they were in line with HisMajesty’s Government’s policy as stated in the CabinetMission memorandum. It was impossible to distinguishbetween agreements freely negotiated and those imposed.In any case, all had been made under the authority of theCrown and not of the executive Governments - central orprovincial - of British India....”

[Emphasis supplied]

76. He has also drawn strength from the other Water DisputesTribunals, namely, Narmada, Krishna and Godavari. His principal

Aemphasis is on the fact that the agreements entered into between thetwo States were for political considerations as the State of Mysore wasa princely State under the British suzerainty and the State of Madraswas province of British India and the disputes were never settled byapplication of international law but through authoritative decision of theBritish Crown. In essence, the submission is that after coming into forceBof the 1947 Act, the agreements became extinct by operation of law.

77. In this regard, we may usefully refer to the authority in Stateof Tamil Nadu v. State of Kerala and another[6] which was dealingwith the water level of Mullaperiyar Dam after it was solved by thisCourt on 27.02.2006 in Mullaperiyar Environmental Protection ForumCv. Union of India and others[7]. The controversy had arisen because theKerala State legislature had enacted the law immediately thereafter fixingand limiting full reservoir level to 136 ft. The Constitution Bench referredto the Periyar Lake Lease Agreement dated 29.10.1886 which allowedthe masonry dam to come up across Periyar reservoir. The agreementDstipulated many aspects. In 1979, the Government of Kerala had enteredinto correspondence with the Tamil Nadu Government to takeimmediate steps to strengthen the dam keeping in view the safety of theMullaperiyar Dam. Simultaneously, the Kerala Government alsorequested the Central Government to depute team from the CentralWater Commission (CWC) to inspect the Dam and suggest strengtheningEmeasures. In pursuance of the request from the Kerala Government,the CWC held meeting and three level measures, (i) emergency, (ii)medium, and (iii) long term were suggested to strengthen the Dam. Inthe meantime, it was recommended that the water level in the reservoirbe kept at 136 ft. In the second meeting held on 29.04.1980, it wasFopined that after the completion of emergency and medium-termstrengthening measures, the water level in the reservoir can be restoredup to 145 ft. In the year 1998, the State of Tamil Nadu had grievancethat despite the measures being suggested by CWC, no consensus couldbe reached between the State Governments, that is, Tamil Nadu and

Kerala, to raise the water level in the Mullaperiyar Reservoir beyondG136 ft. Various writ petitions were filed in both the High Courts and,eventually, the matters stood transferred to this Court and some directionswere issued in Mullaperiyar Environmental Protection Forum (supra).The Expert Committee, after discussion, opined that the water level in6 (2014) 12 SCC 696H7 (2006) 3 SCC 643

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

the Mullaperiyar Reservoir could be raised to 142 ft as that would notendanger the safety of the main Dam, including spillway, Baby Dam andearthen bund. The Constitution Bench referred to the first litigation beforethis Court, the Kerala Irrigation and Water Conservation Act, 2003, theKerala Irrigation and Water Conservation (Amendment) Act, 2006, thesecond litigation before this Court, grounds of challenge to the 2006(Amendment) Act and the defence put forth by the State of Kerala.Certain issues were framed by the Court out of which four questionsbeing relevant for the present purpose are reproduced below:-

“4. (b) Whether the pleas relating to validity and binding natureof the deed dated 29-10-1886, the nature of Periyar River,structural safety of the Mullaperiyar Dam, etc. raised by thefirst defendant in its defence, are finally decided by the judgmentof this Court dated 27-2-2006 in Mullaperiyar EnvironmentalProtection Forum v. Union of India and consequently firstdefendant is barred from raising or reagitating those issues andpleas in this suit, by the principle of res judicata and constructiveres judicata?

5. Whether the suit based on legal right claimed under thelease deed executed between the Government of the Maharajaof Travancore and the Secretary of State for India on 29-10-1886, is barred by the proviso to Article 131 of the Constitutionof India?

6. Whether the first defendant is estopped from raising the pleathat the deed dated 29-10-1886 has lapsed, in view of subsequentconduct of the first defendant and execution of the supplementalagreements dated 29-5-1970 ratifying the various provisions ofthe original deed dated 29-10-1886?

7. Whether the lease deed executed between the Governmentof the Maharaja of Travancore and Secretary of State for Indiaon 29-10-1886 is valid, binding on first defendant and enforceableby plaintiff against the first defendant?”

78. Be it noted, initially, the matter was heard by three-JudgeBench and later on, it was referred to the Constitution Bench as some ofthe issues framed in the suit involved decision on certain substantialquestions of law concerning interpretation of the Constitution. Dealingwith the issues on the 1886 lease agreement, the Court posed the

Aquestion – whether it is an existing contract under the 1935 Act.Reference was made to Section 177 of the 1935 Act and interpretingthe same, the Court held:-

“41. Section 177 of the 1935 Act, omitting the unnecessary partreads,

“177. (1) … any contract made before the commencement ofPart III of this Act by, or on behalf of, the Secretary of State-in-Council shall, as from that date—

(a) if it was made for the purposes which will after thecommencement of Part III of this Act be purposes of theGovernment of Province, have effect as if it had been madeon behalf of that Province….”

By virtue of this provision, the existing contracts of the Secretaryof State-in-Council would have the effect as if they had beenmade on behalf of the Province. When we see the 1886 LeaseDAgreement in the light of Section 177 of the 1935 Act, thereremains no doubt at all that lease that was executed by theSecretary of State-in-Council for the Presidency of Madras(Madras Province) had the effect as if it had been made onbehalf of the Presidency of Madras or for that matter MadrasEProvince. To put it differently, by legal fiction created underSection 177(1)(a), the Presidency of Madras (Madras Province)became lessee under the 1886 Lease Agreement. We have,therefore, no hesitation in accepting the submission of Mr VinodBobde, learned Senior Counsel for Tamil Nadu that by virtue ofSection 177 of the 1935 Act, as from the commencement of theF1935 Act, the Government of the Province of Madras is deemedto be substituted as the lessee in the 1886 Lease Agreement.”

79. Thereafter, the Court addressed the issue of the effect andimpact of the events between 18.07.1947 and 26.01.1950 which relateto the 1947 Act and the Constitution of India. The Court referred to theG“Standstill Agreement” which was entered into between the State ofTravancore and the Dominion of India, the omission of Section 177 ofthe 1935 Act and the merger of two States – Travancore and Cochin.Analysing further, the Court referred to Section 7 of the 1947 Act andobserved thus:-

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“45. As noted above, the 1947 Act came into effect from 15-8-1947. Section 7 deals with the consequences of the setting up ofthe new dominions. Clause (b) of sub-section (1) of Section 7declares that suzerainty of His Majesty over the Indian Stateslapses. On lapsing of suzerainty, it provides for lapsing of alltreaties and agreements in force between His Majesty and theRulers of Indian States from that date. The proviso appended tosub-section (1), however, continues such agreements unless theprovisions in such agreement are denounced by the Ruler of theIndian State or are superseded by subsequent agreement.

46. It is the contention of Mr Harish N. Salve that firstly, 1886Lease Agreement lapsed by virtue of main provision of Section7(1)(b) of the 1947 Act as it comprehends all treaties andagreements and secondly, the Maharaja of Travancore denouncedall agreements including the 1886 Lease Agreement.

47. It is true that Section 7(1)(b) of the 1947 Act uses theexpression “all treaties and agreements” but, in our opinion, theword “all” is not intended to cover the agreements which are notpolitical in nature. This is clear from the purpose of Section 7 asit deals with lapsing of suzerainty of His Majesty over the IndianStates and the consequence of lapsing of suzerainty. Obviously,the provision was not intended to cover the agreements andtreaties other than political. We, accordingly, hold that Section7(1)(b) concerns only with political treaties and agreements.”

And again:-

“53. It is argued by Mr Harish N. Salve that the StandstillAgreement, which is between parties different from those whohad executed the 1886 Lease Agreement, is fresh agreementwhich brought into force, for the time being, contractual obligationsbetween the Maharaja of Travancore and the Dominion of India.As the parties were different and the 1947 Act provided for thelapse of the British suzerainty over the Princely States, thequestion of continuance of the 1886 Lease Agreement does notarise. In any case, the learned Senior Counsel for Kerala arguesAB

that the Standstill Agreement could not survive after the deletionof Section 177 of the 1935 Act. We find no merit in thesearguments. The Standstill Agreement is not fresh agreementbetween the Dominion of India and the State of Travancore assuggested by Mr Harish N. Salve. The Standstill Agreementwas intended for the benefit of the parties who were parties tothe agreements and arrangements, which were matters ofcommon concern existing between the Crown and the State ofTravancore. In the background of Instrument of Accession, itbecame necessary to have some arrangement so that the existingagreements and arrangements between the Crown and the IndianStates continued. We do not think that the Standstill Agreementis political in nature as contended on behalf of Kerala.

54. The argument that the Standstill Agreement could not surviveafter the deletion of Section 177 with effect from 15-8-1947 byvirtue of India (Provisional Constitution) Order, 1947 is alsowithout substance. Section 177 was deleted because it could nolonger work and because the Dominion of India was to comeinto being with provinces as part of the Dominion and there wasto be no Secretary of State-in-Council. We are in agreementwith Mr Vinod Bobde, learned Senior Counsel for Tamil Naduthat deletion of Section 177 was prospective and it did not affectthe deeming that had already taken place in 1935. The StandstillAgreement, in our view, cannot be said to have been wiped outby the deletion of Section 177.

x x x x x

56. The argument that there is no successor of Crown is irrelevantbecause by virtue of Section 177, the Government of Provinceof Madras had already become lessee in the 1886 LeaseAgreement by deeming in 1935 itself. The Standstill Agreementcontinued the 1886 Lease Agreement between the Province ofMadras and the State of Travancore. The 1886 Lease Agreementdid not lapse under the main provision of Section 7(1)(b) of the1947 Act. There was no unequivocal and unambiguousdenouncement of the 1886 Lease Agreement by the Ruler ofTravancore under proviso to Section 7(1)(b). The Province ofMadras was beneficiary of the Standstill Agreement. Surely, deletionof Section 177 has not affected the rights of Province of Madras.”

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

80. sThe Court analysed the opinions of the learned Judgesexpressed in Dr. Babu Ram Saksena (supra) and eventually held thus:-

“61.5. careful consideration of the judgment by Mukherjea, J.in Ram Babu Saksena would show that His Lordship’s opinionhas no application to non-political agreement such as the 1886Lease Agreement. The observation of Mukherjea, J., “When asa result of amalgamation or merger, State loses its fullindependent power of action over the subject-matter of treatypreviously concluded, the treaty must necessarily lapse. …” isin the context of an extradition treaty which is purely political innature. In our view, Ram Babu Saksena is clearly distinguishableand does not help Kerala in its argument that the 1886 LeaseAgreement lapsed on merger of the two States, Travancore andCochin, into the United State of Travancore and Cochin.”

81. The Constitution Bench also addressed the issue whether the1886 lease agreement was an Act of State and opined that the 1886lease agreement is not political in nature. It distinguished the ConstitutionBench decision in Virendra Singh and others v. State of U.P.[8] andruled that the said decision is distinguishable and that the 1886 leaseagreement is an ordinary agreement and not political in nature. It isworthy to note that the Constitution Bench addressed the scope of Article363 and Article 131, scanned both the Articles and held:-“73. Article 131 of the Constitution deals with the originaljurisdiction of this Court. Subject to the provisions of theConstitution, this Court has original jurisdiction in any dispute,inter alia, between the Government of India and any State orStates on one side and one or more other States on the other ifand insofar as the dispute involves any question (whether of lawor fact) on which the existence of legal right depends. However,by the proviso appended thereto, the jurisdiction of this Court isbarred if the dispute to which State specified in Part of theFirst Schedule is party if the dispute arises out of any provisionof treaty, agreement, covenant, engagement, sanad or othersimilar instrument was entered into or executed before thecommencement of the Constitution and has or has been continuedin operation after such commencement.

8 (1955) 1 SCR 415 : AIR 1954 SC 447

74. There is similarity of provision in Article 363 and proviso toArticle 131. The original jurisdiction conferred on this Court bythe main provision contained in Article 131 is excepted by virtueof the proviso in the matters of political settlements. By makingprovisions such as Article 363 and proviso to Article 131, thepolitical settlements have been taken out of the purview of judicialpronouncements. Proviso appended to Article 131 renders adispute arising out of any treaty, agreement, covenant,engagement, sanad or similar instrument which is political in natureexecuted before the commencement of the Constitution andwhich has or has been continued in operation, non-justiciableand jurisdiction of this Court is barred. The jurisdiction of thisCourt is not taken away in respect of the dispute arising out ofan ordinary agreement. The instruments referred to and describedin the proviso are only those which are political in nature. Non-political instruments are not covered by the proviso.

75. The 1886 Lease Agreement does provide for resolution ofdisputes between the parties to the agreement by way ofarbitration: it contains an arbitration clause. The submission ofKerala that enforcement of any award under the arbitration clausewould be political in nature is misplaced. The assumption of Keralathat the 1886 Lease Agreement was not justiciable andenforceable in court of law prior to the Constitution as no courtin Travancore would obviously entertain claim against Maharajaand no court outside the State of Travancore have jurisdictionover the Maharaja of Travancore is not relevant at all and devoidof any merit.

76. We are in complete agreement with the view taken by thisCourt in Mullaperiyar Environmental Protection Forum thatthe 1886 Lease Agreement would not come within the purviewof Article 363 and jurisdiction of this Court is not barred. As anecessary corollary, the dispute arising out of the 1886 LeaseAgreement is not barred under Article 131 proviso as well.Moreover, the principal challenge laid in the suit pertains to theconstitutional validity of the 2006 (Amendment) Act for whichArticle 363 or for that matter under Article 131 proviso does notcome into operation at all.”

82. Commenting on the aforesaid decision, it is contended by Mr.Nariman that in Madhav Rao Scindia (supra), the majority had clearlyexpressed the view that paramountcy no longer survived after the cominginto force of the Constitution of India. In the said decision, it has beenclearly spelt out that it is difficult to conceive of the Government of ademocratic Republic exercising against its citizens “paramountcy claimto be inherited, imperial power”. According to Mr. Nariman, wheneverything has come to an end, the concept of restriction to ‘politicalnature’, as has been held in State of Tamil Nadu v. State of Kerala(supra), sounds discordant note.83. Mr. Dwivedi, learned senior counsel, per contra, would submitthat the decision in State of Tamil Nadu (supra) does not run counter tothe principle stated in Madhav Rao Scindia. According to him, MadhavRao Scindia exclusively dealt with political situation. To bolster thesaid aspect, he has drawn our attention to the “Standstill Agreement”which does not apply to any paramountcy function. He has also laidstress on the passage that discusses about quid pro quo for agreeing tosurrender the power and authority by the rulers and that is why it wasenacted in the Constitution that the Princes who had signed the covenantof the nature specified should be recognized as rulers. In essence, thesubmission is that if the authority in Madhav Rao Scindia’s case isappositely read and understood, it dealt with the abolition of Privy Pursesby the President of India and how the action was erroneous and how theCourt treated it to be of political nature.

84. It is absolutely manifest that the ruling in Madhav Rao Scindia(supra) states that after coming into force of the 1947 Act, theparamountcy lapsed and after the integration of the States with the IndianUnion, the shadow of paramountcy faded and the Government of Indiabecame the full sovereign authority. After the Constitution came intoforce, the exercise of power by the State over its citizens stoodcircumscribed by the Constitution. In the said case, the doctrine ofparamountcy has no play. The two agreements, on studied scrutiny,do not indicate any aspect that can be called political or touching anyfacet of the sovereignty of India. The agreements covered the areas oflarger public interest like construction of dams and irrigation of landexisting within the two States, namely, the State of Mysore and the Stateof Madras and had nothing to do with political arrangement. Therefore,we are not inclined to accept the submission of Mr. Nariman that after

Acoming into force of the 1947 Act and thereafter the Constitution ofIndia, the agreements of 1892 and 1924 became inoperative and totallyextinct.

I.Infraction of Article 363 and non-maintainability of the disputeon the basis of agreementsB

85. The next plank of submission pertains to the constitutionalinfraction of Article 363. Article 363 reads as follows:-

“Article 363. Bar to interference by courts in disputesarising out of certain treaties, agreements, etc.–(1) Notwithstanding anything in this Constitution but subject toCthe provisions of Article 143, neither the Supreme Court nor anyother court shall have jurisdiction in any dispute arising out ofany provision of treaty, agreement, covenant, engagement, sanador other similar instrument which was entered into or executedbefore the commencement of this Constitution by any Ruler ofDan Indian State and to which the Government was party andwhich has or has been continued in operation after suchcommencement, or in any dispute in respect of any right accruingunder or any liability or obligation arising out of any of theprovisions of this Constitution relating to any such treaty,agreement, covenant, engagement, sanad or other similarEinstrument

(2) In this article

(a) Indian State means any territory recognised before thecommencement of this Constitution by His Majesty or theGovernment of the Dominion of India as being such State;Fand

(b) Ruler includes the Prince, Chief or other person recognisedbefore such commencement by His Majesty or the Governmentof the Dominion of India as the Ruler of any Indian State.”

G86. Pressing into service the aforesaid Article, it is contended byMr. Nariman that the said Article commences with non-obstante clausebut subject to the provisions of Article 143 and that would exclude anythingcontained in Article 262(1) and, therefore, the bar under Article 363(1)must prevail. He has criticized the finding of the Tribunal which hasplaced reliance on the judgment of this Court in the Privy Purse caseH

placing reliance on the view of Hegde, J. which is not the majority viewbecause the majority spoke through Shah,J. It is urged by him that thefinding of the Tribunal that Article 363 cannot bar the investigation ofany complaint including complaint regarding the agreement which hasbeen executed by the then Ruler of Princely State like Mysore whichbecame an Indian State within the Dominion of India, State under theFirst Schedule after coming into force of the Constitution is untenable.That apart, the Tribunal has opined that once the dispute is referred tothe Tribunal which has exclusive jurisdiction under the Constitution toexamine the dispute in respect of use, distribution or control of waters ofany inter-state river or river valley, the said jurisdiction cannot becontrolled or curtailed by Article 363 and in case of agreement relatingto sharing of water of inter-State river, the Tribunal has to examine theclaims of the different riparian States in the background of suchagreement and, therefore, the enquiry is not barred under Article 363 ofthe Constitution. Attacking the said findings, it is canvassed by Mr.Nariman that the Tribunal has failed to appreciate the fact that Articles262 and 263 operate in entirely different fields, for Article 262 is only anexception how particular matter relating to inter-State river waterdisputes between States of India have to be decided because it is notdecided by the exclusive remedy provided in Article 131 of the Constitutionbut by an alternative mode now prescribed by the Parliament by lawunder Article 261(2), that is, the 1956 Act. It is further put forth by himthat the agreements of the present nature come within the purview ofArticle 363 and to substantiate the said argument, he has placed relianceon State of Seraikella v. Union of India and another[9].

87. It is submitted by Mr. Dwivedi, learned senior counsel for theState of Tamil Nadu, that the bar of jurisdiction of this Court under Article363 of the Constitution relates only to certain clauses of agreements,treaties, covenants, engagements, “Sanad”, etc. The expression “othersimilar instruments’ clearly indicates that it is not as if all kinds ofagreements and treaties would come within the purview of the saidprovision. Article 363 covers only such political agreements executedbetween the Rulers of Indian States and the Government of the Dominionof India between 1947 and 1950. From the intrinsic language of Article363 read with the proviso to Article 131, it is clear that the bar of jurisdictionof the Court applies only to disputes arising out of political agreements.

9 951 SCR 474 : AIR 1951 SC 253

ABCDE

88. He has referred to the debates of the Constituent Assemblyespecially the observations made by Dr. B.R. Ambedkar as the Chairmanof the Drafting Committee while moving the draft Constitution forconsideration by the Constituent Assembly. The said observations areextracted hereunder:-

B“On the 15[th] August 1947 we had 600 Indian States in existence.Today by the integration of the Indian States with IndianProvinces or merger among themselves or by the Centre havingtaken them as centrally administered areas, there have remainedsome 20 or 30 States as viable States. This is very rapid processand progress. I appeal to those States that remain to fall in lineCwith the Indian Provinces and to become full units of the Indian

Union on the same terms as the Indian Provinces. They willthereby give the Indian Union the strength it needs. They willsave themselves the bother of starting their own ConstituentAssemblies and drafting their own separate constitution, and theyDwill lose nothing that is of value to them. I feel hopeful that myappeal will not go in vain and that before the Constitution is passed,we will be able to wipe off the differences between the Provincesand the Indian States.”

(B. Shiva Rao (Ed.), The Framing of India’s Constitution –ESelect Documents, Volume IV, at p.434)

89. The learned senior counsel would submit that the purpose ofArticle 363 was to protect the Government of India from purely politicalagreements which had been entered into between the Rulers of theIndian States and the Dominion of India or its predecessor GovernmentsFso as to prevent any obstruction to the smooth accession of the IndianStates to the Dominion of India.

90. To appreciate the submissions advanced before this Court,we are required to analyse what has been said by this Court in State ofSeraikella. In the said case, suit was filed under the OriginalGJurisdiction of the Federal Court as it was functioning before theConstitution of India came into force. The State of Seraikella was aState in Orissa and on 16[th] August, 1947, the plaintiff-State acceded tothe Dominion of India by virtue of the Instrument of Accession executedby its Ruler and accepted by the Governor General under Section 6 ofthe Government of India Act, 1935. After coming into force of theHIndian Independence Act, 1947, the Dominion of India was set up underthe Government of India Act, 1935 as adopted which provided that theIndian State may accede to the Dominion of India by an Instrument ofAccession. It was expressly provided that by executing the saidinstrument, the Ruler should not be deemed to have committed to theacceptance of any future Constitution of India or to fetter his discretionto enter into arrangements with the Government of India under any suchfuture Constitution. Various other postulates which were part of theinstrument have been taken note of by the Constitution Bench. It isworthy to note that apart from the initial instrument, no supplementinstrument was executed by the Ruler and no amendment of the 1947Act was accepted by him. “Standstill Agreement” was also executedby the Ruler under which it was agreed that matters of common concernas specified in the Schedule to the agreement would continue betweenthe Dominion of India and the said State until new agreements weremade in that behalf. The controversy arose in the suit as the plaintiff-State claimed to have merged in the province of Bihar. It was contendedby the plaintiff that the Government of Orissa wrongfully and illegallypurported to administer the plaintiff-State by virtue of the Notification of23.12.1947 under the Indian Independence Act, 1947. It was claimedthat the Act was ultra vires and had no binding effect on the plaintiff-State. It was also contended that the agreement dated 15.12.1947 wasvoid for want of consideration and was inoperative. It was furthercanvassed that on 18[th] May, 1948, without the consent and approval ofthe plaintiff-State or its Ruler, the Province of Bihar absolutely illegallytook over the administration of the State and passed the Seraikella andKharsawan States Order, 1948. It was also asserted that the Dominionof India had no authority to go beyond the Instrument of Accession andfurther had no authority to delegate powers to the Province of Bihar toadminister the plaintiff-State. The Constitution Bench, noting variousfacts and commenting on coming into effect of the Constitution of Indiaand the jurisdiction conferred on the Court under Article 131, proceededto analyse the scope and ambit of Article 363 of the Constitution. Dwellingupon the same, Kania, C. J. opined that the all-embracing opening wordsof Article 363 in terms override all provisions of the Constitution, but aremade subject only to the provisions of Article 143 which enables thePresident to consult the Supreme Court on matters referred to and,therefore, clearly override the operation of Article 374(2) also. Thejurisdiction of the Supreme Court having been stated in Articles 131 to136, Article 363 provides that notwithstanding anything contained in those

DEFG

Aarticles and other articles of the Constitution, neither the Supreme Courtnor any other court will have jurisdiction in any dispute arising out of anyprovision of treaty, agreement, covenant, engagement, “Sanad” or othersimilar instrument which was entered into or executed before thecommencement of this Constitution and which had or had been continuedin operation after such commencement. If, therefore, the dispute arisesBin respect of document of that description and if such document hadbeen executed before the Constitution by Ruler and which was or hadcontinued in operation after such commencement, this Court has nojurisdiction to determine such issue. The learned Chief Justice repelledthe argument that the Article is prospective and not retrospective and,Chence, it only covers the cases which are filed in the Supreme Courtafter the Constitution came into force and did not affect suits filed in theFederal Court before the Constitution of India came into operation.Thereafter, he adverted to the assertions made in the plaint and statedthat the only question which remained for decision was whether on thestructure of the plaint, the dispute raised in the suit arose out of theDprovision of treaty, agreement, covenant, engagement, “Sanad” orany other similar instrument. Eventually, Kania, C.J. held:-“I have already noticed above that the dispute in respect of theagreement of the 15th December, 1947, is immaterial for thepresent discussion. If the plaintiff repudiates that agreement heEis seeking to enforce his rights after ignoring the same. If theplaintiff (as noticed in four of the suits) relies on this agreement,it becomes part of the Instrument of Accession under Section6(5) of the Government of India Act, 1935, and the dispute willstill have to be considered having regard to the terms of the twoFdocuments viz. the original Instrument of Accession and thesupplementary Instrument. The question thus resolves itself intoan analysis of the plaint and to find out what the plaintiff seeks toget by his suit. Apart from the fact that in prayers (f) and (g) ofhis plaint he seeks to enforce his rights under the Agreement ofthe 15th December, 1947, it appears clear that the whole ambitGof the suit is to enforce his Instrument of Accession. The plaintiffcontends firstly that it had signed the Instrument of Accessionthrough its Ruler. The State next complains that, acting beyondthe powers given over under the Instrument of Accession, theDominion of India and the State of Bihar are trespassing

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

wrongfully on its legislative and executive functions, that theDominion of India and the State of Bihar are making laws whichthey have no power to make having regard to the Instrument ofAccession, and are wrongfully interfering with the administrationof the State beyond the rights given to them under the Instrumentof Accession. The whole plaint is nothing else except the claimto enforce the plaintiff’s right under the Instrument of Accession.The dispute therefore in my opinion clearly is in respect of thisInstrument of Accession and is covered by Article 363(1) of theConstitution of India. The question of the validity of the differentenactments and orders is also based on the rights claimed underthe Instrument of Accession so far as the plaintiff is concerned.On the side of the defendants, the position is that they admit theInstrument of Accession and they do not claim that they areexercising the disputed rights under that Instrument. Theircontention is that the Agreement of the 15th of December, 1947,was validly signed and is binding and enforceable against theplaintiff. The defendants contend that their action in passing thedisputed legislation and orders and the action in taking over theadministration are all based on that Agreement of 15th December,1947. If the plaintiff contends that that Agreement is not bindingon it, it cannot enforce its rights under the original jurisdiction ofthe Court. If the plaintiff has grievance and right to reliefwhich the defendants contend it has not, the forum to seek redressis not the Supreme Court exercising its original jurisdiction onthe transfer of the suit from the Federal Court. According to thedefendants, the situation in those circumstances will be of aSovereign Independent State trespassing on the territories,powers and privileges of another neighbouring independent State.To redress grievance arising out of such action on the part ofthe defendants, the Supreme Court is not the forum to give relief.The issue is answered in the negative, costs in the cause.”

91. Bose, J., in his separate opinion, addressed the Issue No.1which was to the following effect:-

“1. Whether having regard to the subject-matter of the suit andthe provisions contained in Article 363(1) of the Constitution ofIndia, this Hon’ble Court has jurisdiction to entertain the suit?”Answering the said issue, he opined:-

ABCDEF

A“Even so, it is next contended, Article 363, which enacts generalrule of non-interference by courts in certain classes of disputes,cannot control the operation of Article 374(2), which is specialprovision providing that suits, appeals and proceedings pendingin the Federal Court at the commencement of the Constitutionshall stand removed to the Supreme Court and that the SupremeBCourt shall have jurisdiction to hear and determine the same.There would be considerable force in this argument but for theopening words of Article 363(1), namely, “notwithstandinganything in this Constitution.” These words clearly indicate thatthe bar to the exercise of jurisdiction enacted in Article 363Ccontrols the operation of Article 374(2)and excludes the rule ofconstruction invoked by the plaintiffs.”

92. The aforesaid decision has to be appositely understood andappreciated. Mr. Nariman would submit that any controversy relating toany agreement is not entertainable by this Court. According to him, aDcomplaint for raising dispute under Article 262 of the Constitution canbe independent without the base or foundation of the 1892 and 1924agreements but to structure the stand on the fulcrum of the agreementswould run counter to Article 363 of the Constitution as has been held bythe Constitution Bench in State of Seraikella (supra). It is also proponedby him that the later decision in State of Tamil Nadu v. State of KeralaE(supra) has not taken note of the earlier decision and introduced theelement of political agreement and categorized agreements into distinctones, namely, political agreement and ordinary agreement. The argumentdeserves keen scrutiny. We have extensively discussed the facts in Stateof Seraikella (supra) and the view expressed therein. As is perceptibleFto us, the Constitution Bench, in actuality, was dealing with politicalissue as there is constant reference to the “Instrument of Accession”and the claim was to enforce the instrument and further to declare thelegislative and executive action of the Dominion of India and the Stateof Bihar as illegal. The stand of the respondent, namely, Dominion ofIndia, was that it was acting as per the Instrument of Accession. TheGrival stands and the analysis made thereon clearly reflect the politicalnature of the controversy.

93. Sastri, J., in his concurring opinion, stated:-

“22. … The controversies regarding these matters are butcontentions whereby the parties seek to establish, on the oneHhand, that the Instrument of Accession still governs their mutual

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

rights and obligations and, on the other, that that Instrument standssuperseded and is no longer in force. Issues have no doubt beenframed in regard to these matters but they cannot, in my opinion,be considered to be disputes for the purposes of Article 131 orArticle 363(1). These articles deal with the jurisdiction of Courtsand they envisage disputed claims to substantive legal rights.The claims in these suits are undoubtedly based on the respectiveInstruments of Accession and they are repudiated because thoseInstruments of Accession are said to have been superseded byreason of the alleged agreement of December, 1947. These claimsare disputes to which Article 363(1) clearly applies. The otherso-called disputes are only incidental and ancillary controversiesraised with view to support or overthrow the claims and cannot,in my opinion, affect the operation of the bar under that Articleany more than, for instance, Issue 5 relating to the necessity fornotice to the defendants under Section 80 of the Civil ProcedureCode.23. Nevertheless, it is contended, the article has no applicationhere and it cannot operate retrospectively and applies only todisputes arising after the commencement of the Constitution. Iam unable to accept this restricted interpretation of Article 363(1).While the Article undoubtedly postulates the continued operationof the treaties, agreements, etc., entered into or executed beforethe commencement of the Constitution and giving rise to thedisputes, it does not require, as condition of its application, thatsuch Disputes should arise after the commencement of theConstitution. I see no reason for importing restriction which aplain grammatical construction of the language employed doesnot warrant. It is not correct to say that the wider constructionwould make the operation of the article retrospective, for thebar to interference by the court operates only after theConstitution came into force irrespective of the disputesconcerned having arisen before or after the commencement ofthe Constitution. It was said that the article should not be construedso as to bar the trial of pending suits or proceedings. But this isnot case of pending action in court which continues tofunction. The Federal Court, in which the suits were pending,and which had exclusive jurisdiction to deal with them, wasabolished and new court, the Supreme Court of India, was

Acreated with original jurisdiction strictly limited to disputes relatingto legal rights between States recognised as such under theConstitution. But as the States specified in Part of the FirstSchedule had semi-sovereign status before the Constitution,agreements with them were in the nature of international treatiesand covenants, and disputes arising out of them would not lie inBmunicipal courts. That principle is given effect to, so far as theSupreme Court’s original jurisdiction is concerned, by the provisoto Article 131 which defines such jurisdiction and, in regard to allcourts and in respect of all proceedings, by Article 363(1). Thereason for applying that principle is greater, not less, in regard toCsuch disputes arising before the Constitution when these States,then known as Indian States, enjoyed higher degree of politicalfreedom. Furthermore, the construction contended for by theplaintiffs as applied to Article 131 would mean that the Courtwould, notwithstanding the proviso, have jurisdiction in respectof such disputes, provided they arose before the commencementDof the Constitution. If that had been intended, one would expectthat such jurisdiction would have been conferred by positiveenactment, instead of being left to be derived by implication froma proviso intended to delimit the jurisdiction conferred by thatarticle. It seems to me, therefore, that the proviso to Article 131Emust be construed as applicable to disputes of the kind mentionedarising both before and after the commencement of theConstitution. If so, Article 363(1) must receive the sameconstruction, the language employed being essentially the same.”

94. Relying on the aforesaid opinion of Sastri. J., it is submitted byFMr. Nariman that each of the agreements of 1892 and 1924 executed bythe Ruler of semi-sovereign state has to be regarded as an internationaltreaty, covenant or agreement as in any case even under common lawwhich continues under the provisions of Article 372 and thus, the municipalcourts or authorities would not have jurisdiction to adjudicate upon them,for Article 363 clearly stipulates that municipal courts do not interfere inGsuch agreements where one of the parties has semi-sovereign status.In essence, the contention is that the agreements are not liable to beadjudicated in court of law or tribunal as has been held by the ConstitutionBench in In Re: Presidential Reference (Cauvery Water DisputesTribunal)[10]to the effect that the entire “judicial power of the State”

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under Article 131 relating to adjudication of water disputes stoodtransferred under the law enacted under Article 262(1), that is, the 1956Act and the finding recorded by the Tribunal is not court and, therefore,Article 363(1) would not apply to it is incorrect. According to him, theagreements are not to be looked into for any purpose.

95. To appreciate the submission, we may refer to the analysisput forth by the Tribunal in this regard. The Tribunal adverted to thedecision in Madhav Rao Scindia (supra) and came to hold thus:-

“21. The same is the position here. The Inter-State WaterDisputes Act, 1956 has not been enacted under Entry 56 of theUnion List of Seventh Schedule of the Constitution. It has beenenacted under power vested in the Parliament by Article 262 ofthe Constitution. In view of Article 262 Parliament may by lawprovide for adjudication of any dispute or complaint with respectto the use, distribution or control of the waters of, or in, anyinter- State river or river valley. Article 262(2) has non-obstanteclause saying that notwithstanding anything in the Constitution,Parliament may by law provide that neither the Supreme Courtnor any other court shall exercise jurisdiction in respect of anysuch dispute or complaint as is referred in clause (1). It hasalready been pointed out above that in exercise of this power inthe Inter-State Water Disputes Act, 1956, Section 11 excludesthe jurisdiction of all courts including the Supreme Court, if inArticle 363(1) there is non- obstante clause giving an over-riding effect, then even in Article 262(2) there is non-obstanteclause which read with Section 11 of the Inter-State WaterDisputes Act shall exclude the jurisdiction of Supreme Court orany other court in respect of dispute relating to use, distributionand control of waters of inter-State river or river valley. It cannotbe disputed that Article 262 is special provision providing foradjudication of any dispute in respect of use, distribution or controlof waters of an inter-State river or river valley. As such on thewell-known rule of construction generalia specialibus nonderogant, special provision excludes the general provision;Article 363 cannot bar the investigation in respect of any complaintincluding complaint regarding the non-compliance of terms ofan agreement which had been executed by the then ruler of aprincely State like Mysore which became an Indian State within

[2018] 5 S.C.R.

Athe Dominion of India and later after coming into force of theConstitution, State under First Schedule of the Constitution.”

96. The Tribunal, thereafter, placed reliance on Maharaja ShreeUmaid Mills Ltd. v. Union of India[11]; State of Seraikella (supra)and H.H. Maharajadhiraja Madhav Rao Jiwaji Rao ScindiaBBahadur (supra) and the 1956 Act and opined:-

“In this background, it is very difficult to hold that Article 363 ofthe Constitution shall govern or control the inquiry andinvestigation by the Tribunal in respect of water dispute relatingto interpretation of the terms of any agreement or failure of anyCState to implement the terms of such agreement relating to theuse, distribution or control of such waters.”

97. Having noted the same, we may look at what has been statedby this Court in the context of Article 363 of the Constitution. In MadhavRao Scindia case, Hidayatullah, C.J., while dealing with the interpretationDof Article 363, observed:-

“66. I begin with Article 363. That article was quoted in extensoearlier. The learned Attorney-General used the historical eventsas background for his contention that Article 363 must beconstrued as giving an exclusive right of determination to theEPresident on the subject of recognition and withdrawal ofrecognition. He submitted that just as an act of State cannot bequestioned in Municipal Court so also the withdrawal ofrecognition cannot be called in question. He cited large numberof authorities in support of his case that an act of State is notsubject to the scrutiny of the Courts.

67. The question here is not one of an act of State. Nor can anyassurance be drawn from the doctrine of act of State. What wehave to do is to construe the article. It bars jurisdiction of Court.It has no bearing upon the rights of the Rulers as such. It neitherincreases nor reduces those rights by an iota. I shall presentlyGattempt to find out its meaning. Before I do so I must say that itis well-known rule of interpretation of provisions barring thejurisdiction of civil courts that they must be strictly construed forthe exclusion of the jurisdiction of civil court, and least of allthe Supreme Court, is not to be lightly inferred. The gist of the

H11 (1963) Supp. (2) SCR 515 : AIR 1963 SC 953

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present dispute is whether the article bars the relief to thepetitioners although as held by me, the order of the President isultra vires.

68. The article commences with the opening words“notwithstanding anything in this Constitution”. These exclusionarywords are no doubt potent enough to exclude every considerationarising from the other provisions of the Constitution including theChapter on Fundamental Rights, but for that reason alone wemust determine the scope of the article strictly. The article goeson to say that jurisdiction of all Courts including the SupremeCourt is barred except that the President may consult theSupreme Court. Having said this the articles goes on to specifythe matters on which the jurisdiction is barred. This it does intwo parts. The first part is: “In any dispute arising out of anyprovision of treaty etc., which was entered into or executedbefore the commencement of this Constitution by any Ruler ofan Indian State to which the Government of the Dominion ofIndia was party and which has or has been continued inoperation after such commencement”. This shows that disputerelating to the enforcement, interpretation or breach of any treatyetc., is barred from the Courts’ jurisdiction. The words ‘arisingout of the provisions of treaty etc.,’ limit the words. Thus if atreaty, covenant, etc., is characterised as forged by any party,that would not be dispute ‘arising out of any provision of atreaty, covenant, etc.’ That dispute would be whether there is agenuine treaty or not. This illustration is given by me to showthat the exclusion is not all-embracing. The dispute to be barredmust arise from provision of the treaty, etc.”

98. Shah, J., while speaking for the majority, interpreting Article363, ruled:-

“133. Jurisdiction of the Courts in matters specified is excludednot because the Union of India is successor to the paramountcyof the British Crown, nor because the rights and obligationsaccepted and recognized by the Constitution may still be regardedas flowing from acts of State: it is only excluded in respect ofspecific matters by the express provision in Article 363 of theConstitution. Jurisdiction of the Courts even in those matters isnot barred “at the threshold” as contended by the Attorney-

General. The President cannot lay down the extent of this Court’sjurisdiction. He is not made by the Constitution the arbiter of theextent of his authority, nor of the validity of his acts. Action ofPresident is liable to be tested for its validity before the Courtsunless their jurisdiction is by express enactment or clearimplication barred. To accede to the claim that the jurisdiction ofthe Court is barred in respect of whatever the executive assertsis valid, is plainly to subvert the Rule of law. It is therefore withinthe province of the Court alone to determine what the disputebrought before it is and to determine whether the jurisdiction ofthe Court is, because it falls within one of the two limbs of Article363, excluded qua that dispute. The first limb of Article 363operates to defeat the jurisdiction of the Courts only when aclaim to relief founded on the covenants is disputed: the secondlimb of Article 363 operates when there is dispute with respectto rights or obligations accruing or arising out of provision ofthe Constitution relating to covenant.

134. In dealing with the dimensions of exclusion of the exerciseof judicial power under Article 363, it is necessary to bear inmind certain broad considerations. The proper forum under ourConstitution for determining legal dispute is the Court which isby training and experience, assisted by properly qualifiedadvocates, fitted to perform that task. provision which purportsto exclude the jurisdiction of the Courts in certain matters and todeprive the aggrieved party of the normal remedy will be strictlyconstrued, for it is principle not to be whittled down that anaggrieved party will not, unless the jurisdiction of the Courts isby clear enactment or necessary implication barred, be deniedhis right to seek recourse to the Courts for determination of hisrights. The Court will interpret statute as far as possible,agreeably to justice and reason and that in case of two or moreinterpretations, one which is more reasonable and just will beadopted, for there is always presumption against the law makerintending injustice and unreason. The Court will avoid imputingto the Legislature an intention to enact provision which floutsnotions of justice and norms of fairplay, unless contrary intentionis manifest from words plain and unambiguous. The provision ina statute will not be construed to defeat its manifest purpose andgeneral values which animate its structure. In an avowedly

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

democratic polity, statutory provisions ensuring the security offundamental human rights including the right to property must,unless the mandate to precise and unqualified, be construedliberally so as to uphold the right. These rules apply to theinterpretation of constitutional and statutory provisions alike.”

And again:-

“141. … Article 363 prescribes limited exclusion of thejurisdiction of Courts, but that exclusion does not operate uponthe claim for Privy Purse, relying upon Article 291. The questionas to the jurisdiction of the Courts to entertain claim for paymentof Privy Purse did not fall to be determined in Nawab UsmanAli Khan case. The only question raised was whether the PrivyPurse was not capable of attachment in execution of the decreeof civil court, because of the specific exemption of politicalpensions under Section 60(1)(g) of the Code of Civil Procedure.In Kunvar Shri Vir Rajendra Singh case the Court did notexpress any opinion that Article 366(22) was provision relatingto covenant within the meaning of Article 363. In that case thepetitioner who was not recognised as Ruler by the Presidentabandoned at the hearing of his petition his claim to the PrivyPurse payable to the Ruler of Dholpur, and pressed his claim bysuccession under the Hindu Law to the Private property of theformer Ruler. The Court was not called upon to decide and didnot decide that Article 366(22) was provision relating to acovenant within the meaning of Article 363. It is difficult to regarda word or clause occurring in judgment of this Court, divorcedfrom its context, as containing full exposition of the law on aquestion when the question did not fall to be answered in thatjudgment.

142. In the view we have expressed, the argument raised by MrPalkhivala that even if clause (22) of Article 366 is provisionrelating to the covenants, the jurisdiction of this Court under Article32 to grant relief against an invalid exercise of power withdrawingrecognition of the Rulers is not barred, needs no consideration.

99. Presently, we may refer to the analysis of Article 363 as hasbeen made by the Constitution Bench in State of Tamil Nadu v. Stateof Kerala (supra). In the said case, the learned Chief Justice, speakingfor the Court, opined that plain reading of Article 363 leaves no manner

DEF

Aof doubt that if the dispute arises in respect of document of thatdescription and if such document had been executed before thecommencement of the Constitution, the interference by courts is barred.The documents referred to in Article 363 are those which are political innature. Any dispute regarding such documents is non-justiciable. Theobject behind Article 363 is to bind the Indian Rulers with treaties,Bagreements, covenants, engagements, “Sanads” or other similarinstruments entered into or executed before the commencement of theConstitution and to prevent the Indian Rulers from resiling from suchagreements as the integrity of India was to be maintained at all costsand could not be affected by raising certain disputes. Thereafter, theClarger Bench referred to the ‘White Paper’ on Indian States preparedby the Government of India in 1948 which brings out the historicalperspective which necessitated the adoption of the provisions in Article 363.

100. The Court reproduced passage from the ‘White Paper’which reads as under:-D“Article 363 has therefore been embodied in the Constitutionwhich excludes specifically the Agreements of Merger and theCovenants from the jurisdiction of courts except in cases whichmay be referred to the Supreme Court by the President”.

101. After so stating, the Court referred to Article 131 that dealsEwith the original jurisdiction of this Court and proceeded to state:-

“74. There is similarity of provision in Article 363 and proviso toArticle 131. The original jurisdiction conferred on this Court bythe main provision contained in Article 131 is excepted by virtueof the proviso in the matters of political settlements. By makingFprovisions such as Article 363 and proviso to Article 131, thepolitical settlements have been taken out of the purview of judicialpronouncements. Proviso appended to Article 131 renders adispute arising out of any treaty, agreement, covenant,engagement, sanad or similar instrument which is political in natureexecuted before the commencement of the Constitution andGwhich has or has been continued in operation, non-justiciableand jurisdiction of this Court is barred. The jurisdiction of thisCourt is not taken away in respect of the dispute arising out ofan ordinary agreement. The instruments referred to and describedin the proviso are only those which are political in nature. Non-Hpolitical instruments are not covered by the proviso.”

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102. Be it noted, the larger Bench has referred to the decision inVirendra Singh (supra) and opined thus:-

“70.2. The exposition of above legal position by the ConstitutionBench hardly admits of any doubt. Obviously, the accession ofan Indian State to the Dominion of India and acceptance of it bythe Dominion are acts of State and jurisdiction of the courts togo into its competency or settle any dispute arising out of themare clearly barred under Article 363 and the proviso to Article131. As we have already held—and that is what has been heldin the 2006 judgment as well—that the 1886 Lease Agreementis an ordinary agreement and that it is not political in nature, theembargo of Article 363 and the proviso to Article 131 have noapplication.”

And again:-

“76. We are in complete agreement with the view taken by thisCourt in Mullaperiyar Environmental Protection Forum thatthe 1886 Lease Agreement would not come within the purviewof Article 363 and jurisdiction of this Court is not barred. As anecessary corollary, the dispute arising out of the 1886 LeaseAgreement is not barred under Article 131 proviso as well.Moreover, the principal challenge laid in the suit pertains to theconstitutional validity of the 2006 (Amendment) Act for whichArticle 363 or for that matter under Article 131 proviso does notcome into operation at all.”

103. On perusal of the aforesaid, it seems to us that there is nodiscord or lack of concord with the view expressed in State of Seraikella(supra). We are persuaded to think so as the Constitution Bench in theearlier case was dealing with different kind of instrument which wasindubitably of political character entered prior to coming into force ofthe Constitution.

104. In the case of Madhav Rao Scindia (supra), the sphere ofadjudication was absolutely different. In the case at hand, the agreementsin question relate to the sphere of water sharing, irrigation, etc. and havenothing to do, even remotely, with the concept of sovereignty and integrityof India and, therefore, it will be erroneous to hold that the bar underArticle 363 of the Constitution would apply. It is so as both the agreementsbetween the States do not refer to any political element and cannot be

Atermed as political in character. The view expressed in State of Seraikella(supra), as already stated hereinbefore, related to an aspect of integrityor sovereignty of India and that is why, the bar operated. The bar underArticle 363 was not allowed to stand in Madhav Rao Scindia (supra)as it was dealing with constitutional claim of the Rulers relating toPrivy Purse and the same did not have any political characteristics. InBany case, the position has been absolutely made clear by the ConstitutionBench in State of Tamil Nadu (popularly known as Mullaperiyar damcase). Therefore, it can be stated, without desiring to give rise to anycontroversy and without fear of any contradiction, that the bar underArticle 363 is not applicable. The submission astutely advanced on behalfCof the State of Karnataka that the two agreements should not be lookedinto at all for the purpose of adjudication of the water dispute by theTribunal because of Article 262 of the Constitution is unacceptable.

J. Unconscionability of the 1892 and 1924 agreements

105. It is submitted by Mr. Nariman, learned senior counsel, thatDboth the 1892 and 1924 agreements are hit by the doctrine ofunconscionability as the Princely State of Mysore and the State of Madraswere on two different platforms. The State of Mysore was vassalState and had really no authority to speak on various aspects of theagreement. In fact, it had no power to bargain and it is reflectible whenEthe Secretary of State was able to set aside the binding award passed bythe learned Arbitrator. The agreements, contends Mr. Nariman, sufferfrom unconscionable bargain. Learned senior counsel is critical that theTribunal has not adverted to the principle of unconscionability at all anderroneously relied on the decision in New Bihar Biri Leaves Co. andothers v. State of Bihar and others[12] and arrived at the conclusion thatFthe agreement having been acted upon by both the parties in 1974, therewas an estoppel. He has referred to Section 16 of the Indian ContractAct and the commentary by Pollock and Mulla in the book (1[st] Edition,1905). The commentary commended reads as follows:-

“ “Unconscionable bargains” - Illustration (c) contemplates theGcase of person already indebted to money-lender contractinga fresh loan with him on terms on the face of themunconscionable. In such case presumption is raised that theborrower’s consent was not free. The presumption is rebuttable,but the burden of proof is on the party who has sought to makeH12 (1981) 1 SCC 537

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an exorbitant profit of the other’s distress. The question is not of”fraud, but of the unconscientious use of superior power.

[Emphasis Supplied]

106. He has also referred to the 8[th] Edition by M.C. Setalvad in1957 wherein it has been commented:-

“........ Relief in case of unconscionable bargains is an old headof English equity. It was formerly associated in special mannerwith sales of reversionary interests, which the Court was eagerto restrain; and for some time it was the doctrine of the Courtthat sale of any reversionary interest, if proved to have beenmade for only little under the value, must be set aside withoutfurther inquiry. This rule was at last found so inconvenient that itwas abolished by statute. But the general principles of equity indealing with what are called “catching bargains” remain, andthe third clause of the section now before us is apparently intendedto embody them.”

[Underlining is ours]

107. Apart from relying on the said provision and thecommentaries, he has also drawn inspiration from the authorities inCentral Inland Water Transport Corporation Limited and anotherv. Brojo Nath Ganguly & Another.[13]; O.P. Bhandari v. ITDC[14]; DelhiTransport Corporation v. D.T.C. Mazdoor Congress and others[15];and Balmer Lawrie & Company Limited and others v. Partha SarathiSen Roy and others (2J)[16]. He has also drawn our attention to theBlack’s Law Dictionary by Bryan Garner, Editor-Chief (10[th] Edition,Thomson Reuters) wherein unconscionability has been defined thus:-

“Unconscionability. 1. Extreme unfairness.

Unconscionability is normally assessed by an objective standard:(1) one party’s lack of meaningful choice, and (2) contractualterms that unreasonably favor the other party. 2. The principlethat court may refuse to enforce contract that is unfair oroppressive because of procedural abuses during contractformation or because of overreaching contractual terms, esp.13 (1986) 3 SCC 15614 (1986) 4 SCC 33715 1991 Supp. (1) SCC 60016 (2013) 8 SCC 345

Aterms that are unreasonably favorable to one party whileprecluding meaningful choice for the other party.”

108. passage from John Westlake International Law: Part-I.Peace, Cambridge University Press, 1910 has been commended to us.The said passage reads thus:-

“On the internal side, that is the relation of the native states tothe British power, the Government of India published the followingnotification in its official Gazette, No. 1700 E, 21 August 1891:

“The principles of international law have no bearing upon therelations between the Government of India as representingthe queen-empress on the one hand, and the native states underthe suzerainty of Her Majesty on the other. The paramountsupremacy of the former presupposes and implies thesubordination of the latter.”

And again :-D

“Thus India is world of itself. Not only is the action of allforeign states excluded from every part of it, but those partswhich are not included in the dominions of the king-emperor aresubject to suzerainty, paramountcy or supremacy possessedby him, to which nothing parallel exists in the relations of statesEof international law”.

109. Inspiration has also been drawn from the book Rivers inInternational Law (1959) by F.J. Berber, which states:-

“The Cauvery dispute between Mysore and Madras, settled in1925, was dispute between two territories of which one was aprovince of British India and the other was dependent princelystate under British suzerainty. The dispute was not settled by theapplication of international law but through an authoritativedecision of the sovereign power, or the British Crown. under itsgeneral responsibility to interfere in every matter in whichaccording to its estimation the public interest was threatenedwith injury. That means that it was typical case of the applicationof norms of municipal law. We can therefore extract nothingfrom it for our inquiry. Only one aspect in the dispute is significantfor international law, namely, the endeavour to protect the rightsof Karikal, at that time still French possession. After

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representations by the French Ambassador in London the IndianGovernment in its Note of May 1, 1924, was able to state thatthe existing water rights of Karikal would be safeguarded. Thisrecognition of the water rights of neighbouring colony is inharmony with Anglo- French practice in connection with waterrights in their African colonies.”

110. We have also been referred to passage from L. OppenheimInternational Law (8[th] Edition) which is extracted below:-

“91. The fact that the relation between the suzerain and thevassal always depends upon the special case, excludes thepossibility of laying down general rule as to the internationalposition of vassal States. The vassal State has no relations withother States since the suzerain absorbs these relations entirety;yet the vassal remains nevertheless half- sovereign State onaccount of its internal independence. This was the position ofthe Indian vassal States of Great Britain, which had nointernational relations whatever either between themselves orwith foreign States. Yet instances can be given which demonstratethat” vassal States can have some subordinate international”position.

111. Laying emphasis on the aforesaid passages, it is argued byMr. Nariman that the agreements are ex facie unconscionable and smackof absolute unfairness and unreasonableness because the parties werenot at arm’s length and they never did possess equal bargaining power.In Central Inland Water Transport Corporation Limited (supra), thetwo-Judge Bench referred to Sections 16, 23 and 24 of the Contract Actand quoted some relevant passages from Chitty on Contracts (25[th] Edition,Vol.I). We think it appropriate to extract the said passages:-

“These ideas have to large extent lost their appeal today.‘Freedom of contract’, it has been said, ‘is reasonable socialideal only to the extent that equality of bargaining power betweencontracting parties can be assumed, and no injury is done to theeconomic interests of the community at large’. Freedom ofcontract is of little value when one party has no alternativebetween accepting set of terms proposed by the other or doingwithout the goods or services offered. Many contracts enteredinto by public utility undertakings and others take the form of

set of terms fixed in advance by one party and not open todiscussion by the other. These are called ‘contracts d’adhesion’by French lawyers. Traders frequently contract, not onindividually negotiated terms, but on those contained in standardform of contract settled by trade association. And the terms ofan employee’s contract of employment may be determined byagreement between his trade union and his employer, or by astatutory scheme of employment. Such transactions arenevertheless contracts notwithstanding that freedom of contractis to great extent lacking.

Where freedom of contract is absent, the disadvantages toconsumers or members of the public have to some extent beenoffset by administrative procedures for consultation, and bylegislation. Many statutes introduce terms into contracts whichthe parties are forbidden to exclude, or declare that certainprovisions in contract shall be void. And the courts havedeveloped number of devices for refusing to implementexemption clauses imposed by the economically stronger partyon the weaker, although they have not recognised in themselvesany general power (except by statute) to declare broadly that anexemption clause will not be enforced unless it is reasonable.Again, more recently, certain of the judges appear to haverecognised the possibility of relief from contractual obligationson the ground of ‘inequality of bargaining power’.”

112. Thereafter, the learned Judges referred to the meaning ofAdhesion Contract and reproduced passage from Reinstatement ofthe Law—Second as adopted and promulgated by the American LawFInstitute, Volume II:-

“208. Unconscionable Contract or Term

If contract or term thereof is unconscionable at the time thecontract is made court may refuse to enforce the contract, orGmay enforce the remainder of the contract without theunconscionable term, or may so limit the application of anyunconscionable term as to avoid any unconscionable result.”

In the Comments given under that section, it is stated at page 107:

“Like the obligation of good faith and fair dealing (§ 205), thepolicy against unconscionable contracts or terms applies to

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wide variety of types of conduct. The determination that acontract or term is or is not unconscionable is made in the lightof its setting, purpose and effect. Relevant factors includeweaknesses in the contracting process like those involved in morespecific rules as to contractual capacity, fraud and otherinvalidating causes; the policy also overlaps with rules whichrender particular bargains or terms unenforceable on grounds ofpublic policy. Policing against unconscionable contracts orterms has sometimes been accomplished by adverseconstruction of language, by manipulation of the rules of offerand acceptance or by determinations that the clause iscontrary to public policy or to the dominant purpose of thecontract. Uniform Commercial Code § 2-302 Comment 1 .... Abargain is not unconscionable merely because the parties to itare unequal in bargaining position, nor even because the inequalityresults in an allocation of risks to the weaker party. But grossinequality of bargaining power, together with termsunreasonably favourable to the stronger party, may confirmindications that the transaction involved elements of deceptionor compulsion, or may show that the weaker party had nomeaningful choice, no real alternative, or did not in fact assent orappear to assent to the unfair terms.”

113. After referring to many authors and decisions, the Court cameto hold:-

“As seen above, apart from judicial decisions, the United Statesand the United Kingdom have statutorily recognised, at least incertain areas of the law of contracts, that there can beunreasonableness (or lack of fairness, if one prefers that phrase)in contract or clause in contract where there is inequalityof bargaining power between the parties although arising out ofcircumstances not within their control or as result of situationsnot of their creation. Other legal systems also permit judicialreview of contractual transaction entered into in similarcircumstances. For example, Section 138(2) of the German CivilCode provides that transaction is void “when person” exploits“the distressed situation, inexperience, lack of judgmental ability,or grave weakness of will of another to obtain the grant or promiseof pecuniary advantages ... which are obviously disproportionate

to the performance given in return”. The position according tothe French law is very much the same.”

114. After so stating, the Court posed the question as to whetherour Court should advance with time and, thereafter, referred to Article14 of the Constitution and ruled:-

“It will apply where the inequality is the result of circumstances,whether of the creation of the parties or not. It will apply tosituations in which the weaker party is in position in which hecan obtain goods or services or means of livelihood only uponthe terms imposed by the stronger party or go without them. Itwill also apply where man has no choice, or rather nomeaningful choice, but to give his assent to contract or to signon the dotted line in prescribed or standard form or to accept aset of rules as part of the contract, however unfair, unreasonableand unconscionable clause in that contract or form or rulesmay be. This principle, however, will not apply where thebargaining power of the contracting parties is equal or almostequal. This principle may not apply where both parties arebusinessmen and the contract is commercial transaction. Intoday’s complex world of giant corporations with their vastinfrastructural organizations and with the State through itsinstrumentalities and agencies entering into almost every branchof industry and commerce, there can be myriad situations whichresult in unfair and unreasonable bargains between partiespossessing wholly disproportionate and unequal bargaining power.These cases can neither be enumerated nor fully illustrated. Thecourt must judge each case on its own facts and circumstances.”

And again:-

“The types of contracts to which the principle formulated by usabove applies are not contracts which are tainted with illegalitybut are contracts which contain terms which are so unfair andunreasonable that they shock the conscience of the court. Theyare opposed to public policy and require to be adjudged void.”

115. We must note with profit that in the said case, the Court didnot accept the stand of the appellant-Corporation that it was an ordinarycontract entered by the employer with the employee but treated it as acontract with higher bargaining power by the Corporation with the

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

workmen and that the conditions incorporated in the contract were whollyunconscionable and against the public interest, for it had the tendency tocreate sense of insecurity in the minds of those to whom it applies andfurther it was against public good.

116. In Delhi Transport Corporation (supra), B.C. Ray, J. placedreliance on O. P. Bhandari (supra) which had followed the observationsmade in Central Inland Water Transport Corporation Limited (supra),and West Bengal State Electricity Board and others v. Desh BandhuGhosh and others[17] and came to the conclusion that it was impossibleto hold Regulation 9(b) of the Delhi Road Transport Authority (Conditionsof Appointment and Service) Regulations, 1952 as constitutional. Sawant,J. opined that the arbitrary rules are called Henry-VIII and the selfasserting reliance on the theory of high authority was unacceptable.The said decision has been pressed into service to highlight that themajority in the Constitution bench has accepted the principle laid downin Central Inland Water Transport Corporation Limited (supra) whichpertains to the bargaining power and how contract of employmentbecomes unconscionable.117. The aforesaid submission of Mr. Nariman has beenvehemently opposed by Mr. Dwivedi and Mr. Naphade, learned seniorcounsel appearing for the State of Tamil Nadu, on two counts, namely,that the “Standstill Agreement” executed by the State of Mysore allowedthe said agreement to continue and further, the agreement was notdenounced as required under the proviso to Section 7(1)(c) of the 1947Act. Though we have referred to the “Standstill Agreement” and quoteda portion of it, yet at this juncture, it is pertinent to reproduce the saidagreement along with the Schedule in entirety:-

“Agreement between the State of Mysore and the Dominion ofIndia.

WHEREAS it is to the benefit and advantage of the dominionof India as well as of the Indian States that existing agreementsand administrative arrangements in the matters of commonconcern, should continue for the time being, between theDominion of India or any part thereof and the India States:-

Now, therefore, it is agreed between the Mysore State andthe Dominion of India that:-

1. (1)Until new agreements in this behalf are made, allagreements and administrative arrangements as to matters ofcommon concern now existing between the Crown and any IndianState shall, in so far as may be appropriate, continue as betweenthe Dominion of India or, as the case may be, the part thereof,and the State.

(2) In particular, and without derogation from the generality ofsub-clause (1) of this clause the matters referred to above shallinclude the matters specified in the Schedule to this Agreement.

2. Any dispute arising out of this Agreement, or out of theagreements or arrangements hereby continued, shall unless anyprovision is made therein for arbitration by an authority otherthan the Governor General or Governor, be settled by arbitrationaccording, as far as may be, to the procedure of the IndianArbitration Act, 1899.

3. Nothing in this agreement includes the exercise of anyparamountcy functions.SCHEDULE

1.Air Communications

2.Arms and equipment

3.Control of commodities

4.Currency and coinage

5.Customs

6.Indian States Forces

7.External Affairs.

8.Extradition

9.Import and Export Control.

10.Irrigation and Electric Power

11. Motor Vehicles

12. National Highways

13. Opium

14. Posts, Telegraphs and Telephones

15. Railways

16. Salt

17. Central Excises, relief from double income-tax and otherarrangements relating to taxation.

18. Wireless.”

[Underlining is by us]

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

118. At this stage, we may also reproduce the proviso to Section7(1)(c) of the 1947 Act. It is as follows:-

“Provided that, notwithstanding anything in paragraph (b) orparagraph (c) of this subsection, effect shall, as nearly as maybe, continue to be given to the provisions of any such agreementas is therein referred to which relate to customs, transit andcommunications, -posts and telegraphs, or other like matters, untilthe provisions in question are denounced by the Ruler of theIndian State or person having authorityin the tribal areas on theone hand, or by the Dominion or Province or other part thereofconcerned on the other hand, or are superseded by subsequentagreements.”

[Emphasis Supplied]

119. On keen scrutiny of the evidence on record, there is noproof that the State of Mysore, at the relevant time, had denounced theagreement. We have already discussed the doctrine of paramountcyand how the same is not applicable to these categories of agreements.Mr. Nariman, learned senior counsel, would submit that automaticextinction of agreement because of evaporation of the doctrine ofparamountcy is one thing and applicability of the said principle to treatthe agreement as unconscionable is quite distinct aspect. As heldearlier, the agreements did not automatically come to an end either aftercoming into force of the 1947 Act or after coming into force of theConstitution because of the “Standstill Agreement” and further owing tothe fact that there had been no denouncement. The bargaining powermay not have existed in 1892 or 1924 but definitely, the said power tobargain or to choose came alive after the 1947 Act and, undoubtedly,after the Constitution came into being. However, the State of Karnatakachose not to do so. If we allow ourselves to say so, it chose not to riselike phoenix but, on the contrary, it maintained sphinx like silence at therelevant time. Therefore, we are not persuaded to accept the submissionthat the agreements should be declared as void because ofunconscionability.

K. Status of the agreements after coming into force of the StatesReorganization Act, 1956

120. Challenging the subsistence and continuance of theagreements, the next limb of submission of Mr. Nariman is that after the

Acoming into force of the States Reorganization Act, 1956, (for short “theReorganization Act’), the agreements became extinct for the newlyformed State of Mysore was not bound by the 1924 agreement since thePart State of Mysore had not entered into any agreement with theState of Madras. It is contended by him that the Part State of Mysorewas not the new State of Mysore and on careful reading of the variousBprovisions of the Reorganisation Act, it is abundantly clear that only therights, responsibilities, liabilities and obligations to be borne by the newState of Mysore find mention but the same has no reference to therights and obligations under the 1924 agreement. Elaborating further,learned senior counsel would contend that the rights and obligations underCthe 1924 agreement may have devolved upon the Part State of Mysorebut that would not be considered as an agreement made in exercise ofthe executive power by the said Part State of Mysore.

121. Mr. Nariman has referred to Section 7 of the ReorganisationAct to highlight that by reason of the provisions contained under SectionD7 of the said Act, the new State of Mysore cannot be treated as thesuccessor State in respect of the obligations of the Ruler of the IndianState of Mysore under the Agreements of 1892 and 1924. To appreciatethe said submission in proper perspective, we think it appropriate toreproduce the provisions. It reads as follows:-

E“Section 7. Formation of new Mysore State.%(1) As fromthe appointed day, there shall be formed new State to be knownas the State of Mysore comprising the following territories,namely:%

(a) the territories of the existing State of Mysore;

F(b) Belgaum district except Chandgad taluka and Bijapur,Dharwar and Kanara districts, in the existing State of Bombay;

(c) Gulbarga district except Kodangal and Tandur taluks, Raichurdistrict except Alampur and Gadwal taluks, and Bidar districtexcept Ahmadpur, Nilanga and Udgir taluks and the portionsGspecified in clause (d) of sub- section (1) of section 3, in theexisting State of Hyderabad;

(d) South Kanara district except Kasaragod taluk and AmindiviIslands, and Kollegal taluk of Coimbatore district, in the State ofMadras; and

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(e) the territories of the existing State of Coorg;

and thereupon the said territories shall cease to form part of thesaid existing States of Mysore, Bombay, Hyderabad, Madrasand Coorg, respectively.

(2) The territory comprised in the existing State of Coorg shallform separate district to be known as Coorg district, and thesaid Kollegal taluk shall be included in, and become part of,Mysore district, in the new State of Mysore.”

122. Learned senior counsel has emphasized on the amalgamationof various areas from various States and exclusion of some areas and,on that foundation, structured argument has been advanced that thesuccessor State cannot be held liable. Per contra, Mr. Dwivedi, learnedsenior counsel, would contend that the present case is not one where theterritory of Sovereign State got acceded to another Sovereign State.It is case for merger where situation obtained that the State of Mysorehad accepted the 1924 Agreement and it constitutionally remained incontinuance Part State under Article 295(2) of the Constitution.Formation of new States and alteration of areas, boundaries or names ofthe existing States under the parliamentary legislation did not alter therights and liabilities and continued to remain in force and binding uponthe successor State so long as they are not modified, changed orrepudiated. He has drawn distinction between statutory acceptanceand the recognition by the new State which can be explicit or implied.For the said purpose, he has pressed into service the decisions in M/s.Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income Tax[18],Amar Chand Butail v. Union of India and others[19]; and FirmBansidhar Premsukhdas v. State of Rajasthan[20]. Distinguishing theaforesaid issue, it is urged by him that the case at hand is not one wherethe Sovereign State has been acceded to or been annexed by anotherSovereign State and, therefore, the principles in State of Punjab & Ors.v. Balbir Singh & Ors.[21], Ranjan Sinha v. Ajay KumarVishwakarma[22], State of M.P. v. Bhopal Sugar Industries Ltd.[23]areapplicable.

18 AIR 1958 SC 81619 AIR 1964 SC 165820 AIR 1967 SC 4021 (1976) 3 SCC 24222 2017 (7) SCLAE 23423 1964 (6) SCR 846

CDE

A123. In Balbir Singh (supra), the erstwhile State of Punjab wasreorganized by the Punjab Reorganisation Act, 1966 and on the appointeddate, i.e., November 1, 1966, the former State of Punjab ceased to exist.The successor States of Punjab, Haryana and Union Territory ofChandigarh and the transferred territory came into being. Thecontroversy related to the service conditions of the respondents. TheBCourt referred to the dictionary clause and Section 88 of the 1966 Actand came to hold thus:-

“Law is defined in clause (g) of Section 2 of the Act to say:

“‘law’ includes any enactment, ordinance, regulation, order,bye-law, rule, scheme, notification or other instrument having,immediately before the appointed day, the force of law in thewhole or in any part of the existing State of Punjab;”.

We agree with the High Court that the impugned orders in questionwere not law within the meaning of Section 2(g) and hence were,in terms, not saved by Section 88. We think the High Court isright when it says:

“Section 88 appears to have been introduced as matter ofabundant caution. In my opinion, mere splitting up of the territoriesof Punjab into four successor States would not ipso facto resultin the abrogation or repeal of the laws which were immediatelyin force before the appointed day in those territories. There isnothing in the 1966 Act, not even in Section 88, which expresslyor by necessary intendment repeals the laws which were in forceimmediately before the appointed day in the territories of theformer Punjab. Those laws derived their force de hors the 1966Act. The first part of Section 88 is merely clarificatory of anydoubts which might arise as result of the reorganisation ofPunjab, while the latter part of this section is merely an adaptativeprovision, to the effect, that the territorial references in any suchlaw to the State of Punjab shall continue to mean the territorieswithin that State immediately before the appointed day. Thus,read as whole Section 88 merely dispels doubts as to thecontinuity of the laws which were in force before the appointedday in the former State of Punjab, until the competent legislatureor authority of the successor States effects any change in thoselaws”.”

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

And again:-

“In our judgment when there is no change of sovereignty and itis merely an adjustment of territories by the reorganization of aparticular State, the administrative orders made by theGovernment of the erstwhile State continue to be in force andeffective and binding on the successor States until and unlessthey are modified, changed or repudiated by the Governmentsof the successor States. No other view is possible to be taken.The other view will merely bring about chaos in the administrationof the new States. We find no principle in support of the standthat administrative orders made by the Government of theerstwhile State automatically lapsed and were renderedineffective on the coming into existence of the new successorStates.”

124. In Ranjan Sinha (supra), the controversy revolved aroundthe applicability of laws framed by the undivided State of Bihar with thenewly bifurcated State that have come into existence by virtue of theBihar Reorganisation Act, 2000 (for short, “the 2000 Act”). Thecontroversy also related to the service conditions. The issue arose beforethe High Court of Jharkhand as to which law was in force and eventually,on scrutiny of the Act, the High Court came to hold that:-

“6. division bench of the High Court of Jharkhand on elaborateconsideration of applicable provisions of the Act and BROA cameto the conclusion that Education Regulations, applicable to theerstwhile Bihar, are law for the new State of Jharkhand in termsof Sections 84 and 85 of the BROA and therefore unless personis qualified as per Education Regulations, cannot get himselfregistered. It was observed as under-

‘What is contended on behalf of the Petitioners is thatthe Pharmacy Act was extended to the State of Bihar hadnotified and adopted the Education Regulations issuedunder Section 10 of the Act which was in Part II of the Act,that both the Act and the Education Regulations hence constitutelaw for the purpose of the State of Jharkhand carved out ofthe modification of either the Education Regulations orthe Pharmacy Act by the competent Legislature, namely, theParliament, that no such attempt was also made by the State

of Legislature and in the Jharkhand and unless person wasqualified in terms of the Education Regulations, he could notget his name entered in the Register. We find considerableforce in this submission. It is true that the Jharkhand was carvedout with effect from 15.11.2000. By virtue of Section 84 of theBihar Reorganization Act, the Pharmacy Act and the EducationRegulations applied. In the absence of any modification,alternation or repeal of either the Act or the EducationRegulations by the competent Legislature, it could not bepostulated that the law had ceased to be in force merely on theformation of the State of Jharkhand. Section 84 of the BiharReorganization Act, in our view, is clear. Moreover, it is notpossible for the Court to contemplate law less State as itwere. If the argument of the Respondents were to be accepted,the position would be that there was no law relating to Pharmacyor regarding qualifications for getting recognition as aPharmacist in the State of Jharkhand and it is yet to be made.In other words, until the same is made there will be vacuum.Such an argument, unless compelled, can not be acceptable.The territories now forming the State of Jharkhand originallyformed part of the State of Bihar, were governed by the Actand the Education regulations promulgated and adopted in termsof Section 85 of the Bihar Reorganization Act. This scheme ofthe Reorganization Act is consistent with the general principlethat law once made applicable to territory will continue toapply to that territory unless its application is abrogated ordispensed with by the competent Legislature or authority or itsreplacement by any other law enacted in that behalf. Therefore,it is clear that Education Regulations promulgated under Section10 and adopted in terms of Section 11 of the Act to the territoryin question, continues to apply. There is also the stand adoptedby the Indian pharmacy Council in its additional counteraffidavit. We find the said stand sustainable in law’.”

125. Before this Court, it was contended that every State has tohave First Register of the pharmacists on its own as mandated inSections 30 and 31 of the Act which is an express provision and if theinterpretation given by the Court is accepted, the said provision willbecome redundant. Adverting to the provisions of the Act and the earlierHRegulations, two-Judge Bench held:-

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“25. The Article 3 of the Constitution inter alia, empowers theParliament by law to form new State by separation of territoryfrom any State or by uniting two or more States. Article 4 is tothe effect that the law made by the Parliament with referenceto Article 3 may contain supplemental, consequential andincidental provisions. When new State is formed by law madeby Parliament, whether the laws made by the existing State outof which new State is formed continue to apply to the territoriesincluded in the new State? When the existing State territory isreorganized by the Parliament there is no change in Sovereignty.It is only adjustment of territories by transferring some territoriesin the existing State to newly formed State. Therefore, all thelaws which were applicable to the territories of the re-organizedState would continue to apply to the territories transferred to thenew State until the latter either adapts or, subject to its competencyamends or repeals the existing and applicable laws.”

126. Be it noted, the Court placed reliance on Balbir Singh(supra) and Sher Singh and others v. Financial Commissioner ofPlanning, Punjab and others[24] and proceeded to rule:-

“35. When State as forming part of Indian nation is re-organized,in law in so far as application of laws is concerned, the followingthree things would happen namely; (i) the existing State (ParentState) which made various laws, would continue to exist; (ii) thenew State so formed by transferring some territories will bedeemed to be the territories of the parent State for the purposeof applicability of the laws; and (iii) those laws made by parentState shall continue to apply to new State until they are modifiedor amended by competent legislature in relation to new Stateand the ‘law’ as defined in the definition Clause would be thelaw which was in force in the existing State which would beenforceable in the newly formed State.

36. At the cost of repetition, we may mention that under Article3 of the Constitution the Parliament can alter, amend, amalgamate,form new States, diminish or increase area of State. Theprinciple of ‘clean slate’ as applicable in international law is notapplicable when reorganization takes place under Article 3 ofthe Constitution. 17 The reorganized States do not usually start

24 (1987) 2 SCC 439

Aas tabula rasa, rather they are successors of pre-existingerstwhile States. Under the BROA, the Jharkhand was carvedout of the Bihar and the two separate states came into existenceon 15.11.2000. If the laws in force were to lapse on the day thedivision was effected, chaotic situation would have emergedinasmuch as the newly created State would be rendered StateBwithout laws. To avoid such situation, provisions like Sections 84and 85 of BROA have been enacted to maintain continuity, andat the same time authorizing the States to make suchmodifications and adaptations as are considered necessary bymere issuance of orders within two years, and thereafter byClegislation.

37. As defined earlier ‘law’ includes ‘other instruments havingthe force of law’. In view of use of the word ‘includes’, thedefinition of ‘law’ under Section 2(f) shall be interpretedexhaustively. In view of the above discussion, we hold that theDFirst Register prepared by the Bihar has the force of law Supra,at 13 under Section 2(f) of the BROA.”

127. In the present case, the two provisions, namely, Sections107 and 119 of the Reorganization Act of 1956 unequivocally spell outthe continuance of the assets and liabilities. That apart, the new State ofEMysore after 1956 recognised and enforced the agreement and, in anycase, did not repudiate it. And in all possibilities, the State could nothave done it as it related to inter-State waters and the Parliament in theReorganisation Act did not make any law in that regard.

128. It may be noted here that the Tribunal has referred to SectionF2(m) defining “Principal Successors State”, Section 2(o) defining“successor State” and Section 5 to conclude that the State of Keralahad become the principal successor State to the erstwhile State ofTravancore-Cochin excluding the territories transferred to the State ofMadras and also successor State in respect of the territories whichwere transferred from Madras and, therefore, the agreements would beGbinding on it, as the Cauvery basin including the portion of rivers Kabiniand Bhawani were in the Malabar District, which had been transferredto it. It also referred to Section 87 of the Reorganisation Act, whereunderany contract made by an existing State before the appointed day in theexercise of its executive power was deemed to have been made in theHexercise of such power of the successor State or States or the principal

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

successor State, as the case may be. With reference thereto, the Tribunalanalyzed that the Agreements of 1892 and 1924 entered into by Madraswith the then State of Mysore were, therefore, deemed to have beenentered into on behalf of the areas which were within the territories ofthe State of Madras including the District of Malabar and, consequently,the rights and liabilities which had accrued to Madras as an existingState with regard thereto would be the rights and liabilities of the successorState, i.e., the State of Kerala. The Tribunal also concluded that theState of Kerala would be deemed to be bound by the terms and conditionsof the two Agreements so far as the sharing of the waters of riverCauvery was concerned.

129. The finding of the Tribunal is seriously assailed on behalf ofthe State of Karnataka on the ground that in State where differentboundaries came into existence, the agreements could not be allowed toremain in continuance. Sections 2(e), 2(j), 2(m) and 2(o), which arerelevant in the present context, read thus:-

“Section 2(e) “corresponding State” means, in relation to thenew State of Bombay, Madhya Pradesh, Mysore, Punjab orRajasthan, the existing State with the same name, and in relationto the new State of Kerala, the existing State of Travancore-Cochin;

(j) “notified order” means an order published in the OfficialGazette;

(m) “principal successor State” means—

(i) in relation to the existing State of Bombay, Madhya Pradesh,Madras or Rajasthan, the State with the same name; and

(ii) in relation to the existing States of Hyderabad, Madhya Bharatand Travancore Cochin, the States of Andhra Pradesh, MadhyaPradesh and Kerala, respectively;

(o) “successor State”, in relation to an existing State, means anyState to which the whole or any part of the territories of thatexisting State is transferred by the provisions of Part II, andincludes in relation to the existing State of Madras, also thatState as territorially altered by the said provisions and the Union;”

130. Section 108 which has been relied upon by Mr. Dwivedi,learned senior counsel for the State of Tami Nadu, is as follows:-

“Section 108. Continuance of agreements andarrangements relating to certain irrigation, power or multi-purpose projects.%(1) Any agreement or arrangement enteredinto between the Central Government and one or more existingStates or between two or more existing States relating to

(a) the administration, maintenance and operation of anyproject executed before the appointed day, or

(b) the distribution of benefits, such as, the right to receiveand utilise water or electric power, to be derived as result ofthe execution of such project,

which was subsisting immediately before the appointed day shallcontinue in force, subject to such adaptations and modifications,if any (being of character not affecting the general operationof the agreement or arrangement) as may be agreed uponbetween the Central Government and the successor Stateconcerned or between the successor States concerned, as thecase may be, by the Ist day of November, 1957, or, if noagreement is reached by the said date, as may be made thereinby order of the Central Government.

(2) Where project concerning one or more of the existing Statesaffected by the provisions of Part II has been taken in hand, butnot completed, or has been accepted by the Government of Indiafor inclusion in the Second Five Year Plan before the appointedday, neither the scope of the project nor the provisions relating toits administration, maintenance or operation or to the distributionof benefits to be derived from it shall be varied,

(a) in the case where single successor State is concernedwith the project after the appointed day, except with the previousapproval of the Central Government, and

(b) in the case where two or more successor States areconcerned with the project after that day, except by agreementbetween those successor States, or if no agreement is reached,except in such manner as the Central Government may byorder direct,

and the Central Government may from time to time give suchdirections as may appear to it to be necessary for the due

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

completion of the project and for its administration, maintenanceand operation thereafter.

(3) In this section, the expression” project” means project forthe promotion of irrigation, water supply or drainage or for thedevelopment of electric power or for the regulation ordevelopment of any inter- State river or river valley.”

Section 119 of the Reorganisation Act, 1956 reads as under:-

“Section 119. Territorial extent of laws.¯The provisions ofPart II shall not be deemed to have effected any change in theterritories to which any law in force immediately before theappointed day extends or applies, and territorial references inany such law to an existing State shall, until otherwise providedby competent Legislature or other competent authority, beconstrued as meaning the territories within that State immediatelybefore the appointed day.”

131. Impressing thereon, it is submitted by Mr. Dwivedi that theaforesaid provisions by operation of law made the 1924 Agreementrecognisable and implementable. According to him, the rights andliabilities under the 1924 Agreement are constitutionally continued withand vest in Mysore as Part State under Article 295(2) of the Constitution.Article 295 reads as under:-

“Article 295. Succession to property, assets, rights,liabilities and obligations in other cases

(1) As from the commencement of this Constitution

(a) all property and assets which immediately before suchcommencement were vested in any Indian State correspondingto State specified in Part of the First Schedule shall vest inthe Union, if the purposes for which such property and assetswere held immediately before such commencement willthereafter be purposes of the Union relating to any of thematters enumerated in the Union List, and

(b) all rights, liabilities and obligations of the Government ofany Indian State corresponding to State specified in Part Bof the First Schedule, whether arising out of any contract orotherwise, shall be the rights, liabilities and obligations of the

Government of India, if the purposes for which such rightswere acquired or liabilities or obligations were incurred beforesuch commencement will thereafter be purposes of theGovernment of commencement will thereafter be purposes ofthe Government of India relating to any of the mattersenumerated in the Union List,

subject to any agreement entered into in that behalf by theGovernment of India with the Government of that State

(2) Subject as aforesaid, the Government of each State specifiedin Part of the First Schedule shall, as from the commencementCof this Constitution, be the successor of the Government of thecorresponding Indian State as regards all property and assetsand all rights, liabilities and obligations, whether arising out ofany contract or otherwise, other than those referred to in clause (1).”

132. Emphasis has been laid on Article 295(2). According to Mr.DDwivedi, under the Reorganisation Act, the existing rights and liabilitiesand the existing laws continue to be enforced and continue to be bindingupon the successor State so long as they are not modified, changed orrepudiated by the successor State. It is his further submission that in thecase of Mysore, the territories of Part Mysore and Coorg alone are inthe Cauvery Basin and the laws operating in part Mysore qua sharingEof Cauvery waters secured for Mysore under the 1924 Agreement wouldcontinue. If the interest of Coorg was to be secured after the formationof new Mysore State, the provisions of Sections 107 and 119 coveredthe same. He has propounded that neither the Union Government northe State of Mysore acted otherwise and the agreement continued toremain in force.F

133. We may clearly state here that nothing has been brought onrecord to show that any dispute was raised after the Reorganisation Actby the newly formed States to controvert the agreement. As the factsclearly depict, it continued. Mr. Dwivedi, in this regard, would contendGthat the State of Karnataka had waived its right to question the legaltenability of the agreement and keeping in view the concept of waiver,the Tribunal has also adverted to the same and accepted. We do notthink that this aspect needs to be reverted to, for it remains fact thatboth the agreements with the Regulations remained in force despitecoming into effect of the Reorganisation Act, 1956.H

L. Issue relating to expiry of the agreements

134. It is submitted by Mr. Nariman, learned senior counsel, thatthe 1924 Agreement was not an agreement requiring positive oraffirmative act by either of the states to go ahead with revocation but,on the contrary, to arrive at common consensus for its continuanceand if the clauses of the Agreement are studiedly scrutinized orappreciated as an instrument as whole, its life span is 50 years and thesame could not have continued, by any stretch of imagination, after theexpiry of the stipulated period. He would argue that the ConstitutionBench in the Presidential Reference has twice stated that both theagreements have expired and no application for review or modificationwas filed by the State of Tamil Nadu and rightly so, as anyone connectedwith the agreement was well aware that the agreements stood expired.The said submission of Mr. Nariman is seriously resisted by Mr. Naphadeand Mr. Dwivedi, learned senior counsel, on the foundation of thePresidential Reference answered in In Re: Presidential Reference(Cauvery Water Disputes Tribunal) (supra). It is further urged thatthe issue did not arise as regards the expiry of the agreements and theCourt has not addressed to it and, therefore, it cannot be regarded ortreated as decision on the said issue. Learned senior counsel wouldcontend that merely because the expression has been used that theagreements had expired, that should not be given the status of the ratioof the judgment.135. The second plank of the argument of Mr. Nariman in thisregard is that even assuming that the decision of the Constitution Benchis not treated as binding for the purpose of expiration of the term of theAgreement, the clauses in the Agreement explicitly show that the 1924Agreement comes to an end after the expiry of 50 years. For the saidpurpose, emphasis is laid on the language employed in Clause 10(xi) ofthe Agreement. We have already reproduced the agreement and,therefore, at this stage, it is apt to reflect on how the Tribunal hasunderstood the Agreement. On reading of the award, it is noticeablethat the Tribunal has analyzed in detail the various clauses of the saidAgreement with the mutual rights and obligations as specified thereinand focused, in particular, on clause 10 (xi) which contemplated processof reconsideration on the expiry of 50 years from the date of its execution.

136. The Tribunal, in the context of the rival contentions on thesubsistence or otherwise of the Agreement on the expiry of 50 years

Afrom its execution, minutely noted that undisputedly there had been nore-consideration by the two States on the question of modification oraddition in respect of the different terms and conditions as mentionedtherein, after the said period. It referred as well to the plea of the Stateof Tamil Nadu that as per clause 10(xi), the reconsideration, if any, waslimited only to the stipulations in clauses 10(iv) to 10(viii) and not quaBclause 10(ii) which enjoined the Mysore Government to regulate thedischarge to and from the Krishna Raja Sagara reservoir strictly inaccordance with the Rules of Regulation set for in Annexure I thereto.The Tribunal, however, on scrutiny of the relevant clauses and on ajuxtaposition thereof, negated the said plea and held that clause 10(ii)Cwas inter-linked with clauses 10(iv) to clause 10(viii) and could not bedissociated from each other. In arriving at this determination, the Tribunalnoted the areas of irrigation permitted to be undertaken by the twoGovernments with the liberty to extend the same subject to the ceiling asmentioned and laid emphasis on the enjoinments contained in clause10(vii) in particular and held that if after 50 years in terms of clauseD10(xi), the limitation and arrangements specified in clause 10(iv) to clause10(viii) were to be considered, then the limitations prescribed by therules of regulation for Krishna Raja Sagara reservoir forming Annexure1 of the Agreement and alluded to in clause 10(vii) could not be excludedfrom the purview of such reconsideration. The Tribunal thought thatEthis is more so as in terms of clause 10(vii), the Mysore Government hadagreed that extension of irrigation in its territories as specified in clause(iv) would be carried out only by means of reservoirs constructed onthe River Cauvery and in its tributaries mentioned in Schedule of the1892 Agreement; such reservoirs were to be of an effective capacity of45,000 million cubic ft. in aggregate; impounding therein was to be soFregulated as not to make any material diminution in supply recorded bythe gauge accepted in the Rules of Regulation for the Krishna RajaSagara reservoir forming Annexure I to the Agreement and the rules forworking such reservoirs were to be so framed as to reduce any lossduring the impounding period within 5%, by adoption of suitable proportionGfactors, impounding formula or such other means as was to be settled.The Tribunal referred to the notes of arguments produced on behalf ofthe State of Tamil Nadu before it which indicated that the average inflowinto Mettur for 38 years from 1934 - 1935 was 377.1 TMC serviced bythree sources with the following break ups:

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“(i) From KRS, as per Rules of Regulation of KRS Annexure 1of 1924 Agreement - 159.780 TMC

(ii) From Kabini

- 112.615 TMC

(iii) Contribution for intermediate catchment below KRS andbelow Hullahalli Anicut in Kabini including 25 TMC fromcatchment area above Mettur in Tamil Nadu

- 104.746 TMC

Total – 377.141 TMC”

137. It observed that if reconsideration was to be limited only tothe arrangement as set out in clauses 10(iv) to (viii), then the logicalconsequence would be that in the event of any modification, it would notbe possible for the State of Karnataka to comply with the requirementof clause 10(ii) read with Rules 7 and 10 of the Rules of Regulation onlyon the basis of discharge from Krishna Raja Sagara reservoir. TheTribunal, thus, held that whenever dispute was raised, it was to beexamined in the light of the conditions prescribed not only in clauses 10(iv) to 10 (viii) but also in the light of the obligation and mandate provided onthe part of the State of Mysore/Karnataka to follow the Rules of Regulationfor Krishna Raja Sagara reservoir as contained in clause 10(ii).

138. On the plea that the 1924 Agreement, in the absence ofreconsideration, as envisaged in clause 10(xi), had expired, an eventualitynoticed by this Court in In Re: Presidential Reference (Cauvery WaterDisputes Tribunal) (supra) wherein the validity of the Karnataka CauveryBasin Irrigation Protection Ordinance 1991 had been laid for scrutiny ina reference under Article 143 of the Constitution, the Tribunal apartfrom observing that the question of subsistence or otherwise of theAgreement was not an issue before this Court in the said reference, alsomarked that in the complaint before it under adjudication, the principalgrievance of the State of Tamil Nadu was contravention and violationof the terms thereof which, according to it, remained in force even afterthe expiry of 50 years from the execution thereof. It also referred, theinitiatives and endeavours of the two States in this regard with theintervention of the Union Minister for Irrigation and Power and theparticipation of the Chief Ministers of Tamil Nadu, Mysore and Keralaalong with others for an amicable resolution of the lingering differenceswhich, inter alia, contemplated fact finding Committee of Engineers,agricultural experts, retired Judges, etc. to collect data pertaining to

ACauvery waters, its utilization and irrigation practices and to examinethe adequacy of the supplies or excessive use of water for irrigationpurposes to be placed for further discussions to arrive at an agreedallocation of waters for the respective States. The Tribunal underlinedthat nowhere in the discussions, it had been the stand on behalf of theState of Mysore that after 50 years of the execution of the Agreement,Bit would expire and as such there would be no question of reviewing theterms thereof.

139. The plea of the State of Mysore that the proviso to clause10(xiv) per se spelt the automatic termination of the whole of theAgreement after the expiry of 50 years, was negatived in view of theCinterplay of clauses 10 (xiv) and (xi).

140. The Tribunal, as we find, has accepted the plea and stand ofthe State of Tamil Nadu that the 1924 Agreement did not expire in 1974.

141. It is necessary to reflect on the finding of the Tribunal on thisscore. The Tribunal noticed the rival orientations of the two States withDregard to the status of the Agreement on the expiry of 50 years from thedate of its execution. It recorded the stand of the State of Karnatakathat the agreement expired after the expiry of the period of 50 yearsfrom the date of its execution so much so that none of the clauses thereinwere enforceable in respect of discharges to be made from KrishnaERaja Sagara and other reservoirs of the tributaries of Cauvery whichwere under construction in Karnataka. It took note of the contrary pleaof Tamil Nadu that the agreement was permanent in nature and that allthe terms therein were binding on Mysore, that is on the State ofKarnataka in respect of the operation of Krishna Raja Sagara and otherFreservoirs constructed on the tributaries of river Cauvery. The Tribunalrecorded the plea of the State of Karnataka that not only the Agreementof 1924 expired in the year 1974 but also the terms of the Agreementdated 1892 as well as of 1924 were arbitrary in nature and inequitablebetween the State of Madras which was then Presidency State and assuch part of the British Territory and the State of Mysore which wasGthen under the Ruler. Tracing the history of the two agreements andthat of 1924 in particular, the Tribunal was of the view that the latteragreement was entered into only after the terms thereof had been fullyexamined by the two States with special attention to the aspect as towhether the new irrigation reservoir was likely to diminish the flow ofHriver Cauvery to the territory of Madras State in any manner. In the

context of the cavil of the State of Karnataka that the then State ofMysore had to enter into both the agreements under some compulsionsand that the stringent stipulations contained therein, amongst others,defining the limits under which no irrigation works were to be constructedby Mysore without the previous consent of Madras and that the rigorousrestrictions in respect of impounding of water of Krishna Raja Sagaraas well as other reservoirs to be constructed on the tributaries of riverCauvery with the rider of maintaining minimum flow of Cauvery at theUpper Anicut so as to maintain height of water level ranging between3 ft. to 7 ½ ft. during January to June did spell great hardship, the Tribunaldelved into the time phase chapter pertaining to the Treaty of 1799 enteredinto between the then East India Company and the Maharaja of Mysorewhereupon the possession of the Mysore State was handed over to thethen Maharaja. It marked, inter alia, the undertaking of the thenMaharaja of Mysore that he would abstain from any interference in theaffairs of any state in alliance with the English Company Bahadur andwould not enter into any communication or correspondence with anyforeign State without the previous knowledge or sanction of any EnglishCompany Bahadur. The Tribunal noted as well the similar restrictions inthe Instrument of Transfer of 1881, apart from preserving in the GovernorGeneral in Council, several powers including the one to resume possessionof the said territories and to assume direct administration thereof.142. While noticing the plea of Karnataka that after the Treaty of1799, with the advent of East India Company as well, the administrationof Mysore had been taken away by it, and the possession of the Statewas eventually handed over to the then Maharaja on 25.03.1881, andthat thus the British Crown was apparently exercising its paramountpower over the ruling State of Mysore for which, as feudatory State, itwas really under compulsion to subject itself to the constraints prescribedunder the Agreement, the Tribunal observed that InternationalAgreements as well as Inter-state Agreements cannot be examined at alater stage on the touchstone of whether the terms were just and proper,keeping the interest of both the Nations or the States at the time ofexecution thereof. While acknowledging that sometimes, compulsionsexisting at the time of execution of the Agreements may be factors foradopting the spirit of give and take on the part of one Nation or theState, it concluded qua the Agreements of 1892 and 1924 that thosecould not be challenged as being done after lapse of more than 100years so far as the Agreement of the year 1892 is concerned and 80

Ayears qua the Agreement of 1924 by the State of Karnataka being thesuccessor of the interest of the State of Mysore. The Tribunal recordedthat this was more so as the State of Mysore/Karnataka had compliedwith the terms of the Agreements scrupulously and religiously up to1974 and the dispute surfaced only after the expiry of the period of 50years as contemplated in Clause 10(xi) of the Agreement of 1924. ItBremarked as well that on the basis of the Agreement of 1924, the Stateof Mysore/Karnataka not only constructed the Krishna Raja SagaraProject but also other reservoirs on the tributaries of Cauvery within itsterritories for total capacity of 45,000 million cubic ft. (45 TMC) andthereby derived the benefit of construction of those reservoirs on theCriver Cauvery and its tributaries and, thus, it cannot be allowed to repudiatethe agreements on the principle of “qui approbat non reprobat” (onewho approbates cannot reprobate). The Tribunal construed that thoughan agreement can be challenged in terms of Section 19A of the IndianContract Act, yet the party concerned had to satisfy the Court at theappropriate stage that its consent was obtained by coercion, fraud,Dmisrepresentation or undue influence and that noticeably, during the periodof more than 50 years since 18.02.1924, after which according to theState of Karnataka, the said Agreement had come to an end, it did neverallege before any court of law that the said Agreement was either voidableor that it was not bound by it for any of the infirmities as envisaged inESections 19 and 19A of the Indian Contract Act. It recalled inreinforcement of this view the backdrop of the Agreement which evincedthat the competent authorities on behalf of both the States, after properapplication of mind and discussion, had endorsed and executed both thesedocuments and, thus, these could not be ignored and discarded being notvoid in the eye of law.F

143. The aforesaid finding of the Tribunal is seriously found faultwith by Mr. Nariman on the ground that the Tribunal should haveproceeded on the basis of the language employed in the instrument.Regard being had to the said submission, we think it appropriate toreproduce Clause 10(xi), though it has already been extractedGhereinbefore:-

“10 (xi) The Mysore Government and the Madras Governmentfurther agree that the limitations and arrangements embodied inclauses (iv) to (viii) supra shall at the expiry of fifty years fromthe date of the execution of these presents, be open toH

reconsideration in the light of the experience gained and of anexamination of the possibilities of the further extension ofirrigation within the territories of the respective Governmentsand to such modifications and additions as may be mutually agreed”upon as the result of such reconsideration.

[Underlining is ours]

144. The said clause requires studied scrutiny. It stipulates thatboth the States agreed that the limitations and arrangements embodiedin Clauses (iv) to (viii) shall, at the expiry of 50 years from the date ofexecution, be open to reconsideration in the light of the experience gainedand upon examination of the possibilities of further extension of irrigationwithin the territories of the respective States be subject to suchmodification and additions as may be mutually agreed upon as the resultof such reconsideration. The submission of Mr. Nariman and Mr. Katarkiappearing for the State of Karnataka is that the postulates in the clausehave to be read as whole and not in truncated sense. According tothem, the stipulations in Clauses (iv) to (viii) would be open forreconsideration taking into stock certain facts and circumstances andonly thereafter, the modification and additions can be mutually agreedto. Emphasis is laid on the word ‘reconsideration’. It is also argued bythem that the stipulation in Clause (xi) cannot be restricted to Clauses(iv) to (viii) as those clauses constitute the spine of the Agreement. It istheir argument that the other clauses in the Agreement are sointerdependent with the mentioned clauses that the others cannot beexcluded or eschewed. The intention of the parties is quite clear that theexperience has to be seen in 50 years and thereafter, the whole thing isto be called for reconsideration and reconsideration cannot be unilateralor, for that matter, automatic.

145. Controverting the same, it is urged by Mr. Naphade and Mr.Dwivedi, learned senior counsel for the State of Tamil Nadu, that theclause applies in part essentially what has been mentioned therein andcannot cover the whole agreement. They emphasized on the words thatthe life of the Agreement is not limited to 50 years but only meant forreconsideration for the purpose of reexamination and that does not putan end to the Agreement.

146. Having perused the clause in entirety and considering thewords, namely, ‘reconsideration’, mutually agreed upon’ and ‘be opento’, it is clear that certain clauses in the Agreement had restricted life span.

A147. We are inclined to think so inasmuch as the relevant clauseswhich are open to reconsideration are absolutely essential parts of thecontract and it is extremely difficult to place appropriate construction onthe contract without them. The clauses in the contract do not indicatepermanency but, on the contrary, indicate fixed term and that is how weintend to construe the same. The continuance of contract, as we find,Bwas further subjective consideration and merely agreed upon and,therefore, to hold that it continued solely because of the experiencegathered would not be appropriate and it would be contrary to the conceptof understanding the clauses in contract to give effect to its continuance.The continuance after 50 years was dependent on certain aspects and,Ctherefore, we have no hesitation in holding that the agreement expiredafter 50 years. The submission on behalf of the State of Tamil Nadu isthat the obligations of the contract continued but, in this context, it isworth noting that the parties to the agreement had entered intocorrespondence with the Central Government agitating their grievancesand they met at the various levels to discuss and to arrive at an acceptableDarrangement. That not having been accepted, the complaint was lodged.Taking into consideration the entire conspectus of facts andcircumstances, we hold that the agreement expired after 50 years in theyear 1974.

M. Did the complaint not require any adjudication?E

148. It is submitted by Mr. Nariman that the manner in which thecomplaint had been lodged and request had been made for referringthe dispute that had arisen between the States of Karnataka and TamilNadu was not statutorily entertainable. According to him, the foundationof the complaint is the 1892 and 1924 Agreements and once they areFtreated to have expired, in the absence of any other aspect being statedin the complaint, it does not call for an adjudication by the Tribunal despitethe matter having been referred to the Tribunal for adjudication. Tobolster the said stand, he has relied upon the language employed in Section3 of the 1956 Act. Section 3 of the 1956 Act reads as follows:-G“3. Complaints by State Governments as to water disputes.—Ifit appears to the Government of any State that water disputewith the Government of another State has arisen or is likely toarise by reason of the fact that the interests of the State, or ofany of the inhabitants thereof, in the waters of an inter-Stateriver or river valley have been, or are likely to be, affectedHprejudicially by—

(a) any executive action or legislation taken or passed, or proposedto be taken or passed, by the other State; or

(b) the failure of the other State or any authority therein toexercise any of their powers with respect to the use, distributionor control of such waters; or

(c) the failure of the other State to implement the terms of anyagreement relating to the use, distribution or control of suchwaters,

the State Government may, in such form and manner as may beprescribed, request the Central Government to refer the waterdispute to Tribunal for adjudication.”

149. Relying on the said provision, it is urged by Mr. Nariman thatthere is no assertion with regard to either the State of Tamil Nadu or itsinhabitants being prejudicially affected in any other manner except theagreement and, then, the conditions precedent as postulated in clauses(a), (b) and (c) of Section 3 are not met with. He has referred to issues8, 10, 40 and 43 by the Tribunal on prejudicial affectation and stated thatthe Tribunal has not recorded any finding that the State of Tamil Naduhas been prejudicially affected within the sphere of Section 3. On thecontrary, it has held that the issue regarding prescriptive right of Madrashas become academic and the injury caused to each State at one stageor the other by the conduct of the other State has become matter ofhistory and it is not easy to assess any injury in an irrigation dispute.Learned senior counsel would further submit that the State of TamilNadu did not plead for claim to any right which is conferred on it bythe two agreements either in its complaint or on the statement of casebefore the Tribunal. The complaint deserves to be dismissed in theabsence of proven injury. Mr. Naphade and Mr. Dwivedi, learned seniorcounsel being assisted by Mr. G. Umapathy, learned counsel, in theirturn, would contend with vehemence that such contention at this stageis absolutely specious and should not engage the attention of this Courteven for moment. They would submit that the series of meetings andthe correspondence that had commenced in the beginning of the 70s ofthe last century would speak eloquently about the inhabitants beingprejudicially affected and further the various issues raised clearly expositthe grievances of the inhabitants of the State of Tamil Nadu. Additionally,it is contended by them that even if finding is returned that the agreementshave expired, rights had been created under the agreements and till they

978SUPREME COURT REPORTS

Aremain in force and also thereafter till the date of reference and more sowhen such plea was not raised when reference was made to thisCourt under Article 143 of the Constitution, the said plea should benegatived.

150. The aforesaid submission advanced by the State of KarnatakaBshould not detain us for long. On perusal of the complaint, it does notcontain the words “prejudicially affected’ but the antecedents of thecomplaint, the view of the Central Government while referring waterdispute and the expression of opinion of this Court In Re: PresidentialReference (Cauvery Water Disputes Tribunal) (supra). In the backdropof the language of the 1956 Act, the expiration by the efflux of time andCthe role of this Court, we are not inclined to entertain such plea. Wemust say without any hesitation that it may, in the first blush, have thepotentiality to invite the intellectual interaction but the same fails to gainsignificance when one perceives the controversy from broaderperspective and the various orders passed from time to time by theDTribunal and by this Court. Therefore, the matter deserves to beadjudicated on merits.

N. The approach adopted by the Tribunal post 1974 andcorrectness of the same

151. On perusal of the award, it appears that the Tribunal, afterEcoming to hold that the 1974 agreement is valid which we have notaccepted, noted the submissions of the State of Karnataka, Tamil Naduand Kerala and Union Territory of Puducherry. The State of Karnataka,on 10.07.2002, has made the following submissions before the Tribunalwhich is to the following effect:-F“60. The State of Karnataka in its Note KAR 3, page 10, filedon 10.07.2002, has taken the stand that “any future determinationpost-1974 would have to be made on the following basis:-

(a) how much water is needed to irrigate the areas to whichTamil Nadu and Karnataka are entitled, under the Agreement;Gand

(b) how should the surplus be divided and distributed for theplanned areas of Karnataka and for the areas cultivated by TamilNadu (outside the Agreement of 1924). It is respectfully submittedthat all areas contemplated to be irrigated under the Agreement

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of 1924 are concerned – whether by Tamil Nadu or by Karnataka,they have first to be taken into account as committed uses orexisting uses. The remaining areas should be considered on theprinciples of equitable apportionment that are well settled and onthe evidence led before this Hon’ble Tribunal.”

152. The Tribunal, which had taken the view that the Agreementsof 1892 and 1924 are valid and enforceable, alternatively suggested theapportionment of Cauvery waters on the following basis:-

“(i) Protection of irrigated areas as existing prior to 1924 both inKarnataka as well as Tamil Nadu.

(ii) The development of irrigation as contemplated in the 1924agreement but actually developed before 1974.

(iii) All other development to be considered as per differentpriorities suggested by them, indicated later on in the report.”

153. After so noting, the Tribunal opined that before therequirement of water is examined, the two States have to determine theareas which have been adopted by the two States. The areas where theStates of Karnataka, Tamil Nadu and Kerala and Union Territory ofPuducherry have to be served by the Cauvery System for irrigation arerequired to be considered. The principles for consideration wereformulated by the Tribunal which are as follows:-

“(i) Areas which were developed before the agreement of theyear 1924

(ii) Areas which have been contemplated for development interms of the agreement of the year 1924.

(iii) Areas which have been developed outside the agreementfrom 1924 upto 2.6.1990, the date of the constitution of theTribunal. (i.e. from 1924 to 1990)

(iv) Areas which may be allowed to be irrigated on the principleof equitable apportionment.”

154. On perusal of the aforesaid, it is noticed that the Tribunalhas taken the cut-off date as 02.06.1990, the date on which the reference/complaint was made. In the course of the hearing, learned counsel forall the parties accepted that they do not have any kind of quarrel overthe determination by the said date.

A155. Having stated thus, we have to analyze the approach adoptedby the Tribunal on the basis of the same. Prior to that it is necessary toreflect on what the Court has said in the Presidential Reference. At thisstage, we must note with profit that the Court had noted that the 1924Agreement had expired. After the Court held that the agreement hadexpired and further that the legislation passed by the State of KarnatakaBwas ultra vires, it proceeded to state thus:-

“71. It will be pertinent at this stage also to note the true legalposition about the inter-State river water and the rights of theriparian States to the same. In State of Kansas v. State ofColorado the Supreme Court of the United States has in thisconnection observed as follows:

“One cardinal rule, underlying all the relations of the Statesto each other, is that of equality of right. Each State stands onthe same level with all the rest. It can impose its own legislationon no one of the others, and is bound to yield its own views tonone … the action of one State reaches, through the agency ofnatural laws, into the territory of another State, the question ofthe extent and the limitations of the rights of the two Statesbecomes matter of justiciable dispute between them and thisCourt is called upon to settle that dispute in such way as willrecognise the equal rights of both and at the same time establishjustice between them.

The dispute is of justiciable nature to be adjudicated bythe Tribunal and is not matter for legislative jurisdiction of oneState ….

‘The right to flowing water is now well settled to be rightincident to property in the land; it is right publici juris, of suchcharacter that, whilst it is common and equal to all through whoseland it runs, and no one can obstruct or divert it, yet, as one ofthe beneficial gifts of Providence, each proprietor has right toa just and reasonable use of it, as it passes through his land, andso long as it is not wholly obstructed or diverted, or no largerappropriation of the water running through it is made than justand reasonable use, it cannot be said to be wrongful or injuriousto proprietor lower down ….’

The right to the use of flowing water is publici juris, andcommon to all the riparian proprietors; it is not an absolute and

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

exclusive right to all the water flowing past their land, so thatany obstruction would give cause of action; but it is right tothe flow and enjoyment of the water, subject to similar right inall the proprietors, to the reasonable enjoyment of the same giftof Providence. It is, therefore, only for an abstraction anddeprivation of this common benefit, or for an unreasonable andunauthorised use of it that an action will lie.”

72. Though the waters of an inter-State river pass through theterritories of the riparian States such waters cannot be said to belocated in any one State. They are in state of flow and no Statecan claim exclusive ownership of such waters so as to deprivethe other States of their equitable share. Hence in respect ofsuch waters, no state can effectively legislate for the use ofsuch waters since its legislative power does not extend beyondits territories. It is further an acknowledged principle of distributionand allocation of waters between the riparian States that thesame has to be done on the basis of the equitable share of eachState. What the equitable share will be will depend upon thefacts of each case. It is against the background of these principlesand the provisions of law we have already discussed that wehave to examine the respective contentions of the parties.”

156. Though the aforesaid paragraphs were said in the context ofthe legislative power, yet it meaningfully stated the legal position aboutthe Inter-State River Water and rights of the riparian States in the sameand further that the distribution and allocation of waters between theriparian States has to be done on the basis of equitable share of eachState which will depend upon how the quantum of equitable share isdetermined as per the facts of the case.

157. The Tribunal referred to the decisions in State of Wyomingv. State of Colorado[25], State of Nebraska v. State of Wyoming[26], thereport of the Krishna Water Disputes Tribunal, Chapter XII, page 98under the heading of “Protection of Existing Uses”, the report ofNarmada Water Disputes Tribunal, the Report of Godavari WaterDisputes Tribunal, the Report of the Ravi and Beas Waters Tribunal andnoted thus:-

25 259 US 419 (1922)

26 325 US 589 (1945)

“16. There are three different views in respect of the claims bydifferent riparian States regarding sharing of the water of aninter-State river or river passing from one nation to another:

(i) The first view proceeds on what is called the doctrine ofabsolute territorial sovereignty commonly referred to as ‘Harmondoctrine’. According to this doctrine every State is sovereignand has right to do whatever it likes with the waters within itsterritorial jurisdiction irrespective of injury that it might cause tothe neighbouring State by such appropriation and diversion. (ii)The second view is based on the stand that lower riparian Stateis entitled to water in its natural flow without any diminution orinterference or alteration in its character.

During the last century both views had been propounded – thefirst one by the upper riparian State and the second by the lowerriparian State. If it is examined by an example, State which isat the head of the river from which the river initially passes thenDsuch State can utilize and divert the water from the said rivermaking the lower riparian State starve, leading to the break-down of the economy of such lower riparian State. Similarly, ifthe second view is pushed to its logical end, then the upper riparianState although may be in dire need of the water of such inter-EState river for agriculture and other use shall be mute spectatorof the 14 water of such inter-State river flowing from its territoryto the lower riparian State.(iv) The third view is based on the principle of “equitableapportionment”, that is to say that every riparian State is entitledFto fair share of the water of an inter-State river according toits need. Such river has been provided by nature for commonbenefit of the community as whole through whose territories itflows, even though those territories may be divided by politicalfrontiers.”

G158. Thereafter, the Tribunal referred to the decisions in Kansasv. Colorado[27], Colorado v. Kansas[28], State of New Jersey v. State ofNew York[29], State of Connecticut v. Commonwealth of

27 206 US 46 (1906)28 320 US 383 (1943)H29 283 US 336 (1931)

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Massachusetts[30], State of Colorado v. State of New Mexico[31] andcame to hold as follows:-

“24. It may be pointed out that in the Colorado v New Mexico459 US 176 (1982) known as Colorado I as well as in Coloradov New Mexico 467 US at 310 (1984) known as Colorado IIthere are explicit indications, to consider future developments inequitably apportioning fully appropriated river. But it has beenpointed out in those opinions that any future developments mustnot be inherently speculative in nature and assessment is requiredto be made on the benefits and harms of future use.

25. It also appears that recent treaty between Canada and theUnited States with regard to the Columbia basin has discreditedHarmon doctrine. Also in other international disputes in respectof sharing of waters of rivers flowing from the territory of onenation to another, treaties have been entered which show thatdifferent nations have adjusted their differences. The IndusTreaty 1960, between India and Pakistan is an example.

26. In Halsbury’s Laws of England, Fourth Edition, Volume 49(2)in paragraph 121 it has been said:

“121. Rights and duties as to quantity of water. The right of ariparian owner to the flow of water is subject to certainqualifications with respect to the quantity of water which he isentitled to receive. The right is subject to the similar rights ofother riparian owners on the same stream to the reasonableenjoyment of it, and each riparian owner has right of action inrespect of any unreasonable use of the water by another riparianowner. riparian owner must not use and apply the water so asto cause any material injury or annoyance to his neighboursopposite, above or below him, who have equal rights to the useof the water and an equal duty towards him.”

159. At this juncture, it is worth noting the submissions advancedby Mr. Katarki, learned senior counsel appearing for the State ofKarnataka and Mr. Naphade, learned senior counsel appearing for theState of Tamil Nadu. It is submitted by Mr. Katarki that the equitableshare of water to be allocated to the party States had to be based on

30 282 US 660 (1931)31 459 US 176 (1982)

Aneeds rather than on the flow of the river. No State had any right to thenatural flow of an inter-state river and several factors had to be consideredwhile assessing the needs like basin factors, drought area and population.He emphasized on the basic aspects, namely, Natural Flow Theory andHelsinki Rules, 1966 and placed reliance on the decision in New Jersey(supra) and other authorities. Mr. Naphade, per contra, would contendBthat the contention that there has to be an equal apportionment of waterbetween the two States is untenable. According to him, the parameterof equality has to be understood from different perspective in acontroversy giving rise to water dispute. He relied upon the observationmade by the Narmada and Krishna Water Disputes Tribunals that theCprinciple of equality did not imply that there must be an equal division ofwater between the States but instead meant that the States must haveequal consideration and equal economic opportunity. Such equality wouldnot necessarily result in the same quantity of water being provided to theparties.D160. The Tribunal has referred to the Helsinki Rules of 1966 thathas rejected the Harmon Doctrine and laid stress on the need of equitableutilization of international rivers. The said Rules relate to the use ofwaters of international rivers. Articles V, VI and VIII read as follows:-

“Article V

E(1) What is reasonable and equitable share within the mean-ingof Article IV is to be determined in the light of all the relevantfactors in each particular case.

(2) Relevant factors which are to be considered include, but arenot limited to:

F(a) the geography of the basin, including in particular the extentof the drainage area in the territory of each basin State ;

(b) the hydrology of the basin, including in particular thecontribution of water by each basin State;

(c) the climate affecting the basin

G(d) the past utilization of the waters of the basin, including inparticular existing utilization;

(e) the economic and social needs of each basin State ;

(f) the population dependent on the waters of the basin in eachbasin State;

(g) the comparative costs of alternative means of satisfying fileeconomic and social needs of each basin State;

(h) the availability of other resource!;

(i) the avoidance of unnecessary waste in the utilization of watersof the basin ;

(j) the practicability of compensation to one or more of the co-basin States as means of adjusting conflicts among uses; and(k) the degree to which the needs of basin State may be satisfied,without causing substantial injury to co-basin State;

(3) The weight to be given to each factor is to be determined byits importance in comparison with that of other relevant factors.In determining what is reasonable and equitable share, allrelevant factors are to be considered together and conclusionreached on the basis of the whole.

Article VI: use or category of uses is not entitled to any inherentpreference over any other use or category of uses.

Article VIII: 1. An existing reasonable use may continue inoperation unless the factors justifying its continuance areoutweighed by other factors leading to the conclusion that it bemodified or terminated so as to accommodate competingincompatible use.

2. (a) use that is in fact operational is deemed to have been anexisting use from the time of the initiation of construction directlyrelated to the useor, where such construction is not required, theundertaking of comparable acts of actual implementation

(b) Such use continues to be an existing use until such time asit is discontinued with the intention that it be abandonded.

3. use will not be deemed an existing use if at the time ofbecoming operational it is incompatible with an already existingreasonable use.”

161. On perusal of the said Rules, it is clear as crystal that thesaid Rules have not accepted the Harmon doctrine. It has, on the contrary,laid emphasis on the need of equitable utilization of such internationalrivers. It is noticeable from Articles IV and V of the said Rules that theyrecognize equitable use of water by each basin State, setting out thefactors, not exhaustive though, to be collectively taken into considerationfor working out the reasonable and equitable share of the riparian states.

AThe indicated factors, inter alia, include the geography of the basin, thehydrology of the basin, the climate, past utilization of waters, economicand social needs of each basin State, population dependent on the watersof the basin in each basin State, availability of other resources and thedegree to which the needs of basin State may be satisfied withoutcausing substantial injury to co-basin State. The emphasis clearly isBthat in determining the reasonable and equitable share, all relevant factorsare to be considered together and conclusion is to be reached on thewhole.162. In this regard, it is submitted by Mr. Nariman that theallocation of water could be done equitably and in accordance with justiceCby restoring equal rights to the party states. He submitted that Karnatakaand Tamil Nadu were co-equal States and that justice had to be done toboth while allocating water, fact which the Tribunal had failed torecognize. The Tribunal intertwined decision based on void agreementwith the doctrine of equitable apportionment contrary to the law laidDdown in In Re: Presidential Reference (supra). He submitted that thevarious applicable factors set out in the Helsinki Rules, 1966 were moreor less evenly balanced between the two States. Further, based on themaxim that equality was equity, the balance water available aftersubtracting the share of the smaller States, i.e., Kerala and Puducherryand after accounting for wastage ought to be divided equally betweenEKarnataka and Tamil Nadu.

163. In this context, we may refer to the dictionary clause of the1956 Act. Section 2(c) defines ‘water dispute’. It reads as under:-

“2(c) “water dispute” means any dispute or difference betweenFtwo or more State Governments with respect to —(i) the use, distribution or control of the waters of, or in, anyinter-State river or river valley; or

(ii) the interpretation of the terms of any agreement relating tothe use, distribution or control of such waters or theGimplementation of such agreement; or

(iii) the levy of any water rate in contravention of the prohibitioncontained in section 7.”

164. Section 3 deals with complaint by the State Government asto water disputes. The said provision is extracted below:-H

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

“3. Complaints by State Governments as to water disputes.—Ifit appears to the Government of any State that water disputewith the Government of another State has arisen or is likely toarise by reason of the fact that the interests of the State, or ofany of the inhabitants thereof, in the waters of an inter-Stateriver or river valley have been, or are likely to be, affectedprejudicially by—

(a) any executive action or legislation taken or passed, or proposedto be taken or passed, by the other State; or

(b) the failure of the other State or any authority therein toexercise any of their powers with respect to the use, distributionor control of such waters; or

(c) the failure of the other State to implement the terms of anyagreement relating to the use, distribution or control of suchwaters,

the State Government may, in such form and manner as may beprescribed, request the Central Government to refer the waterdispute to Tribunal for adjudication.”

165. The definition of ‘water disputes’ and the provisions containedin Section 3 have to be given due significance. Section 3 protects theright of inhabitants of State. When the States make request underthe 1956 Act for adjudication of the disputes, the interest of the inhabitantsof the State is involved. That is why, submits Mr. Nariman, both theStates are governed by the parens patriae principle. Keeping in viewthe principles of law stated, we are disposed to think that the controversyis to be adjudged on the bedrock of equal status of the States and thedoctrine of equitability.

O. The quintessence of pleadings before the Tribunal

166. Having stated thus, we think it seemly to refer to the findingson material aspects that pertain to the pleadings as regards the allocationof quantity of water and the foundation to sustain such claims. In thatarena, we shall first advert to the outline of the pleadings.

167. The plea of the State of Karnataka was that till the end ofthe 19[th] century, utilization of the waters of the Cauvery in the States ofCoorg and Mysore was primarily from channels drawn from the riverbed and from tanks in small quantities not exceeding 73 TMC in

Aaggregate. There was no facility of storage and, thus, the agriculturaloperations were dependent on rainfall. It alleged that the efforts madeby the State of Mysore to utilize the waters of this river for the purposesof irrigation were continually frustrated by the protests of the BritishGovernment of Madras and though the State of Mysore was the upperriparian State and contributed the highest flow to the river, yet it was notBpermitted to exercise its powers to utilize the waters for irrigation due tothe remonstrances of the lower riparian province of Madras. It pleadedthat eventually, after series of correspondence in the last part of the19[th] century and early part of the 20[th] century and on the culmination ofthe arbitration proceedings on the issue, scheme for storage of theCwater of Cauvery was formulated in 1931 after the construction of theKrishna Raja Sagara Dam (also referred to as “KRS”) for the storageof 44.8 TMC of water. It stated that by 1934, Madras too had completedthe work of Mettur Dam for storage of 93.5 TMC of water of Cauverythereby enabling cultivation of over 1,21,457 hec. (3,00,000 acres) ofnew area. It mentioned that after the reorganization of the States andDformation of the State of Karnataka covering the areas of the new Stateof Mysore and others, the drainage area of Cauvery basin in Karnatakarose to 42.2%. Apart from referring to the principal tributaries of Cauveryin Karnataka like Harangi, Hemavathi, Kabini, it was underlined that the

Cauvery river valley did receive varying degrees of rainfall. In elaboration,Eit was stated that while the western and central parts of the basin receivedrainfall in South-West monsoon commencing from the last week of Mayand ending in September, the eastern part was largely attended by theNorth-East monsoon starting in September and ending in December. Itaverred that the rainfall pattern per se evinced that large cultivable areasof the State suffered from inadequate rainfall. Though the hilly regionsFforming part of the Western Ghat in Karnataka received very heavyrainfall, yet other parts of the Districts of Mysore, Mandya, Hassan,Tumkur, Bengaluru and Kollar encountered severe and successivedroughts.

168. According to Karnataka, in sharp contrast, the eastern partGof the basin in Tamil Nadu received heavy rainfall in North-East monsoonbeginning from the end of September and ending in December and furtherthe central part of the basin in Tamil Nadu received both South-Westmonsoon and North-East monsoon. Referring to the report of theIrrigation Commission, it maintained that though Karnataka had veryHlarge areas of cultivable and cultivated lands in the Cauvery basin, yet it

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

has the largest extent of drought prone areas in the basin as well andthat there was an imperative need to extend relief to these areas byproviding proper irrigation facilities. It emphasized as well that due touncertain ground water resources resulting from reduced recharge,general deep water table and low storage in the aquifer, the State has todepend on surface water allocation in the Cauvery basin. Elaborating itscrop pattern, it was canvassed that Ragi, Jowar, Sessamum, Groundnut,Redgram and short duration pulses were the common Kharif crops underrain fed conditions. In some areas where there were pockets of retentivesoils or were visited by late rains, some Rabi crops like Jowar, Bengalgramand cotton are also cultivated. It emphasized that to ensure crops duringthe entire period from June to February, i.e., the irrigation season, waterfrom Cauvery was an indispensable necessity, more particularly in viewof the precarious drought conditions suffered by the State.169. Referring to the backdrop of the dispute and the referencefor the adjudication thereof before the Tribunal, the State of Tamil Nadureiterated its demurral that the State of Karnataka did construct fourreservoirs over Kabini, Hemavathi, Harangi and Suvarnavathi tributariesof Cauvery and set up other projects for storing water of the river muchbeyond the limits stipulated in the agreement of the year 1924 whichdecisively resulted in material diminution of the supply of waters ofCauvery to its territories. According to it, such indulgences adverselyaffected the Ayacutdars in Tamil Nadu who had been dependent on thewater of river Cauvery for centuries. While reiterating that theAgreements of 1892 and 1924 did factually recognize and protect theprescriptive rights of Tamil Nadu, lower riparian State, over the waterof Cauvery and that these agreements were the yields of deliberationsover the disputes between the erstwhile Governments of Madras andMysore, whose successors- in-interest are the present States of TamilNadu and Karnataka, it was averred that though the State of Karnatakawas at liberty to use the water of Cauvery, yet it could not do so to theprejudice of the interest of the people of Tamil Nadu. It underlined thatthe apportionment of the water of an inter-State river has to be adjudgedon the principle of equitable apportionment as well as by the commonlaw of prescriptive rights. According to Tamil Nadu, wherever there isan agreement between the parties regarding the use, development andcontrol of waters of an inter-State river and the river valley thereof, thestipulations in the agreement would govern the claim of the parties. Italleged that the construction of Kabini, Hemavathi, Harangi and

ASuvarnavathi projects by Karnataka was without the consent of TamilNadu and thus in violation of the Agreement of 1924 and by takingadvantage of the fact that Tamil Nadu was lower riparian state. Itdilated that Karnataka proceeded with the construction of Kabinireservoir from 1958 and completed the same in 1975 and the irrigationfrom the said reservoir commenced from 1975/1976 onwards. TamilBNadu contended that because of the construction of these reservoirs,the inflows into Mettur reservoir were substantially and materiallydiminished to its immense prejudice. Apart from reiterating that theconstruction of these projects was without the consent of Tamil Naduand also the clearance required therefor, it asserted that as per the settledCprinciples, the upper riparian state did not have an absolute right toimpound or utilize the water of an interstate river to the detriment of thelower riparian States. It strongly put forth that the pre-existing right ofthe lower riparian State has to be preserved more particularly whenriver Cauvery is the only major river in Tamil Nadu which had beencontributing nearly 50% of the State’s surface water use. Referring toDthe two monsoons experienced by the State, Tamil Nadu elaborated thatthe upper part of the Cauvery basin, which is above Mettur, is influencedby South-West monsoon and the lower part by the North-East monsoonand that the flow of river during the South-West monsoon is to greatextent dependent on the run off from the hilly catchment above theESivasamudram falls. It was stated that while the South-West monsoon ismore intensive, unfailing and dependable and spread over long period,the North-East monsoon, which visits the State after the South-Westmonsoon, is erratic and undependable so much so that the coastal areasand the Delta occasionally receive heavy intense rains of very shortduration, most of which can neither be conserved nor utilized in theFDelta. According to the State, during the South-West monsoon, most ofthe catchment lying below the Mettur reservoir is not benefitted, excepta small portion of the high ranges of Bhawani and Amaravathi tributaries,as the catchment lies on the rain shadow areas of the Western Ghats. Itwas reiterated that due to the unique geographical and hydrologicalGcharacteristics of the Cauvery basin, Tamil Nadu is not in position toavail the benefit of the South-West monsoon fully and has to suffer thedamage wrecked by the North-East monsoon. To emphasize that it hadto depend on the flows of river Cauvery since June onwards during theSouth-West monsoon and on local rainfall during the North-East monsoon,it explained that after the commissioning of the Mettur reservoir in 1934,H

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

it had been possible to impound the excess flows and dispatch regulateddischarges to meet the needs of the river channels enroute the Deltaand that contingent on the availability of supplies, number of regulatorycontrols have been devised to regulate the same. Referring to its croppattern, Tamil Nadu disclosed that in the Delta, short duration cropcalled “Kuruvai” is raised between the months of June and Septemberfollowed by medium crop named “Thaladi” between October andFebruary. It also mentioned about long term crop named “Samba”raised between July and January in single crop lands which are large inextent. Tamil Nadu underlined that rice was the dominant crop in theDelta especially in the Thanjavur district and that the whole State largelydepended on this district for rice which was the staple food of the people.It asserted that the alluvial soil of the Delta was ideal for growing ricesubject to the availability of water and only in isolated pockets, sugarcane,banana and other crops are grown.170. Kerala averred that the river Cauvery originates in the easternslopes of the Western Ghats and has its huge catchment spread over theStates of Kerala, Karnataka and Tamil Nadu and that three tributariesof the river, namely, Kabini, Bhavani and Pamber, have portions of theircatchments in the State of Kerala. It was further asserted that its totalcontribution in the flow is to the extent of 20% but it lags behind othersin utilization of waters of the Cauvery. As reason therefor, it cited thefact that before the reorganization of the States in the year 1956, neitherTravancore nor Travancore-Cochin State was recognized as an interestedparty in the dispute of sharing of the water of Cauvery, but after thereorganization, determined efforts were made for improvement of theBasin and diversion of the water in Cauvery Basin for utilization by theState. It, however, underlined that the efforts of the State stood frustratedbecause of the objection of the other riparian states and though severalclaims had been brought up and were otherwise found to be technicallyfeasible and economically viable, yet those could not be executed becauseof the adamant attitude of the other lower riparian states. It highlightedthat the State of Kerala, for all these factors, had to be dependent on thesingle crop of paddy though there is much scope for raising second oreven third crop with the availability of irrigation facilities from the wateravailable in the Cauvery Basin. It emphasized that its ground waterpotential was negligible but because of the special topographical featureof the Cauvery Basin in the State of Kerala, diversion of water from theCauvery Basin did promise the scope of development of cheap hydro

Aelectric power in addition to meeting the need for consumption of waterfor irrigation purposes. It stated that while it was stifled from taking upany scheme in the Basin, Tamil Nadu proceeded with the construction inutilizing water for extending irrigation and for that purpose, theGovernment of India cleared projects like Mettur Canal Project, KattalaiHigh Level Canal and Pullambadi Canal Schemes. The State ofBKarnataka also embarked upon new irrigation projects for utilizingCauvery water even without the clearance of the Government of Indiain order to underscore the discrimination meted out to the State of Keralain the matter of proportionate utilization of the waters in the CauveryBasin to which it was entitled.C

171. The Union Territory of Puducherry pleaded that its Karaikalregion is situated on the South Coromandel Coast and that the threesides thereof are bound by Thanjavur District of Tamil Nadu and on theEast lay the Bay of Bengal. It disclosed that the total area of Karaikalregion is 14,920/- hectares out of which 10,990 hectares is underDcultivation. While stating that the sub-soil water in the region is unsuitablefor cultivation, it mentioned that the water supplied to Karaikal regionfrom river Cauvery flows from the branches of the river below GrandAnicut where the river Cauvery divides and sub-divides itself and servesboth the irrigation and training channels in the Karaikal area. The waterrequirement for the Karaikal region for the three crops, namely, SambaE(single crop), Kuruvai (Kharif) (Double crop) and Thaladi (Rabi) (Doublecrop) was mentioned to be 9240 Mc.ft, i.e., 9.24 TMC for 17220 ha. ofirrigation. It claimed that the interest of its territory was taken note ofwhen the Agreements of 1892 and 1924 were entered into between thethen Government of Madras and Government of Mysore in connectionFwith the construction of Krishna Raja Sagara Dam and that at the timeof construction of Mettur Dam, the French Administration, then in-charge,passed on its claim to the then Government of Madras for regulation ofsupply of Cauvery Water to Karaikal region. It, however, alleged thatafter 1972, there has been shortfall in the actual release of waterranging from 2 TMC to 6 TMC.G172. After recording the evidence to which we shall refer tohereinafter under different headings, to reiterate, the issues for thepurpose of convenience were regrouped finally which we have alreadyreproduced hereinbefore.

173. The Tribunal in seriatim dealt with the regrouped issues and,accordingly, proceeded to examine the validity or otherwise of theAgreements of 1892 and 1924. It set out the background and thecircumstances under which the agreements were entered into. We neednot advert to the same in detail as we have referred and dealt with whiledealing with the issues pertaining to the status of the Agreements.However, it is necessary to state that after spate of correspondenceand series of discussions, an agreement between the Mysore Governmentand Madras Government was entered into in 1892 in the form of rulescaptioned as “Rules defining the limits within which no new irrigationworks are to be constructed by the Mysore State without previousreference to the Madras Government”. The Tribunal set down therelevant clauses of the Rules and the extracts therefrom having aformidable bearing on the issue under scrutiny are quoted hereinbelow:-

“The Mysore Government shall not, without the previous consentof the Madras Government, or before decision under rule IVbelow, build (a) any “New Irrigation Reservoirs” across any partof the fifteen main rivers named in the appended Schedule A, oracross any stream named in Schedule below the point specifiedin column (5) of the said Schedule B, or in any drainage areaspecified in the said Schedule B, or (b) any “New anicut” acrossthe streams of Schedule A, Nos. 4 to 9 and 14 and 15, or acrossany of the streams of Schedule B, or across the following streamsof Schedule A, lower than the points specified hereunder:

Across 1. Tungabhadra – lower than the road crossing at Honhalli,Across 10 Cauvery – lower than the Ramaswami Anicut and,Across 13 Kabani – lower than the Rampur anicut.

III. When the Mysore Government desires to construct any“New Irrigation Reservoir” or any new anicut requiring theprevious consent of the Madras Government under the lastpreceding rule, then full information regarding the proposed workshall be forwarded to the Madras Government and the consentof that Government shall be obtained previous to the actualcommencement of work. The Madras Government shall bebound not to refuse such consent except for the protection ofprescriptive right already acquired and actually existing, the

Aexistence, extent and nature of such right and the mode ofexercising it being in every case determined in accordance withthe law on the subject of prescriptive right to use of water and inaccordance with what is fair and reasonable under all thecircumstances of each individual case.”

B174. Schedule that was annexed to the Rules provided the detailsof the rivers and their tributaries passing through the territory ofGovernment of Mysore including Cauvery and its tributaries Hemavathi,Laxmanthirtha, Kabini, Honhole (or Suvarnavathi) and Yagachi (tributaryof Hemavathi) upto Belur Bridge. It was clarified that at that point oftime, there was no mention of the tributary Harangi in the Schedule as itCwas outside the territory of Mysore and was located in Coorg State.

175. In the above premise, the Tribunal noted that in terms of theAgreement of 1892, the Mysore Government was required to obtain theprevious consent from the Madras Government in respect of anyconstruction proposed to be made including any new irrigation reservoirDacross the 15 main rivers named in Schedule to the agreement oracross any stream named in Schedule below the point specified therein.It was stipulated as well that before any such project was executed, fullinformation with regard to the same was required to be furnished to theState of Madras for the purpose of consent. In its turn, the MadrasEGovernment was not to refuse such consent except on the failure of theMysore Government to furnish full information regarding the proposedwork to the Madras Government and if the grant of any such consent bythe Madras Government would deprive its inhabitants of their protectionof prescriptive rights already acquired and existent in accordance withlaw on the use of an inter-state river.F

176. The Tribunal thereafter took note of the events subsequentthereto which, with time, gave rise to fresh dispute between the twoStates following the formulation of proposals by them for constructionof reservoirs on the river Cauvery. The dissension, as the Tribunal hasnoted, gave rise to disputes, the Griffin Award and eventually comingGinto force of the 1924 Agreement. The Tribunal generally traversed theagreement as whole with particular reference to clause 10(i), (ii), (iii),(iv), (v), (vi), (vii), (xi), (xiv) and (xv) dealing with the construction andoperation of the Krishna Raja Sagara reservoir; obligation of the MysoreGovernment to regulate the discharge through and from the said reservoirHstrictly in accordance with the rules of regulation set forth in Annexure

(I) to the Agreement; future extensions of irrigation in Mysore and Madrasas well as future constructions of reservoirs on Cauvery and its tributariesmentioned in Schedule of the 1892 Agreement; the mode and mannerof operation of the reservoirs so as not to make any material diminutionin supplies connoted by the gauges accepted in the rules of regulationsfor the Krishna Raja Sagara reservoir; reconsideration of the limitationsand arrangements embodied in Clauses (iv) to (viii) on the expiry of 50years from the date of the execution of the agreement for the purposeof modifications and additions, as may be mutually agreed upon; libertyof the Mysore Government to construct, as an offset, storage reservoiron one of the Tributaries of the Cauvery in Mysore of capacity notexceeding 60% of the new reservoirs in Madras, should the MadrasGovernment construct irrigation works in Bhawani, Amravathi or Noyyalrivers as new storage reservoirs and the provision for reference toarbitration of any dispute between the two Governments touching uponthe interpretation or operation or carrying out of the agreement.

177. The Tribunal also set out the extract of Rule 7 of the rules ofregulation of the Krishna Raja Sagara prescribing the minimum flow ofCauvery that was to be ensured at the Upper Anicut before anyimpounding was made in the Krishna Raja Sagara reservoir. Be it stated,we have already reproduced the same earlier.

178. The Tribunal next scanned the Agreements of 1892 and 1924and to discern the clarificatory Agreement dated 17.06.1929 noted thatthe fixed level or discharge was to be maintained on the basis of (a) thewaters released from Krishna Raja Sagara reservoir, (b) from Kabini,Suvarnavathy, Shimsha and Arkavathi Tributaries which join Cauverywithin the State of Mysore/Karnataka below Krishna Raja Sagarareservoir and (c) Four Tributaries of Cauvery in Madras/Tamil Nadu; (i)Chinnar, (ii) Noyyal, (iii) Bhavani and (iv) Amaravathi.

179. The Tribunal further observed that the Agreement onlycontemplated and provided for future extension of irrigation in new areason the terms and conditions mentioned therein and concluded that afterthe execution of the said Agreement, there was no nexus or link betweenthe discharge of water of river Cauvery to the State of Madras and theareas over which any prescriptive right had already been acquired orwas actually existing and the formula was worked out by taking the totalarea which was under irrigation by the Cauvery system before theexecution of the said Agreement.

A180. It analyzed in detail the various clauses of the said Agreementwith the mutual rights and obligations as specified therein and in thatcontext, it opined that whenever dispute was raised, it was to beexamined in the light of the conditions prescribed not only in clauses 10(iv) to 10 (viii) but also in the light of the obligation and mandate providedon the part of State of Mysore/Karnataka to follow the rules of regulationBfor Krishna Raja Sagara reservoir as contained in clause 10(ii).

181. It adverted to the observations of this Court that though thewater from inter-state river pass through the territories of riparian States,yet such waters cannot be located in any one State, being in state offlow, and, thus, no State can claim exclusive ownership of such water soCas to deprive the other States of their equitable share. Keeping in viewof the judgment of this Court, the Tribunal negatived the contention ofthe State of Tamil Nadu that the allocation and apportionment of thewaters of river Cauvery should be made strictly in accordance withAgreements dated 1892 and 1924 but parted with the observation thatDthe terms thereof would, however, have to be kept in view, whileconsidering the developments made in the different State vis-a-vis theshare of each riparian State.

P. The findings of the Tribunal on various issues

P.1 Prescriptive rights and other claims

182. Vis-a-vis the prescriptive rights and other claims projectedby the States, the Tribunal reiterated that the Agreement of 1924 alongwith the rules of regulation of Krishna Raja Sagara reservoir, as appendedthereto, did not indicate anything to that effect and neither any referencehad been made to the areas over which any prescriptive right had beenFacquired prior thereto or existing nor any provision had been made withregard thereto. It differentiated in this respect the Agreement of 1892which laid stress in respect of prescriptive rights already acquired andthen existing from the Agreement of 1924 which did not contain areference to any existing prescriptive right of the State of Madras or itsGcultivators in respect of the water to be released to it. The Tribunalperceived that the Government of Mysore and the State of Madras whileentering into the Agreement of 1924 seemed to have recognized thetotal areas under irrigation of the Cauvery System within the State ofMysore as well as the State of Madras irrespective of any prescriptiveright having been acquired by the State of Madras on any part or wholeHof the areas under irrigation and it rather provided for future extensionSTATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

of irrigation in new areas on the terms and conditions as set out. Referringto letter dated 06.07.1915 addressed by the then Dewan of Mysore tothe Resident of Mysore which carried, according to the Tribunal, anadmission on behalf of the State of Mysore to the effect that at thatpoint of time, the area irrigated under the Cauvery System in Madraswas 12,25,500/- acres, it upheld the claim of State of Tamil Nadu thatprior to the execution of the Agreement of 1924, its area of irrigationwas 13,26,233 acres. The Tribunal, thus, concluded that in the overallbackground, it would be futile to examine as to what was the total areain the then State of Madras over which prescriptive rights had beenacquired or were in existence for the purpose of allocating the quantityof water to the State of Tamil Nadu and that for all intents and purposes,the issue regarding prescriptive right of Madras had been renderedacademic.

P.2 Breach of agreements of 1892 and 1924 and consequencesthereof

183. Dealing with the highly contentious issue of breach of theagreements and the consequences thereof, the Tribunal outlined thesummary of the rival orientations. While the State of Karnataka urgedthat all its projects with regard to which grievances had been made bythe State of Tamil Nadu had been contemplated under the Agreement of1924 and that no separate consent therefor was required from the Stateof Tamil Nadu and that in view of clauses 10(iv) and 10(vii), the MysoreGovernment was at liberty to carry out future extension of irrigationwithin its territories under the Cauvery and its tributaries to the extent aspermissible thereunder and in the manner as prescribed, the remonstranceof the State of Tamil Nadu was that the Mysore Government did notfurnish the full particulars and details of the reservoir schemes and ofthe impounding of water thereby, as required thereunder in clause 10(viii).It contended as well that the Rules of Regulation in respect of suchreservoirs had to be settled first before the construction was to start asthe apprehension of the then State of Madras was that impounding insuch reservoirs was bound to affect the flow at Upper Anicut as stipulatedin clauses 7 and 10 of the rules of regulation of Krishna Raja Sagarareservoir.

184. To address these areas of dissension, in essence, the Tribunalprimarily referred to the official exchanges/correspondence betweenthe two States after the execution of the Agreement on various aspects

Abearing thereon, during which both the States did initiate and pursuetheir projects, levelling at the same time, against each other, the imputationof deviations from the Agreement. The Tribunal noted as well that after1974, when according to the State of Karnataka, the Agreement of 1924came to an end, it started impounding waters in different reservoirsconstructed over the tributaries of Cauvery within its territories withoutBfollowing any Rules or any of the terms of the Agreement of 1924 andthat the areas which were to be put under irrigation from such reservoirsand other diversion of works, like Anicuts increased every year. Referringto the charts laid before it, the Tribunal also marked that the impoundingof water in different reservoirs on Hemavathi, Kabini, SuvarnavathyCand Harangi tributaries in the State of Karnataka increased, whichprecisely was one of the inducing factors for the dispute to be referredto the Tribunal for adjudication. The Tribunal, on an overall view of theintervening developments, concluded that the issue as to who was atfault and responsible for such alleged breaches or violations had beenrendered academic with time and was of no practical relevance. It,Dhowever, set down that Mysore had observed the rules of regulation ofKrishna Raja Sagara reservoir till the expiry of the period of 50 yearsfrom the date of the execution of the Agreement of 1924, but thereafterhad started asserting its territorial rights over the water flowing fromCauvery within its boundaries. Noting, amongst others, that even theEState of Tamil Nadu had increased its acreage under the Cauvery irrigationsystem over the years from 16 lakhs to 28 lakhs, the Tribunal was of theview that the violations or the injuries caused by the States allegedly toeach other was really matter of history and defied any manageableparameter for assessment thereof after the lapse of considerable periodof time.FP.3 Peripheral issues qua claims of Kerala and Union Territory ofPondicherry (presently named as “Puducherry”)

185. The Tribunal, at this juncture, before embarking upon thescrutiny of the factors to ascertain the aggregate yield of water availableGfor the purpose of apportionment amongst the riparian States, addresseda few peripheral issues pertaining to the claims of Kerala and the UnionTerritory of Puducherry. Qua Kerala, it recorded that its claim of shareof waters of the river Cauvery had been made primarily because of theareas transferred to it from the State of Madras. The Malabar Districtwhich before the reorganization of the States, was an integral part of theH

State of Madras, it was noticed, not only included part of the CauveryBasin but also part of two important tributaries, namely, Kabini andBhawani, apart from another tributary, namely, Pambar which was withinthe erstwhile State of Travancore Cochin, territories whereof also wereintegrated with the new State of Kerala on such reorganization. Theerstwhile State of Travancore Cochin was not party to the Agreementof 1924, but after its formation in the year 1956, the State of Keralastarted claiming apportionment of the waters contending that the saidAgreement was not binding on it and ought to be ignored to determine itsshare. The Tribunal exhaustively referred to the series of communicationsprojecting the grievances and demands of the State of Kerala, thedemurral in substance being that the co-riparian States, Mysore andMadras, were prosecuting their projects in total disregard of its share ofwater in the Kabini, Bhawani and Pambar tributaries. In the discussionsheld, it asserted that there was no valid or legal agreement which didbind it with regard to the allocation of waters in Cauvery and its tributariesas it was never party thereto. It claimed that the three tributaries,namely, Kabini, Bhawani and Amaravathi, which had become part ofKerala State, did contribute about 220 TMC against the total flow of 680TMC in the entire Cauvery basin and that there had been practically noutilization of this water by it. It registered its claim for irrigation andpower generation at 86 TMC.

186. The claim of Union Territory of Puducherry on the basis ofits total area of cultivation to be 43,000 acres was taken cognizance of.This was based on the fact that the Karaikal region of the Union Territoryof Puducherry was located within the Cauvery basin and that sevenbranches of Cauvery did flow through the said region. The Tribunalparted with the observation that the Union of Territory of Puducherrywas, thus, interested only in the allotment of its share of water in theCauvery basin being at the tail end among the riparian States. It felt itapt to direct that 6 TMC out of the total volume to be released to MetturDam would have to be made available for utilization by Puducherry forits irrigation in the Karaikal region.

P.4 Gross water available for apportionment

P.4(i) Surface flow of water:

187. Having thus laid the factual preface comprehending therelevant facets of the discord, the Tribunal next turned to determine the

Asurface flow of Cauvery river to ascertain the volume of waterdependably available for eventual allocation amongst the claimants-States. For the said purpose, it initiated the scrutiny from the yield of theriver. It noticed that the yield or the total available quantum of water in ariver system was dependant on rainfall pattern, catchment areacharacteristics including soil and vegetal cover and various climaticBparameters affecting evaporation and evapo- transpiration in the basin.It also took note of the fact that the annual yield of given basin variesfrom year to year depending upon the occurrence of rainfall and itsintensity and distribution in time and space. It observed that in theassessment of total yield, the withdrawals of water, if any, for differentCuses had bearing and that the total annual flow including upstreamwithdrawals at the terminal site out of the yield of river system wasrequired to be noted. It recorded that due to variability of the annualyield of river from year to year, depending upon the rainfall distribution,consequent run off and withdrawals, etc., such data is collected for anumber of years to assess the reliable yield. At this stage, passing referenceDwas also made to the doctrine put forward by the Attorney GeneralHarmon of the United States that Riparian States have exclusive orsovereign rights over the water flowing through their territories and theanomaly in this doctrine in the implementation thereof, especially in caseswhere the water of the river concerned was not sufficient for all theEStates through which it passed. This was so, as on the upper riparianState claiming its exclusive right to utilize the waters on the basis of theaforesaid doctrine, the right of use of water of such inter-state river bythe lower riparian State would stand jeopardised. The other extremeassertion of the lower riparian States that they were entitled to water ofsuch inter-State or international rivers in their natural flow without anyFinterference and alteration in their character did have the potential ofcreating disharmony and anomaly. To strike balance for resolving suchconflicting claims of the upper and lower riparian States, the principle ofequitable apportionment as propounded by the Supreme Court of UnitedStates in Kansas v. Colorado (supra) was taken note of. The TribunalGwhile accepting this principle however posed question to itself, as to whatwould be the equitable apportionment, more particularly where the wateravailable was not enough to cater to the needs of different riparian States.

188. The Tribunal noted in this context that the total amount ofwater available in river Cauvery through surface flows and alternativeH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

sources was much less than what the different States claimed andrequired for their irrigation, electricity, drinking water and to run differentprojects. It recounted again the formation of the Cauvery Fact FindingCommittee in the year 1972 and its report which, on the issue, afterhaving regard to the particulars and data of the total yield forwarded bythe States involved, cross-checked it spanning over period between1933-34 to 1970-71 and also on the basis of its investigation and furthertaking into consideration the gauge and discharge readings at differentplaces in different States, worked out the dependable yield at 50%, 75%and 90% to be 740 TMC, 670 TMC and 623 TMC respectively. Inarriving at these figures, the Committee noted the utilization of Cauverywater in the years 1901, 1928, 1956 and 1971 by different States. TheCommittee also reflected over the different projects in different States,land use, cultivated areas and agricultural practices, geology and mineralsas well as the climate, rainfall and water resources vis-a-vis thecompeting States. Gauge and discharge observations at the recordedsites in Tamil Nadu and Mysore in particular were noted too. In view ofthe long term record available for the main Cauvery at Krishna RajaSagara, Mettur and Grand Anicut/Lower Anicut, the Committee estimatedthe yield at 50%, 75% and 90% dependabilities. The Committee, thusassigned sufficient weightage to the existence of Krishna Raja Sagaraand Mettur reservoirs and, accordingly, relied upon the data from 1933-34 when both these reservoirs were in position. The yield at the terminalpoint of the basin, namely, Lower Coleroon Anicut, was, thus, assessedby the Committee at 740 TMC at 50% dependability, 670 TMC at 75%dependability and 623 TMC at 90% dependability. The Tribunal observedthat the report of the Committee had been considered by the ChiefMinisters of the States whereupon they concurred with the finding ofthe total yield within the Cauvery basin.

189. In the same year, i.e., 1973, the Chief Ministers of the threeriparian States and the Minister for Irrigation of Government of India ina meeting did also agree that it was necessary for all the concernedStates to effect economy in the use of water so as to make it possible tomeet the legitimate needs of other projects which were feasible in theCauvery basin. Having said that, in the end, Mr. C.C. Patel, AdditionalSecretary in the Ministry of Irrigation and Power was asked to carry outdetailed studies on the scope for economy in the use of Cauvery waters.Accordingly, Mr. Patel, on the completion of his studies, suggested some

Aconcrete proposals in his report qua the States. The Tribunal recordedthat the State of Tamil Nadu did not dispute at any stage the assessmentmade by the Cauvery Fact Finding Committee in respect of the riverflow and total yield of river Cauvery to be at 740 TMC at 50%dependability, 670 TMC at 75% dependability and 623 TMC at 90%dependability and had also accepted about the utilization by the threeBriparian States, Tamil Nadu, Karnataka and Kerala, as found by theCommittee in its additional report to be 566.60, 176.82 and 5.00 TMCrespectively.190. The Tribunal, however, at the hearing of the arguments,required the States of Karnataka and Tamil Nadu to furnish the flowCseries for 38 years, i.e., from 1934-35 to 1971-72 and from the data sofurnished, it transpired that according to the State of Karnataka, theaverage yield for the period 1900-01 to 1971-72 was 792.3 TMC which,at 50% dependability, figured 752 TMC. Tamil Nadu noticeably, on thebasis of flow series from the year 1934-35 upto 1971-72, claimed theDtotal yield at 50% dependability to be 740 TMC. The Tribunal, on acomparison of the flow series for the two States for the same period,i.e., 1934-35 to 1971-72, quantified the dependable yield at 50% at 734TMC qua Karnataka and 740 TMC for Tamil Nadu. Responding to theplea of Karnataka that the Tribunal should take into consideration theflow series for the period after 1972, it noted that none of the party-EStates had filed annual flow series for the period subsequent to 1972 forimportant nodal points, namely, Krishna Raja Sagara, Mettur and LowerColeroon Anicut and that in the absence of such information, it was notpossible to come to the conclusion that there has been material changein the total yield within the basin. It remarked as well that after 1974,

Fnone of the States appeared to be interested in disclosing the correctinformation in respect of withdrawals because of which the detailsfurnished in respect of flows and withdrawals by the party-States in thecommon format after 1972 were disputed by both the States. The Tribunaltook note of the fact that Kerala, since the initial stage, had supported

the finding of the Cauvery Fact Finding Committee that 740 TMC ofGwater was available in the Cauvery system in an average year. Thestand of the Union Territory of Puducherry was similar. In view of suchpreponderant and convincing empirical inputs, the Tribunal accepted thetotal yield of the Cauvery basin at 50% dependability to be 740 TMCand at 75% dependability as 670 TMC.H

P.4(ii) Identification of dependable yield:

191. The Tribunal next turned to identify which of the twodependable yields, i.e., 50% or 75% was to be adopted for the purposeof eventual apportionment. In this context, it premised that the variabilityof annual yield from year to year warranted ascertainment of thesustainable utilizable flow which could be accepted for final allocationfor which dependability of the available flow (yield) was of formidablesignificance. In this regard, it noticed that the utilizable quantities of waterfrom surface run off had been assessed by different authorities includingthe Irrigation Commission, 1972 and the National Commission onAgriculture, 1976 based on physiographic conditions, hydro-meteorological parameters and socio-political environment, legal andconstitutional constraints and available technology of development. Thedependability factor, the Tribunal observed, did indicate the degree ofassured supply available on the basis of which project/scheme for anyparticular use had been designed. It also recorded that from the informationfurnished by the States of Karnataka and Kerala in the common format,it transpired that most of the projects had been designed on 50%dependability. The Tribunal felt advised as well by the observations ofthe Supreme Court of United States in State of Wyoming v. State ofColorado (supra) that the lowest natural flow of the years is not the testand the reasonable view is that fairly constant and dependable flowmaterially in excess of the lowest may generally be obtained by meansof reservoirs adopted to conserve and equalize the natural flow. TheTribunal mentioned that from the yield series furnished by the States ofTamil Nadu and Karnataka during the period of 38 years from 1934-35to 1971-72, the lowest recorded yield was during the period 1952-53 at523 TMC according to Tamil Nadu and 516 TMC according to Karnataka.It noted that in the Cauvery basin, the fluctuation of the flows was not ashigh as in the Krishna or Narmada basin, such fluctuation between thelowest yield and the dependable yield being within 30% in comparison to56% and 70% in case of Krishna or Narmada. The Tribunal took note ofthe storage capacities of various reservoirs built by the States of TamilNadu and Karnataka before and after 1972 in the Cauvery basin. It alsotook into account the projects proposed by the State of Kerala havinglive storage of more than 1 TMC each totaling 19 TMC of live storagecapacity in the basin. The fact that in addition, about 12 TMC of storagecapacity was available from other small reservoirs with capacity of less

Athan 1 TMC was taken cognizance of. The Tribunal, thus, concludedthat the total storage capacity in the Cauvery basin was 330 TMC (gross)and 310 TMC (live). It was of the view that about 42% of 740 TMC(i.e., 50% dependable yield) could be stored in all the storage reservoirsin the Cauvery basin which was very significant aspect for considerationin the development and utilization of water resources of river basin. ItBconcluded that in view of the facets examined on the basis of the materialsavailable, adoption of 50% dependable flow for apportionment amongstthe party-States, bearing in mind the reinforcement in the two monsoonseasons and the availability of ample storage facilities, would be fair andthe system could be further strengthened by integrated operation of theCimportant reservoirs.

P.4(iii) Additional source of water:

192. The Tribunal, in its quest for an additional/alternative sourceof water, dwelt upon sub-surface water or groundwater which is portionof the earth’s hydrological cycle. It started with the premise that theDgroundwater originates for all practical purposes as surface water whichinfiltrates into the ground from natural re-charge of precipitation, streamflow, lakes and reservoirs. It noted the recorded fact that recharge ofthe groundwater takes place from natural resources like rainfall andartificial modes, i.e., application of water to irrigate crops, flooding ofEareas caused by over-flowing of streams to their sides and seepagefrom unlined canals, tanks and other sources of re-charge in anyparticular area. It took cognizance of the empirical data prepared by theCentral Ground Water Board, Ministry of Water Resources, Governmentof India, that groundwater caters to more than 45% of the total irrigationin the country. On this issue, whereas the State of Karnataka contendedFthat while making apportionment of the waters available within theCauvery basin, groundwater available within the delta areas should alsobe taken into consideration, per contra, Tamil Nadu asserted to thecontrary. According to it, so far as the delta was concerned, thegroundwater was mainly derived from re-charge by the supplies fromGMettur, i.e., it is the water of river Cauvery and its tributaries which byprocess of re-charge becomes groundwater within the delta area in theState of Tamil Nadu and the same is utilized by the farmers for raising ofearly nurseries ahead of releases from Mettur and for irrigating belatedcrop after stoppage of Mettur releases. It, thus, asserted that as thegroundwater in the delta area is replenished by the releases from Mettur,H

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

it cannot be considered to be an independent source of irrigation or analternative means of irrigation. The Tribunal, in order to address thisissue, traversed the studies undertaken, amongst others, by the CentralGround Water Board, Ministry of Water Resources, Government of Indiawhich, to reiterate, attested that groundwater is an important source ofirrigation and caters to more than 45% of the total irrigation in the countryand that the contribution of groundwater irrigation to achieve self-sufficiency in food grains production in the past three decades had beenphenomenal. It mentioned in its report that although the groundwater isan annually replenishable resource, yet its availability is non-uniform inspace and time and though for planning its development, preciseestimation of groundwater resource and irrigation potential is necessarypre-requisite, yet such an exercise is rather difficult as techniques arecurrently not available for direct measurement. The report furtherenumerated the items of supply to and disposal from groundwaterreservoirs. The Tribunal noted that for irrigation, there are three sourcesof water supply, namely, rainfall, surface flow of any river which can betaken to different areas through canal system and groundwater whichcan be taken out through open wells or tube-wells. Reverting to theCauvery basin, the Tribunal marked that it was an admitted position thatthe variability in time and quantity of rainfall from the South-West monsoonand the North-East monsoon in some years do create problems therebyaffecting the surface flow of river Cauvery and its tributaries which inits own turn affect the storage in different reservoirs like Krishna RajaSagara, Mettur, etc. The Tribunal underlined that it is in this backgroundthat availability of groundwater assumed importance. It also referred tothe disclosures in research undertaken in the field that the availability ofgroundwater for use was limited to the annual re-charge which could bewithdrawn and again replenished by natural rainfall/artificial modes ofre-charge so much so that the annual withdrawals of groundwater inany region need to be in equilibrium with the annual replenishment ofgroundwater in that region. It indicated on the basis of the materialsavailable that over-withdrawals made from an aquifer (i.e., water bearingrock formation) at rates in excess of the net re-charge are described as“mining” of groundwater as it lowers the groundwater level permanentlyto the extent these over-withdrawals are made thereby leading to seriousproblems. It noted that if such practice of over-withdrawals wouldcontinue resulting in decline of groundwater table, the pumping of waterwould become more and more expensive from the greater depth thus

DEFG

Acompounding the situation. The Tribunal, adverting to the Central GroundWater Board Publication “Ground Water Resources of India -1995”observed that whereas in Karnataka, dug-wells, dug-cum-bore wellsand bore wells were the main groundwater structures feasible, the groundwater development for irrigation had commenced recently in the State.As regards the State of Tamil Nadu, it was observed that groundwaterBdevelopment in most of the parts of the State was high resulting inlowering of water level in many areas. The caveat in the report that inthe coastal areas of Tamil Nadu, cautious approach has to be adoptedfor groundwater development due to salinity hazards, was noted. Thefact that the research study and experiments indicated towards theCencouraging conjunctive use of groundwater with the available surfacewaters was taken note of by the Tribunal as well. This was clearlysuggestive of the comprehension that groundwater could be used tosupplement surface water supplies in order to reduce peak demands forirrigation and other uses or to meet the deficit in the years of low rainfall.Reports, inter alia, of the Irrigation Commission, 1972 disclosing the roleDplayed by groundwater in mitigation of the requirements of the party-States, namely, Karnataka (35%), Kerala (21%), Tamil Nadu (47.2.%)and Union Territory of Puducherry (61%) were noticed by the Tribunal.The Tribunal also took note of the fact that the development ofgroundwater had taken place mostly in the private sector where theEowners have many time over-exploited the available groundwaterresources resulting in gradual lowering of the water level with the hazardof intrusion of sea water in the coastal areas thereby polluting the qualityof groundwater in the vicinity of the coastline and, thus, rendering thegroundwater in the affected area not only unfit for human consumptionbut also for use in agriculture. The Tribunal marked the limit ofFgroundwater development proportionate to the annual replenishablegroundwater resources as prescribed by the National Water Policy. Theaspect that though underground water resources of State had beenacknowledged to be relevant factor by the Krishna Water DisputesTribunal, Narmada Water Disputes Tribunal as well as Godavari WaterGDisputes Tribunal for equitable apportionment of the waters of an inter-State river system, yet they declined to investigate the question regardingavailability of groundwater and quantity thereof on the ground thatgroundwater flow cannot be accurately estimated from the technicalpoint of view and, thus not fully cognizable from the legal point of view,was underlined.H193. The Tribunal referred to the investigation undertaken by ateam of experts under the United Nations Development Programmewith its report stating that the total yearly quantity of replenishablegroundwater that can be extracted from the shallow aquifer in the deltathrough high yielding medium-depth tube-wells equipped with turbinepumps is 129 TMC. It elaborated that the yearly quantity of groundwaterthat can be extracted by using centrifugal pumps in the Cauvery sub-basin, Vennar sub-basin and in the new delta was 33.7 TMC, 5.4 TMCand 32.5 TMC respectively. Additionally, quantity of 56.5 TMC ofgroundwater per year can also be made available in the Cauvery sub-basin by lowering seasonally groundwater level to 10 meters depth belowthe regional groundwater level and substituting high yielding medium-depth tube-wells equipped with turbines for the low yield filter pointswith centrifugal pumps. This finding, however, was criticized by TamilNadu as impracticable and unworkable, more particularly in view of thehigh cost involved in purchasing the equipments suggested and in loweringthe depth upto 10 meters by different cultivators in the Delta. The Stateof Karnataka, however, supported the recommendation of the UNDPwith the observation that if the same would have been implementedtimely, the aquifers in the Delta would have been re-charged by North-East monsoon rainfall which could be utilized during the period fromJune to October next year.

194. The Tribunal took note of the study conducted by team ofthe Central Ground Water Board of the utilization of groundwater withspecial reference to the Delta area in Tamil Nadu which indicated thatthe groundwater potential available from the Delta was to the extent of64 TMC which included 5 TMC from deep acquifer (upto 100 metersdeep). The Tribunal also took note of the report by Mr. W. Barber,Consultant, World Bank on the Groundwater Resources of the CauveryDelta which not only indicated the Gross Ground Water Abstractionsfrom Cauvery Delta from 1971 to 1983 but also estimated the availablegroundwater to be 51.56 TMC. The Tribunal, on the basis of the reportssubmitted by the UNDP, Central Ground Water Board and Mr. Barberof World Bank, observed that the same, to great extent, supported thestand of Tamil Nadu that the re-charge of groundwater in the Delta areawas mainly due to releases from Mettur reservoir. It, however, markedthe admission of the State in its pleadings that the total groundwaterextraction during the year 1989 was approximately 28.4 TMC in theCauvery sub-basin, 7.3 TMC in the Vennar sub-basin and 11.3 TMC in

Athe Grand Anicut Canal area (new Delta area) totaling 47 TMC. Thestatement of Tamil Nadu in its pleadings that in the old Delta there wasscope for conjunctive use of groundwater to the extent of 30 TMC wasrecorded. Tamil Nadu, however, belatedly questioned the findings of theUNDP to be not fully representative of the area surveyed and in view ofbetter parameters for revaluation of the aquifers, as suggested by theBGround Water Resource Estimation Committee. But the Tribunal inabsence of any evidence adduced by Tamil Nadu to this effect, preferrednot to discard the reports of the UNDP. The issue was tested by theTribunal in the context of the variety of crops grown and the rainfallreceived through the South-West monsoon and North-East monsoon. ItCconcluded from the reports of the Irrigation Commission as well as ofthe Cauvery Fact Finding Committee that the North-East monsoon wasirregular and subject to frequent failures often accompanied with cyclonicformations in the Bay of Bengal resulting in high floods as well as largesurface runoff with many times even causing damage to the standingpaddy crop. On scrutiny of the report of the UNDP and the CentralDGround Water Board, the Tribunal concluded that as per the former,39.2 TMC of the groundwater was available in the old Delta, whereasas per the latter, the stock was limited to 30 TMC. The Tribunal notedthat this was in comparison to 28.79 TMC as estimated by Mr. Barber.It noted as well that qua the new Delta, UNDP had estimated at 32.6ETMC and Mr. Barber had estimated at 22.77 TMC. In the backgroundof such exhaustive studies by various agencies, the Tribunal observedthat in normal year when there would be regular releases of waterfrom Mettur, the bulk of contribution to the groundwater in the Cauverysub-basin would be from such releases, but in any case, the contributionfrom surface irrigation and rainfall could not be overlooked. All theseFnotwithstanding, the Tribunal, considering the severe limitation in theassessment of groundwater resource, made safe estimate of 20 TMCwhich could be used by Tamil Nadu conjunctively with surface water.The Tribunal clarified that this quantum was arrived at after excludingthe component of groundwater re-charge from river water by lateralGinfiltration.

P.5The principles of apportionment

195. The principles of apportionment of the waters of Cauvery,the gravamen of the dispute, next engaged the attention of the Tribunal.The fact that such principles for distribution of inter-state or internationalH

rivers like the principles of natural justice had been evolved and developedby the Courts from time to time over centuries, while adjudicating waterdisputes between different States or Nations were noted as the startingpremise. The Tribunal acknowledged that such disputes were directlylinked with the development in different spheres and demands for waterfrom such inter-state or international rivers could be traced to the rise inpopulation. It reminisced to record that most of the ancient cities andcivilizations had grown on the banks of such rivers because of the fertileland and easy communication but during the middle of the 19[th] centurythe industrial revolution and allied development, which brought prosperityto mankind, also bred conflict and dispute in respect of sharing of watersof such inter-State and international rivers. The perennial dissensionbetween the upper riparian States claiming an absolute right on the flowof water passing through their territories and the lower riparian Statesclaiming on the principle of right of easement was taken note of.196. The Tribunal ruminated that the resultant dispute anddisharmony called for balanced approach keeping in mind the interestof all the riparian states, the inherent question to be answered beingwhich State should get what proportion of water out of the total yield ofthe river concerned. Noticing that the demands of different States whenmuch higher than the total available water in the basin in question posedformidable challenges, the Tribunal recalled that the dispute about sharingof water of deficit river like Cauvery was more than one and halfcentury old as attested by the recorded facts. It took into account theassertion of the State of Tamil Nadu based on prescriptive right over theflows of river Cauvery as well as its right of prior appropriation being alower riparian State. In endorsement of this plea, the State had relied onthe relevant observations with regard to the doctrine of appropriationmade in the report of the Indus Commission of the year 1942 to theeffect that “priority of appropriation gives superiority of right”. TheCommission had remarked that the common law rule of riparian rightswas completely destructive of equitable apportionment for under thatrule, the upper owner could hardly take any share, far less than his fairshare of water of the river for the purposes of irrigation. In comparison,the doctrine of appropriation was consistent with equitable apportionmentprovided that the prior appropriator was not allowed to exceed reasonablerequirements. The fact that this doctrine was dictated by considerationsof public interest was noticed as well. The view of the U.S. SupremeCourt in State of Wyoming v. State of Colorado (supra) to the effect

Athat the cardinal rule of the doctrine that priority of appropriation givessuperiority of right was underlined. The Tribunal construed that the priorityof appropriation was concept different from past utilization of watersof the basin by one State or the other. It noted as well the reservation ofthe Supreme Court of United States in State of Nebraska v. State ofWyoming (supra) that for an allocation between the appropriating StatesBto be just and equitable, strict adherence to the priority rule might not bepossible though it may pose as the guiding principle. The Tribunal recordedthat past utilization or existing utilization had also been recognized as arelevant factor in proceeding for apportionment of waters of an inter-state or international river and conceptually was part of the evolutionCand development of river basin linked with the history thereof. It mentionedas well that though past utilization and existing utilization was relevantfactor in the matter of apportionment, yet there could be prevalentcircumstances in other riparian States outweighing the prevailing practiceso much so that in such an eventuality, such practice or use would berequired to be restricted or modified in reasonable manner.D197. The Tribunal also took note of the observations of the KrishnaWater Disputes Tribunal in its report under the heading “Protection ofExisting Uses” to the effect that in fixing the equitable share of theStates, the claims of such existing uses should be allowed before claimsfor future uses are taken up for consideration. It was, however, reiteratedEthat priority of appropriation, though the guiding rule, was not conclusivein equitable allocation. It recalled the observations of the U.S. SupremeCourt in State of Nebraska v. State of Wyoming (supra) where junioruses of Colorado were allowed to prevail over the senior uses ofNebraska having regard to Colorado’s counter-veiling equities andFestablished economy based on existing uses of water. The Krishna WaterDisputes Tribunal’s remark that equitable apportionment can take intoaccount only such requirements for prospective uses as are reasonable,having regard to the available supply and the needs of the other States,was referred to.G198. The Tribunal also adverted to the discussion recorded by theNarmada Water Disputes Tribunal in its report where it dwelt upon the“Relevant Factors in the Balancing Process”, where, amongst others,various determinants like extent of dependence of the riverine dwellerson the river flow, the size of the river’s watershed or drainage area andthe possibility of maintaining sustained flow through the controlled useH

of flood waters, seasonal variations in diversions, availability of storagefacilities or ability to construct them, availability of other resources, etc.had been enumerated. The Tribunal noticed the remark in the report thatthe doctrine of equitable apportionment cannot be put in the narrowstrait-jacket of fixed formula and that in determining the just andreasonable share of the interested States, regard must be had to thesefactors and beyond so that the allocation will be made according to theirrelative economic and social needs. In this regard, the volume of thestream, the water uses already been made by the State concerned, therespective areas of land yet to be watered, the physical and climaticcharacteristics of the States, the relative productivity of land in the States,the State-wise drainage, the population dependent on the water supplyand degree of their dependence, extent of evaporation in each State andthe avoidance of unnecessary waste in the utilization of water were alsofactors to be applied.

199. The Tribunal also referred to the reports of the GodavariWater Disputes Tribunal and Ravi and Bias Water Tribunal to underlinethe primacy of the recognition of equal rights of the contending States toestablish justice between them over the claim of absolute proprietaryrights in river waters. The reports explained that equal right, however,did not mean an equal division of water but implied an equitableapportionment of the benefits of the river, each unit getting fair share.

200. With the third view gaining increased recognition andapplication in the resolution of water disputes involving the issue ofallocation and distribution of waters of an inter-state river, the Tribunalin reiteration noted the observations of the U.S. Supreme Court in Kansasv. Colorado (supra) that the right of flowing water is well-settled to bea right incident to property in the land and it is right publici juris andis of such character that whilst it is common and equal to all throughwhose land it runs and that no one can obstruct or divert it, yet it is oneof the beneficial gifts of providence so that each proprietor has right toa just and reasonable use of it as it passes through his land as long as itis not wholly obstructed or diverted or no larger appropriation of thewater running through it is made than just and reasonable use. TheTribunal further held that it cannot be said to be wrongful or injurious toa proprietor lower down if there is jus case. The theme was furtherelaborated in Colorado v. Kansas (supra) with the elaboration that thelower State is not entitled to have the stream flow as it would in natureregardless of the need or use and if then the upper State is devoting the

Awater to beneficial use, the question would be, in the light of existingconditions in both the States, whether and to what extent her action,injures the lower State and her citizens by depriving them of like or anactually valuable, beneficial use. The observation of the U.S. SupremeCourt in State of New Jersey (supra) that river is more than an amenitybeing treasure and that the competing riparian states have real andBsubstantial interests in it requiring best reconciliation thereof washighlighted. It noted the exposition of the U.S. Supreme Court in Stateof Connecticut (supra) that “equality of right” applied to settle disputeswith regard to allocation of water would not connote equal division ofwaters of an inter-State stream but would mean that the principles ofCright and equality should be invoked having regard to the “equal level orplane” on which all the States stand, in point of power and right underthe Constitutional system.

201.The determination of the U.S. Supreme Court in State of Coloradov. State of New Mexico (supra) that the rule of priority should not beDstrictly applied where it would work more hardship on the junior userthan it would bestow benefits on the senior user, was recorded. Theopinion of Chief Justice Burger in the said decision to the effect thateach State through which the river passes has right to the benefit ofwater, but it is for the Court, as matter of discretion, to measure theirrelative rights and obligations and to apportion the available waterEequitably, was taken note of in particular. The following passage fromthe Halsbury’s Laws of England, 4[th] Edition, Vol. 49(2), paragraph 121was extracted to underscore the parity in the rights of co-riparianclaimants to reasonable enjoyment and use of the water:-

“121. Rights and duties as to quality of water. The right of aFRiparian owner to the flow of water is subject to certainqualifications with respect to the quantity of water which he isentitled to receive. The right is subject to the similar rights ofother Riparian owners on the same stream to the reasonableenjoyment of it, and each Riparian owner has right of action inrespect of any unreasonable use of the water by another RiparianGowner...

Riparian owner must not use and apply the water so as tocause any material injury or annoyance to his neighbours opposite,above or below him, who have equal rights to the use of thewater and an equal duty towards him.”

202. The Tribunal next marked the advent of the Helsinki Rulesof 1966 which rejected the Harmon doctrine and laid emphasis on theneed of equitable utilization of such international rivers. The said Rulesrecognize equitable use of water by each basin State setting out thefactors, not exhaustive though, to be collectively taken into considerationfor working out the reasonable and equitable share of the riparian states.The indicated factors, inter alia, include the geography of the basin, thehydrology of the basin, the climate, past utilization of waters, economicand social needs of each basin State, population dependent on the watersof the basin in each basin State, availability of other resources and thedegree to which the needs of basin State may be satisfied withoutcausing substantial injury to co-basin State. The emphasis clearly isthat in determining the reasonable and equitable share, all relevant factorsare to be considered together and conclusion is to be reached on thewhole.

203. The Tribunal, in this regard, recalled that this Court in thePresidential Reference in which the “Karnataka Cauvery BasinIrrigation Protection Ordinance, 1991” fell for scrutiny had reiteratedthe same law and principles to govern the equitable allocation of waterof an inter-state river between the different riparian States. Paragraph72 of the decision rendered by this Court in the said proceedings wasextracted.

204. In the background of the above exposition, the Tribunalrecorded that so long as the river flows are not wholly obstructed ordiverted or appropriation of the water by the upper riparian States is notmore than just and reasonable use, it cannot be said to be wrongful orinjurious to the right of the lower riparian State. It stated that equitableapportionment would, thus, protect only those rights to the water thatwere reasonably required and applied especially in those cases wherewater was scarce or limited. It emphasized that the water of riverbeing treasure in sense, wasteful or inefficient use thereof cannot beapproved and only diligence and good faith would keep the privilegealive. It, however, reflected that the theory of equitable apportionmentpre-supposed equitable and not equal rights and any order, direction,agreement or treaty has to take into consideration the economic andsocial needs of different riparian States. It reiterated that whiledetermining the reasonable and equitable share, all relevant factors areto be cumulatively considered.

A205. The Tribunal also took into consideration the report of the71[st] Conference of the International Law Association held in Berlin inAugust 2004 where the relevant factors necessary for determining anequitable and reasonable use were again outlined. The factors mentionedin the Helsinki Rules were retained along with precise emphasis on theprecept of collective consideration thereof for reaching conclusionBqua apportionment of just and equitable share of water of an inter-stateriver. Apart also from adverting to the “The Campione Consolidation ofthe ILA Rules on International Water Resources, 1966-1999” whichsubstantially reiterated the above principles, the Tribunal also remindeditself of the verdict of this Court that it was an acknowledged principleCof distribution and allocation of waters between the riparian States thatthe same has to be done on the basis of equitable share of each state,however leaving it open to decide such equitable share depending on thefacts of each case. The Tribunal, thus, concluded that no doubt that prioruse has to be given due weight because cultivators have been irrigating

their lands in the lower riparian State as in the Delta in the case in handDfor centuries, but that factor has to be taken into consideration alongwith several other factors for the purpose of determination of the justand equitable share of water amongst the competing riparian states,more particularly when the resources in demand were in short supply.The Tribunal, therefore, held the view that though past utilization was aErelevant factor, yet it was possible that the circumstances in the otherriparian States could be such that their demands for reasonable sharemight outweigh such past utilization of any particular riparian State and,consequently, the Courts and Tribunals would have ample power fortaking into consideration the overall relevant circumstances to curtailand modify the past uses by any riparian State. This was more so inFview of Article IV of the Helsinki Rules which clearly indicate that eachbasin state is entitled within its territory to reasonable and equitableshare in the beneficial uses of the waters of an international drainagebasin.

206. Reverting to the contextual facts and the controversy foundedGthereon, the Tribunal analyzed the existing scenario and observed thatprior to the year 1924, the river Cauvery was in state of flow in thesense that whatever water came from the source and the tributaries inthe State of Mysore and Madras used to pass through the Delta and theutilization of Cauvery water within the State of Mysore was negligibleH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

compared to that in the State of Madras especially in the Delta area. Itfurther observed that the utilization of Cauvery water so far as Keralawas concerned was virtually nil. The situation started changing with theconstructions of reservoirs in Mysore and Mettur in Madras for whichthe flow of water of Cauvery was regulated to great extent.

207. The Tribunal apprised itself of the background and observedthat the main development and utilization of Cauvery basin before 1924occurred in Madras mostly in the Delta area and it being the lowerriparian State, enjoyed almost full flow of river Cauvery as well as itstributaries. It noted that as per the report submitted by the Cauvery FactFinding Committee in the year 1972, the inter se utilization of waters ofCauvery by Tamil Nadu including the Karaikal region of Union Territoryof Puducherry, Mysore and Kerala used to be 566.60 TMC, 176.82TMC and 5 TMC respectively. In the background of the Agreements of1892 and 1924, the Tribunal recapitulated the persistent protests of theState of Karnataka qua the restraints put on it on the use of the watersof the Cauvery river for which it was not possible on its part to irrigatelands even as contemplated under the Agreement of 1924. The pleabased on judicially enounced view that neither the upper riparian Statecan claim paramount right to appropriate more water than what is itsreasonable requirement nor the lower riparian State can claim anyprescriptive right to the flow of water was noted. The Tribunal, thus,accepted, as its guide, the principle that the waters of an inter-State orinternational river are to be shared in just and equitable manner so asto serve the need and necessity of each riparian State.

P.6 Determination of “irrigated areas” in Tamil Nadu andKarnataka

208. With reference to the norms suggested by the party-Statesfor apportionment of Cauvery waters for pre and post Agreement of1924 in the context of the irrigated areas corresponding to this timephase, the Tribunal enumerated the following four categories, the needsof irrigation whereof were required to be addressed:-

“(i) Areas which were developed before the agreement of theyear 1924.

(ii) Areas which have been contemplated for development interms of the agreement of the year 1924.

A(iii) Areas which have been developed outside the agreementfrom 1924 upto 2.6.1990, the date of the constitution of theTribunal. (i.e. from 1924 to 1990)

(iv) Areas which may be allowed to be irrigated on the principleof equitable apportionment.”

209. Having laid the preface for the discernment of the areasdeveloped for irrigation in the competing States prior to, under and beyondthe Agreement of 1924 and also areas which could be allowed to beirrigated on the principle of equitable apportionment, the Tribunal tookup the claims of the competing States in succession.

210. Qua the areas developed by Madras/Tamil Nadu, it principallyadjudged the entitlements on the touchstone of Clauses 10(v), 10(xii)and 10(xiv) of the Agreement of 1924 together with the AdministrativeReport, 1923-24, CFFC Report, 1972, C.C. Patel Committee Report aswell as the reports of the Irrigation Commission and National CommissionDfor Agriculture, 1976. While accounting for the water requirement forthe second crop in the irrigated areas grown prior to and in terms of the1924 Agreement, the same was disallowed for the areas beyond it. Havingregard to the scarcity of water resources in the Cauvery Basin and theprinciple of equitable apportionment, it noted that the practice of doublecrops in the same field during an agricultural season required more waterEand, thus, the areas where the cultivable land is more and the availabilityof water is constraint, the projects are designed to cover larger areasfor cultivation of light irrigated crops. It observed that since paddy washigh water consuming crop, it would cover smaller areas than semi-drycrops which needed lesser water for which the extent of areas couldFsometimes be 2 to 3 times. Having regard to the fact that in countrylike India, where the bulk of population was engaged in agriculture forits livelihood, the Government policy was to cover as large area aspossible, concept known as “Extensive Irrigation”. It was of the viewthat in water deficit basin like Cauvery, the annual intensity of irrigation(Annual Intensity of Irrigation means acreage – area under irrigation) isGa very significant factor and needed to be considered keeping in viewthe large number of small farmers for sustenance of their livelihood andbearing that in mind, it construed it to be proper to restrict the annualintensity of irrigation to 100% and, accordingly, allowed the extent ofareas to be irrigated in each State depending upon the availability ofHwater. It referred to the CFFC Report vis-a-vis Tamil Nadu wherein it

was observed qua the crops of Kuruvai, Samba and Thaladi that savingscould be effected by (i) restricting the double crop paddy area; (ii)introduction of shorter duration variety in place of Samba and; (iii) growingcrops requiring less water.

211. The Tribunal, thus, determined the necessity to restrict thedouble crop area as far as possible. Further, the recommendation of theNational Commission on Agriculture, 1976 to the effect that rice shouldbe grown in no rainy season area or low rainfall areas only if the availableirrigation supplies cannot be put to more economic use for other cropswas noted in endorsement of this finding. It noted as well the opinion ofDr. M.S. Swaminathan, witness for the State of Tamil Nadu, to thesame effect.

212. Keeping in mind the fair and equitable share principle, itexpressed that in order to assess reasonable water requirements, it wouldbe essential to first consider the extent of areas which had already beendeveloped vis-a-vis the development permitted under the Agreementand thereafter consider the just and fair claim of development for irrigationas placed by the party-States before it. It noted that the total claim ofthe party-States for development of irrigation in the territories did farexceed the availability of waters which called for imperative restrictions.It mentioned that in the State of Tamil Nadu, the entire development inthe past and future was based on paddy cultivation which was highwater consuming crop and the State had almost reached the ultimatepotential of its irrigation development by 1974 as was evident from theCFFC Report and also as claimed by it. In contrast, qua Karnataka, theTribunal marked that in the past, it had been growing paddy wherever itcould get irrigation facility but could not complete the development ascontemplated under the 1924 Agreement by 1974. It, however, notedthat the State of Karnataka had embarked on the construction of reservoirschemes some years previous to the completion of 50 years of the 1924Agreement and along with the progress of the reservoirs, kept on releasingwaters to the newly opened areas for irrigation so that by the year 1990,its contemplated development was almost thrice in extent to thedevelopment achieved in 1974. The fact that in comparison, Kerala couldhardly mark any development of irrigation except under minor irrigationin total area of about 50,000 acres till 1990, was noticed. The Tribunaltook up the task of ascertaining the extent of development which couldbe allowed to the party-States and the crop water requirement thereforso that fair and reasonable allocation of surplus water would become

Apossible. It observed that for equitable distribution, one of theconsiderations ought to be the existing development of irrigation. Keepingthis in view, the double crop developed beyond the provisions of the1924 Agreement, whether in Tamil Nadu or in Karnataka, was not takennote of. The Tribunal was, in this regard, also impelled by the fact thatequity demanded that the farming families should at least be having oneBsingle crop which they could raise for their livelihood with the support ofirrigation facilities and thereby derive the benefit from the natural riverwater resources which was common to all. In this respect, the Tribunalunderlined that the paddy crop should be so planned as to make maximumadvantage of the rainy season in the Cauvery basin area, relaxationChowever being extended to areas over which second paddy crop wasbeing grown prior to the Agreement of 1924 as well as second croppermitted by the said Agreement by way of extension. While identifyingthe areas developed or undergoing development in the State of TamilNadu beyond the entitlements contemplated in the 1924 Agreement, theTribunal applied the following criteria, namely, no double crop/perennialDcrop de hors the 1924 Agreement; no area for summer paddy; the areaof summer paddy raised prior to 1924 to be replaced by semi-dry crop;annual intensity of irrigation to be restricted to 100%; cropping period tobe restricted within the irrigation season, i.e., from 1[st] June to 31[st] Januaryand ambitious Lift Irrigation Schemes to be discouraged. Apart fromEthis, the Tribunal excluded the areas beyond the Cauvery Basin as wellas those utilized for high water consuming crop like sugarcane. Keepingin view the shortfall in supply of water, the Tribunal, based oncontemporaneous data, did also scale down areas proportionately undersome schemes but did account for dry areas sought to be catered by thecorresponding projects.F

213. Applying these principles generally, after an exhaustiveanalysis of the relevant facts, it did fix the areas under the afore-mentionedfour categories qua Madras/Tamil Nadu as hereinbelow:

(i) Area under irrigation in Madras/Tamil Nadu prior to 1924GAgreement = 15.193 lakh acres.(ii) Area for development as per the provisions of 1924Agreement = 6.19 lakh acres.

(iii) Area developed/under ongoing development beyond theentitlements contemplated in the 1924 Agreement between 1924and 1990 = 2.06 lakh acres.H

214. Thus, the Tribunal under the above three heads together withthe area developed/under minor irrigation, which it ascertained to be1.25 lakh acres, determined the total area in Tamil Nadu which had beendeveloped prior to 1924 along with those developed under ongoingdevelopment in the State beyond the entitlement contemplated under the1924 Agreement upto 1990 at 24.71 lakh acres. As the narration to thiseffect would demonstrate, the Tribunal, while determining this area as awhole, did take note of the crop pattern, the locations thereof in theBasin with reference to the corresponding projects/schemes/channels,etc. and the area developed under minor irrigation.

215. In the process of examination of the claim of the State ofKarnataka with regard to the development of the irrigated areas in theState in the Cauvery Basin, the Tribunal as in the case of Tamil Nadu didcast its scrutiny over the same four categories, namely, areas developedbefore the Agreement of 1924; those contemplated for development interms thereof; those developed outside the Agreement up to 02.06.1990and the areas which could be allowed to be irrigated on the principle ofequitable apportionment. It noted that at the commencement of thecentury, irrigation in the then State of Mysore was mainly from directdiversion channels from the rivers together with the system of tankirrigation which was mentionably quite widespread. As there was noreservoir, the waters of the Cauvery and its tributaries like Kabini,Hemawathy, Harangi and Suvaranwathi used to flow through the Statebut their ultimate destination was the Delta area of the then State ofMadras. The Tribunal mentioned that prior to the 1924 Agreement,irrigation in Mysore was mostly through Anicut Canal and minor irrigationand as admitted by the State of Tamil Nadu in their statement, Karnatakahad developed only 3.14 lakh acres of land by 1924. Karnataka, however,stated that its irrigated area under the projects at the time of the 1924Agreement was 3.1 lakh acres which increased to 3.14 acres in 1928.On an analysis of the facts available on record, the Tribunal acceptedthe irrigated area of the State of Karnataka before 1924 to be 3.43 lakhacres which, of course, included areas covered by minor irrigation.

216. In respect of the entitlement of the States in terms of theAgreement of 1924, the Tribunal referred to, in particular, Clauses 10(iv),(xii), (xiii) & (xiv) to determine the new development of irrigation andextension of irrigation thereunder. It noted that there was no time limitfor the envisaged development of irrigation under the various clauses of

Athe Agreement and proceeded on the premise that once the constructionon the project envisaged under any term/clause thereof had been started,that ought to be considered as permissible even though its completiondate had spilled over 1974. The relevant provisions of the Agreementwere referred to precisely to recall the entitlements of the parties theretoas defined thereby permitting extension/development of the areas forBirrigation in the time to come. To draw sustenance for the view that itwas permissible to take account project, the construction whereof hadbeen started under any term/clause of the Agreement of 1924, thoughthe completion date thereof was after 1974, the Tribunal referred to thedecision of the U.S. Supreme Court in State of Wyomoing v. State ofCColorado (supra) as well as Article VIII (2)(a) of the Helsinki Rulesto the effect that project was entitled to priority from the date whenthe actual work of construction had begun and not from date anteriorto the time when there was fixed and definite purpose to take it up andcarry it through. On this basis, the plea of the State of Tamil Nadu to thecontrary was negated and it was concluded that all the projects on whichDconstruction had started prior to 1974 would be covered under CategoryII (entitlement under the terms of the 1924 Agreement) irrespective ofthe date of completion provided those projects did qualify otherwise underany of the clauses of the Agreement. From the materials on record, the

Tribunal noted that the development achieved by Karnataka under theE1924 Agreement till 1974 under Clauses 10(iv), (xii), (xiii) and (xiv) takentogether was 2.15 lakh acres, though it was entitled to achieve 7.45 lakhacres. It also recorded that the planned irrigated area claimed byKarnataka under the Agreement was 14.18 acres (net), i.e., single cropand 17.04 lakh acres (gross) indicating single + second crop. Thesefigures represented the statistics both prior to and after 1974. It wasFnoted that the State had claimed second crop area under the projectsinvolved while setting out the gross plan area of irrigation as 17.046 lakhacres which included 2.862 lakh acres as second crop area.

217. The Tribunal undertook an exhaustive exercise to examine

the tenability of the claim under the aforementioned clauses of theGAgreement and accepted the area permissible for development ofirrigation under the 1924 Agreement, i.e., Category II to be 7.23 lakhacres. As would be evident from the table, while allowing this figure,the Tribunal did take into account the variety of the crops involved andthe extent of their coverage/acreage (which included Kharif Paddy,HPerennial Crops, Kharif semi-dry crop, Rabi-semi dry crop). The Tribunal

recorded that like Tamil Nadu, the State of Karnataka had extendedirrigation by way of minor irrigation and there was extension of newareas under the existing projects and new projects after 1974.

218. Vis-a-vis the areas developed/under ongoing developmentin the State beyond the entitlements contemplated in the 1924 Agreementupto the year 1990, the Tribunal marked the claim of the State ofKarnataka to be 20.98 lakh acres under various projects. Having regardto the date of the reference of the dispute to it, it adopted 1990 to be thecut-off year for considering the equities between the party-States in thematter of ascertaining the requirement of water. It, therefore, as acorollary, decided to take note of the developments that had taken placein between. Dealing with the plea of the State of Tamil Nadu that therelevant date for the apportionment should be 1974 when the period of50 years from the date of execution of the Agreement of 1924 hadexpired, the Tribunal observed that no attempt had ever been made bythe State of Tamil Nadu either before it or before this Court to contendthat the areas which could be irrigated during the pendency of theproceedings should be those which had been developed by Karnatakaonly upto the year 1974 and on the other hand, the parties had pursuedtheir claim of apportionment of water with reference to the constitutionof the date of the Tribunal.

219. With regard to the claim of the State of Karnataka in respectof the area of planned development as made by it in June, 1990 as 20.98lakh acres, the Tribunal observed that it included areas developed priorto the Agreement of 1924, permitted in terms of the said agreement anddeveloped or committed for development outside the Agreement uptoJune, 1990, though such areas had been planned and schemes had beenput into execution much before the cut-off year. From the data furnishedby the State of Karnataka in support of its area of development as inJune 1990 to be 20.98 lakh acres, the Tribunal discerned that the additionalarea which was under progress for irrigation development outside theAgreement was 10.30 lakh acres, by that time.

220. In the process of verification of the claim under this head,i.e., areas developed or under ongoing development beyond the entitlementunder the Agreement of 1924 and upto the year 1990, the Tribunalexamined the relevant facts qua every individual project and returned afinding that the State of Karnataka was entitled to an area of 6.91 lakhacres. To this, an area of 1.26 lakh acres was allowed under minor

Airrigation. Thus, in all, the Tribunal allowed 18.85 lakh acres of areaunder Categories I, II and III, i.e., area existing under irrigation prior to1974, permitted to be developed under the different provisions of theAgreement and the area and minor irrigation works during the periodform 1924 to 1990.B221. In arriving at this figure, the Tribunal did not take note of the

B221. In arriving at this figure, the Tribunal did not take note of thedevelopment of the second crop in view of the scarcity of water in theBasin and considered each item of claim on the yardstick of merit andequity, judged on the touchstone of the entitlements under the Agreementand the ground realities. In many cases, it kept in mind the rainfall patternand support and restricted the crop variety apart from suggesting theCtimings thereof. The scope of several projects were limited/curtailed onthe index of 100% annual intensity of irrigation and ayacuts (irrigatedareas) served by gravity flow were generally allowed and those tendedby lift schemes were excluded. To ensure economy of consumption ofwater, crop pattern was also suggested. The Tribunal, however, clarifiedDthat though the claims of the States had been examined in respect ofareas requiring irrigation in the four categories, none of these was to getany priority or precedence over the other in the matter of allocation ofwater and all were to be treated at par according to the respective needand necessity.EP.7 Assessment of water for “irrigation needs” in Tamil Naduand Karnataka

222. The Tribunal next delved into the exercise of making anassessment of the water required for irrigation for the areas delineatedfor the competing States. It noted that on the aspect of such requirement,Fthe States had produced documents including information provided inthe common format and had examined witnesses who are experts in thefield. It was indicated in particular that having regard to the demand ofthe States, i.e., 566 TMC by Tamil Nadu, 466 TMC by Karnataka, 100TMC by Kerala and 9 TMC by Union Territory of Puducherry, somecurtailments were indispensable in view of the total yield of the BasinGcomputed on 50% dependability at 740 TMC. The Tribunal in order toensure equitable share to each State, adopted the following considerationsfor the purpose:-

“i) The State of Tamil Nadu was having three paddy crops inthe delta area as well as in some other areas. In the same field

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

they were having first Kuruvai and followed by Thaladi and inthe rest, Samba crop which takes longer time to mature wasbeing grown. After examining the records it appeared thatMadras/Tamil Nadu was having Kuruvai followed by Thaladi inabout 95,000 acres prior to the agreement of the year 1924 inthe delta area. From the agreement of 1924 read with itsAnnexures it shall appear that the State of Madras was allowedto extend double crop in the same field by 90,000 acres (70,000acres in the old delta and 20,000 acres in the Mettur Projectarea). The total being 1,85,000 acres. The practice of growingdouble crop by the cultivators in the aforesaid area of 95,000acres was being followed much before the execution of theagreement; it is difficult to direct to discontinue that practice.Same is the position so far the balance of 90,000 acres areconcerned because that was permitted under the terms of theagreement and has been specifically mentioned in the CauveryMettur Project Report (1921) as well. All these aspects havebeen discussed in earlier chapters. But it is an admitted positionthat State of Madras/Tamil Nadu with the copious flows of waterbeing available started growing double crop of paddy in the samefield in different areas. The total of such areas has been discussedin earlier chapters. Similarly Karnataka also followed practiceof growing double crops which were not permitted by theagreement. In this background it is considered necessary in theend of justice not to take note for the purpose of apportioning thewaters of inter-State river Cauvery in respect of growing secondpaddy crop or any other crop in the same field in the sameagriculture year except in the areas in which these practiceswere being followed prior to 1924 agreement or was specificallypermitted under the terms of the agreement.

ii)The State of Karnataka under the terms of the agreementof the year 1924 was allowed to grow sugar-cane only on 40,000acres which it has raised to about 70,000 to 90,000 acres. It iswell known that crop like sugarcane requires much more water,affecting equitable distribution of waters. Therefore, note is beingtaken of areas for sugarcane only upto 40000 acres as providedin the agreement for the purpose of apportioning the waters ofinter-State river Cauvery .

Aiii) It is admitted position that both the States were having summercrop including summer paddy from the waters of river Cauvery.When there is so much scarcity of water in the basin, they haveto be restricted from growing any summer paddy except in somearea where it was being grown prior to 1924 agreement, eventhat is to be replaced by any light irrigated crop within the irrigationBseason.

iv) The delta of water claimed on behalf of the two States inrespect of different crops including paddy have to be reduced inview of the new variety of paddy and other inputs which havebeen developed of late which require lesser delta of water.

v) Trans-basin diversion takes out the water of the basin toanother basin. As such no note is being taken for the purpose ofdetermining the need and the equitable share of the each Statein the waters of the inter-State river Cauvery in respect of anytrans-basin diversion already made or proposed for providingDextra waters.

vi) Lift schemes will not be considered for water allocation.”

223. The stand of the two States, i.e., Tamil Nadu and Karnataka,that admittedly the water requirement of the crops over the years (afterE1920) have been reduced with the new variety of seeds of paddy andsemi-dry and dry crops was recorded. The position taken by the Stateof Karnataka that it was not going to grow wet crop which consumedmore water in the new project areas and that only semi-dry crops couldbe grown thereafter and water would be provided according to therequirements of the plans was noted as well. After the examination ofFthe expert witnesses produced by the States and in course of thearguments, the Tribunal, by its order dated 12.11.2002, required the Statesto file affidavits furnishing details of the water requirement as well asthe crops which they were growing with an indication of the minimumcrop water requirement in view of the scarcity of water in river Cauvery.GResultantly, Tamil Nadu filed its affidavit on 08.07.2004 (Ext. TN 1665)and Karnataka did so on 28.03.2003 (Ext. KAR 518) providing the detailsof, amongst others, the crops, the requirements of water including theDelta (water depth) required in different seasons in different projectsand also supported the data furnished with various documents. It isnecessary to state here that the acceptance of Tamil Nadu’s affidavitHhas been seriously questioned before on the simon pure reason that the

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

deponent was not made available for cross-examination. In defence ofthe affidavit, it is the stand of the State of Tamil Nadu that it was acompilation of all that had been brought on record earlier. We have alreadydealt with the same. We only repeat that what is admissible having alreadybeen recorded on any public report shall alone be looked into.

224. The Tribunal mentioned that till 1928, the States of Mysoreand Madras did resort to age old cultivation mostly of paddy crop whereverirrigation facilities were available in the Basin and whereas in Mysore,the paddy cultivation was provided irrigation through anicut canals ortanks, the same was the case also in Tamil Nadu where bulk of paddycultivation was in the Cauvery Delta Area fed by Grand Anicut andthrough other Anicuts across Cauvery, Bhavani and Amaravathi andlater on, with the installation of the Krishna Raja Sagara Reservoir (KRS)and the Mettur Reservoir as per the provisions of the 1924 Agreement,Mysore and Madras respectively extended their irrigation to new areas.The Tribunal noted that though after the construction of these two majorreservoirs facilitating large scale irrigation facilities, the bulk of cultivationin both the States remained confined to Paddy crop, yet in Karnatakasugarcane which is perennial crop was also resorted to.225. The Tribunal next took on record the existing crops of thetwo States as per the information furnished in their common formats.Qua Tamil Nadu, it recorded that in respect of the Cauvery Delta system,“Kuruvai” and “Thaladi” crops of paddy and Samba crops were beinggrown. In other projects of the State, sugarcane, banana and other crops(groundnut and garden crop) had been introduced from 1980 onwards.Besides, in the Anicut system, summer paddy in some projects had alsobeen introduced. Tamil Nadu in its common format indicated as wellthat the normal pattern in the Cauvery Basin was to raise the first cropof short duration paddy known as “Kurubhai” in June with the waters ofSouth-West monsoon flowing down the river whereafter second cropof paddy of medium term duration known as “Thaladi” was grown onthe same area with the benefit of North-East monsoon to be harvestedby January – February. It was stated that in the rest of the areas, onlyone single crop of paddy of long term duration known as “Samba” wasgrown from July/August to be harvested in December/January. In additionthereto, in other riverine tracks subject to availability of supply, two paddycrops were being grown followed by cash crop like green gram andblack gram.

A226. Karnataka, in its statement, elaborated on the crop patternby indicating that in the Cauvery Basin in the State, Ragi, Jawar, Sesame,Groundnut, Redgram and short duration pulses were common Kharifcrops (monsoon crops) under rain fed conditions and in some areas,where there were pockets of retentive soils or where late rain occurred,some Rabi crops like Jawar, Bengalgram and cotton were beingBcultivated. It was indicated as well that failure of rains was very commonin these areas which were, as such, severely drought prone for whichappropriate doses of irrigation were necessary to help increase theproductivity and stability of the yield. It was explained that in the CauveryBasin, particularly in the old irrigation projects in Karnataka, rice andCsugarcane were the main crops under irrigation, but in years of inadequatemonsoons, rice was discouraged and light irrigated crops like ragi,groundnut, etc. were grown in rabi/summer. Karnataka explained furtherthat in the new irrigation projects, there was no provision to grow paddyeven during Kharif season except in limited areas to limited extent. It

was underlined that irrigation in the State, including the Cauvery BasinDProjects, was aimed at extensive rather than intensive use of water toafford protection to the drought affected areas. It was also mentionedthat in all the new projects, emphasis was on the growing of light irrigatedcrops and that cropping pattern was largely Kharif and to limited extentRabi. Karnataka stated that in the irrigated areas, rice was the pre-Edominant crop, whereas in the light irrigated areas, Ragi was the maincrop followed by maize and potato and that depending on the availabilityof water, sugarcane, mulberry, coconut and other fruit crops were alsogrown. The Tribunal referred to the report of the National Commissionof Agriculture, 1976 which mentioned that in India, rice was grown inabout 40% of the irrigated area under all crops and that rice crop wasFthe largest consumer of irrigation water accounting for 50% of the totalirrigation supply, next to that it was wheat which consumed 15% followedby other cereals which accounted for 12% of the irrigation supplies.The report, as the Tribunal has noted, inter alia, recorded that in thesouthern States, wherever the heavier black cotton soil was located inGthe valleys and the lighter red soils were higher up, it was goodarrangement to confine growing rice in the valleys and reserving thelighter soils for light irrigated crops, as otherwise apart from consumingmore water, due to greater percolation losses, the percolated water wouldmake the heavy soil lower down soggy, thereby rendering it unfit forgrowing any crop other than rice. The Tribunal noted the view of theHSTATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

National Commission on Agriculture that rice should be grown preferablywhere there was good support of rainfall which had permeability ofless than 5 mm per day and that as water resources were scanty, irrigationsupplies, more particularly to the low rainfall areas, was required to beput to the most economical use to extend the benefit of irrigation to aslarge number of people as possible. This view was subscribed to byDr. M.S. Swaminathan, renowned agricultural scientist, who wasexamined as an expert witness for the State of Tamil Nadu and whoendorsed the recommendation of the Commission that second ricecrop, particularly in the non-rainy season, should be grown in an areaonly if the irrigation supplies cannot be put to better use. The witness,however, observed that as soil and climate in the Delta area in TamilNadu was very conducive for growing paddy, there should not be anyrestriction on the number of paddy crops grown in the same field in thesame agricultural year. The Tribunal was of the view that having regardto the principles of equitable apportionment, the approach in the matterof allocation ought to be balanced so much so that the upper riparianStates have equal right to develop along with those located in thedownstream. It reminisced the stages of evolution of the principle ofequitable apportionment, now recognized throughout the world, to meetthe necessity of the dependent millions of riverine dwellers justifyingthat one crop in one agriculture year to every cultivator ought to beallowed. It also recalled its decision to permit growing of “Kuruvai” and“Thaladi” along with “Samba” in the areas which were grown prior tothe Agreement of 1924 as well as in the areas permitted by the Agreementof 1924. It, however, keeping in view the shortage of water in the Basin,reiterated that the second crop beyond the areas covered by the abovetwo categories could not be permitted. Vis-a-vis Karnataka, the Tribunalrecounted that as paddy and sugarcane were more water consumingcrops, they had been restricted to the areas for the period prior to 1924as well as permitted under the terms of the Agreement. The evidenceof Dr. I.C. Mahapatra, the expert witness for the State of Karnataka,that suitable cropping pattern in the State would include ragi, pulses, oilseeds, sugarcane and one crop of rice along with horticultural crops offruits, flowers and useful areas was taken note of. His testimony to theeffect that two crops of rice which were being cultivated in some partsof Karnataka ought to be discouraged was also accounted for. TheTribunal took on record the statement of this witness to the effect thatTamil Nadu had two or three crops of rice in different parts of the State

Aas the temperature in the Cauvery Delta was not limiting factor. Thewitness, however, emphasized on the rainfall pattern to design thecropping model depending on the relation to water availability. In responseto query, this witness observed that the farmers of Tamil Nadu wereanxious to grow Kuruvai crop, as it was short term crop and itscultivation process in putting fields saplings, etc. could be started by theBend of June. The Tribunal mentioned that for growing Kuruvai, the Stateof Tamil Nadu was primarily dependent on the release of water byKarnataka to Mettur reservoir.

227. The Tribunal next adverted to the evidence ofDr. J.S. Kanwar, expert witness on behalf of the State of Karnataka,Cwho, in his affidavit, analyzed the various aspects of managing agriculturein the drought areas in the Cauvery Basin lying in the State. Itcontemplated area receiving less than 750 mm rainfall over 20% of theyear as drought areas where the percentage of irrigated areas was lessthan 30% of the culturable area. The fact that 28 Taluks in Karnataka

Dhave been identified as drought-prone areas by the Irrigation Commissionwithin the Cauvery Basin was taken note of by the Tribunal, moreparticularly with reference to the details thereof as furnished in theaffidavit of the witness. The testimony of Dr. Kanwar to the effect thatthe lands in Karnataka were mostly red sandy soil and red loamy soilwhich have low water holding capacity requiring artificial irrigation byEway of artificial supplies and not by pattern of rainfall as is available inthe drought areas of the States and that 28 drought prone taluqs, thus,necessarily needed protected irrigation for mitigating the effect of drought,was taken note of.

228. The Tribunal marked the definition of “crop waterFrequirement” as provided in the Government of India guidelines as thedepth of water needed for achieving full production potential. The factthat the crop water requirement takes note of the topography of theland, water in-take characteristics of the soil and its irrigability classbesides climatic conditions was noticed. It also took into account theGobservations of the CFFC with regard to the nature of crops whichwere grown in the two States. In Mysore, mostly all the crops weregrown in the Kharif season alone, and the extent of rabi and summercrop was very small, and the areas under ragi, jowar, pulses, etc., whichwere mostly rain-fed, were predominant. For Mysore, the CFFCconcluded that ragi was the major crop accounting for 44% of the areaH

followed by paddy claiming 21%. It mentioned as well that the cropseason in the State for paddy was from June - July to December-January.

229. Vis-a-vis Tamil Nadu, the Cauvery Fact Finding Committeeexpressed that the Cauvery delta was the most important agriculturaltrack and almost the entire area was under paddy. It was mentionedthat agricultural operations in the Delta start with the advent of freshets(rush of fresh water) in the river with the commencement of South-West monsoon and the Mettur reservoir is opened for irrigation onlywhen the said monsoon actively sets in. It affirmed that in some areas,the first crop of paddy “Kuruvai” is grown with 105 days duration andafter the harvest of this crop, second shorter duration crop known as“Thaladi” is grown. It also mentioned about the long term crop “Samba”of 180 days duration which was major crop in the Delta. The Tribunal,in the above premise, observed that the practice was necessary to bechanged and the water depths (Delta), which were provided by theseStates for their crops were required to be revised in order to ensure afair deal to all the cultivators of the Basin States. Referring to the CFFCReport, the Tribunal took cognizance of the fact that in the old channelsin Karnataka, the Delta varied from 5.2 ft to 6.3 ft. and in the newerprojects from 5.3 ft. to 6.6 ft. which suggested that even in the newersystems, the high Delta indicated excessive use. The Tribunal also didnot disregard the observation of the CFFC that in the circumstances, ifthe Kharif Ragi could be grown under irrigated conditions instead ofpaddy, there would be saving in water without any economic detrimentto the farmers. The fact that Karnataka had categorically stated beforethe Tribunal that in its new projects, the State Government was planningto raise only semi-dry crop, was noted. Vis-a-vis Tamil Nadu, the Tribunalrecorded that in the case of the Cauvery Delta system which coveredthe major irrigated area, the Delta varied from 5.3 ft. in 1901 to 4.2 ft in1971 and in the new projects like Cauvery Mettur project, Lower Bhavaniand Mettur Canals, the Delta arrived in 1971 had been in the range of 4ft. to 5.9 ft. The following recommendations of the Cauvery Fact Finding

Committee to effect savings were taken note of as well:-

(a) Restricting the double crop paddy area.

(b) Introduction of short duration variety in place of samba.

(c) Growing crops requiring less water.

230. As from the pleadings of the parties and the data furnishedby them, it appeared to the Tribunal that excessive water was being

Aused for raising of crops by the party States, it, during the course ofhearing, on 12.11.2002, directed them as well as the Union Territory ofPuducherry to file affidavits disclosing the steps already taken to reducethe requirement of water for cultivation and likely to be taken in nearfuture indicating as well the minimum Delta that would be required fordifferent crop varieties in their areas.B

231. Accordingly, to reiterate, Karnataka and Tamil Nadu filedtheir respective affidavits marked as Ext. KAR-518 and Ext. TN–1665in which they furnished details of the parameters normally used in thecomputation of crop water requirement, i.e., crop duration, ET crop,puddling requirements, percolation losses, effective rainfall and systemCefficiency. In the compilations so furnished, the States elaborated theparticulars vis-a-vis their different projects/systems. Whereas TamilNadu recorded its crop water requirement to be 444.15 TMC for anarea of 25.824 lakh acres with separate demand of 68.9 TMC for anarea of 3.445 lakh acres under minor irrigation and 10 TMC on theDcount of reservoir evaporation losses, Karnataka registered claim of381.71 TMC for cropped area of 25.27 lakh acres including therein 71.3TMC for an area of 3.30 lakh acres under minor irrigation. In addition,Karnataka demanded 28.158 TMC for its proposed projects coveringan area of 2.008 lakh acres to which the Tribunal responded by observingthat these proposed projects could be considered subject to the availabilityEof water after meeting the requirements of the existing and ongoingprojects, domestic water, industrial water, environmental needs, etc.

232. Before undertaking the actual computation of the waterrequirement on the basis of the information furnished by the States, theTribunal dealt with the aspect of trans basin diversion of waters of riverFCauvery or its Tributaries. In this regard, it held view that normally, allthe available water in river basin should be utilised to meet the in-basinrequirements, i.e., different beneficial uses like drinking water for humanand animal population, irrigation, hydro-power generation, industrial useand environmental protection, etc. and that after meeting suchGrequirements, if there is still any surplus of water, the same could beconsidered for transfer to other needy basin(s). However having regardto the admitted position that the yield in Cauvery was much less than theclaims by different riparian States, the Tribunal eventually concludedthat no note can be taken of the claims made by the States for transbasin diversion already made or proposed for any purpose. In arriving at

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

this determination, it noted that though in the Helsinki Rules of 1966,reference had been made to basin States, yet it was of the opinion thatdiversion could not be resorted to by any one of the riparian States, atthe cost of other lower riparian States affecting their irrigation, economyand social needs. The view expressed by the Krishna Water DisputesTribunal and the Narmada Water Disputes Tribunal, in substance, is thatdiversion of water to another watershed may be permitted, but normallyin absence of an agreement, the prudent course may be to limit thediversion to the surplus water left after liberally allowing for the pressingneeds of the basin areas. Reference was also made to the observationof the U.S. Supreme Court in State of New Jersey v. State of NewYork (supra) that removal of water to different watershed obviouslymust be allowed at times, unless the States are to be deprived of themost beneficial use on formal grounds. The comment of the ExpertCommittee, 1973 headed by Shri C.C. Patel, as set up by the Governmentof India, to study the report of the CFFC and suggest the scope ofeconomy in the use of Cauvery Water, that since the basin itself wasshort of water, trans-basin transfers were not desirable, was given dueweight as well.

233. The Tribunal, after having determined the areas in theCauvery basin over which the States of Tamil Nadu and Karnatakawere entitled to irrigate and having as well determined the nature ofcrops grown and ought to be grown, keeping in view the criteria applied,i.e., no double crop/perennial crop de hors the 1924 Agreement, nosummer paddy and area under summer paddy existing prior to 1924 tobe replaced by any semi-dry crop, proceeded to make the apportionmentof the Cauvery Waters for irrigation. In undertaking its exercise, theTribunal took note of the details of the various parameters furnished bythe States mainly in respect of two categories of crops, i.e., Paddy andits varieties and semi-dry crops (during Kharif and Rabi season). Theparameters were enumerated thus:-

[2018] 5 S.C.R.

A4.Percolation loss-

5.Effective rainfall Effective rainfall

6.System efficiency System efficiency.

234. The States of Tamil Nadu and Karnataka, as per the ordersBof the Tribunal, also filed their crop calendars. Qua Tamil Nadu, theduration of the three varieties of paddy were shown to be:-

235. The Tribunal, with the replacement of different variety ofseeds of Samba Paddy, observed that the duration of the said crop shouldbe reduced to 135 days or near about that. It was also of the opinionthat “Navarai’ crop of Tamil Nadu grown between the first week ofDecember and last week of March ought to be replaced by any lightDirrigated crop within the irrigation season of June - January. The aspectthat identical economy of water should be practised in Amaravathi andLower Bhavani Project was also stressed upon. The Tribunal recalledthat the principal crops raised in the Cauvery basin in Karnataka wereKharif paddy, kharif semi-dry, i.e., ragi, maize etc; rabi semi-dry, i.e.,Egroundnut, pulses, etc. together with perennial crops like sugarcane,mulberry, garden crops, etc. besides summer crops, i.e., rabi/summerpaddy and rabi summer semi-dry. In view of the scarcity of water, theTribunal excluded summer paddy and summer semi-dry crops andrecorded the view that it would be prudent on the part of Karnataka togo in for paddy crop of medium duration which would give higherFyield. The fact that the State Government had successfully persuadedthe farmers to introduce short duration paddy variety of 120 to 130 dayswhich resulted in saving of about 10% water compared to the mediumduration of the variety was noted. It suggested that the State Governmentof Karnataka should also encourage, as far as possible, replacement ofGthe area of Kharif paddy by Ragi which is Kharif semi-dry crop. Onthe basis of the said analysis, the Tribunal clearly emphasized upon theneed of reduction of crop period to ensure economic and prudent use ofwater and also suggested modification of the crop pattern in chimetherewith.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

236. The Tribunal took into account the claims made by the Statesfor different quantities of water vis-a-vis the corresponding stages requiredfor different crops, namely:-

1. Nursery Preparation

2. Puddling while preparing the main field.

3. Evapo Transpiration

4. Percolation Losses

5. Effective rainfall and

6. System Efficiency

237. It was noted that in deciding the reasonable Delta (waterdepth) required for crop, all these factors had vital role. On theaspect of land preparation, the Tribunal observed that as per Karnataka,its crop water requirement in respect of semi-dry crops was about 100mm for field preparation in respect of semi-dry crops before the cropsare sown and that normally the operation of sowing the seed wasundertaken when the field was wet for easy ploughing and as wetting ofthe soil by rainfall was not certain as it depended upon the natural rainfall,provision for wetting the soil was to be made so that the sowing of thecrop as per the crop calendar would become possible. The Tribunal, inthis regard, adopted the overall Delta for these crops as indicated in theproject reports of Karnataka.

238. With regard to puddling, the Tribunal marked the emphasisof Tamil Nadu on the requirement of water for this factor as most of theareas in the basin including the Delta grow paddy. The Tribunal, however,accepted the data furnished by the party-States in their respectivestatements as those were construed to be reasonable.

239. On the criterion of Evapo-Transpiration – E.T. Crop, theTribunal noted that the scientific computation of this parameter dependedon various factors, namely, (i) temperature along with day and nightweather conditions; (ii) elevation/altitude of the field; (iii) solar radiation;(iv) sunshine hours; (v) wind velocity; (vi) humidity, etc.

240. It gathered from the Government of India guidelines issuedin May, 1984 that the effect of climate on crop water requirements wasgiven by the reference of evapo-transpiration. It referred to the formula

Ato compute the Evapo-Transpiration of particular crop with theobservation that the said factor for particular crop grown in differentregions would differ because of the variation in one or more or severalingredients thereof. Though the Tribunal took note of the dissensionbetween the two States with regard to the applicability of the Food andAgriculture Organization, United Nations and the Government of IndiaBguidelines, yet it eventually accepted the coefficient (a factor applied forcomputing evapo- transpiration) adopted by Tamil Nadu as worked outby the Coimbatore Agriculture University as it yielded lower Delta ascompared to the one worked out on the basis of Government of IndiaGuidelines.

241. As regards the percolation losses, it took note of theobservation of the expert witness, Dr. I.C. Mahapatra, cited by Karnataka,that the same could be considerably reduced by proper puddling of thefield. The Tribunal noted that percolation losses of water depended onthe nature of the soil, climatic condition, etc. It recalled that the soil ofDKarnataka was mostly red soil and at places was sandy in nature incontrast to the Tamil Nadu soil which was sandy loam specially in Delta,formed with the deposit of silt over ages and was not as porous as thatof Karnataka. After taking into account the computations provided byTamil Nadu for the old Delta system and the remaining basin area andhaving regard to the difference in the soil in the two locations, it allowedEpercolation losses per day at 2.5 mm. In respect of Karnataka, havingregard to the fact that paddy was being grown in low lying areas andclose to the river course for last several decades, percolation loss wasfixed at 3 mm per day for that State.242. To compute the effective rainfall, the following recognizedFfactors, namely, (i) topography of land; (ii) soil characteristics of theland proposed to be irrigated; (iii) initial soil moisture content of the land;(iv) ground water characteristics; (v) rate of consumptive use by cropvariety; (vi) intensity, timing and duration of rainfall; (vii) frequency anddistribution of rainfall;(viii) climatic conditions; (ix) variety of crop andGits stage of growth; and (x)water conservation of practices, etc., weretaken note of.

243. After referring to the Irrigation and Drainage paper no.25on “Effective rainfall in irrigated Agriculture” published by the Food andAgriculture Organization of United Nations in 1974 dealing with themeasurement of effective rainfall and evaluation of various methodsH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

with regard thereto, the Tribunal concluded that effective rainfall wouldvary from place to place and hence, its computed value would accordinglychange. In this regard, the Tribunal noted that both the States had furnishedtheir crop water requirement including effective rainfall in respect oftheir projects in consultation with the experts.

244. On the aspect of system efficiency, the Tribunal registeredthat both these States as per the information furnished by them claimedthat they had worked out their crop water requirement as was optimallyrequired for different crops. Referring to the report of the NationalCommission on Agriculture, 1976, the Tribunal observed that in watershort areas, giving fewer than optimum number of waterings to largecrop area at appropriate stages of crop growth would result in greateroverall agricultural production and, therefore, planning projects withoptimum Delta (water depth) would result in higher water demand andmay not be necessary in water paucity areas compared to an irrigationsystem catering for fewer waterings which may cover larger areas andsecure greater overall production. The Tribunal was, thus, of the viewthat the party-States should improve their crop water managementpractices which enfold several parameters involved in achieving thedesired results. It suggested that both the States should improve thesystem efficiency to 65% in the existing projects which was possibleand appropriate. In this regard, it noted the suggestion of the C.C. PatelExpert Committee of the year 1972 that efficiency should be 67% inboth the States.

245. For the State of Tamil Nadu, the Tribunal, by taking thesystem efficiency of 65%, worked out the Delta for 3 varieties of paddycrop in the old Delta area and Lower Coleroon System as hereunder:-

A.Old Delta Area:Delta (Water Depth)

A246. For the new Delta on the same yardstick, the following Deltawas adjudged:-

(i) Kuruvai-4.10 ft.(ii) Samba-3.90 ft.(iii) Thaladi-3.20 ft.

247. Calculation of Delta for other project areas was alsoundertaken by applying system efficiency at 65% and finally, the waterrequirement for the State of Tamil Nadu, by adopting the deltas soCcomputed for main crops and applying the same to the cropped areasworked out on the need basis, was quantified at 390.85 TMC for anarea of 24.71 lakh acres including reservoir losses of 10 TMC. In arrivingat this figure, the Tribunal rejected the contention of Karnataka that thedemand should be limited to 242 TMC as worked out in the CauveryDMettur Project Report of 1921. This was, amongst others, by acceptingthe explanation of Tamil Nadu that the state water requirement wasonly an estimated one based on very high duty factors which proved tobe impractical and arbitrary and further the assessment of crop waterrequirement of each State was necessary to be made on present daystandards. Further, the Tribunal was of the view that whatever be theEclaim of water made by the two States, it has to be worked out in sucha manner that neither the crops starve nor the apportionment of theavailable water becomes an impossible task.248. In the process of assessing the water requirement ofKarnataka, the Tribunal noted that the computations by it had been madeFadopting the Government of India guidelines. While recounting that thenature of soil as well as the crops grown in Karnataka were differentfrom that of Tamil Nadu and that paddy and sugarcane require lot ofwater, the Tribunal suggested improvement of system efficiency to 65%for the existing projects and 70% for the ongoing projects and furtherfixed the percolation losses to 3 mm per day keeping in view the opinionsGof various experts. For the computation of Delta, in respect of kharifpaddy cultivation, the projects within the State of Karnataka in the basinwere divided into two categories, (i) projects falling above Krishna RajaSagara reservoir where rainfall was higher; (ii) those falling below KrishnaRaja Sagara reservoir (including Krishna Raja Sagara Command) whereHthe incidence of rainfall was comparatively less.

249. For the existing projects, the Delta for kharif paddy wasworked out to be 4.6 ft. and for the ongoing projects as 4.25 ft. for theareas falling below Krishna Raja Sagara reservoir including KRScommand. Pertaining to the areas falling above Krishna Raja Sagarathe Delta was worked out to be 4.3 ft. for existing projects and 4 ft. forthe ongoing projects. Similarly, the Delta of other projects as regardssemi-dry crops cultivated both in Kharif as well as in Rabi season wasworked out. For the perennial crop of sugarcane, 7½ ft. of Delta waspermitted. 1 TMC of water for mulberry cultivation was also allowed.On the basis of the above parameters, the water requirement ofKarnataka was computed to be 250.62 TMC for 18.85 lakh acres.Though the assessors had advised otherwise, yet the Tribunal was ofthe view that instead of keeping of water for the purpose of carry overstorage, it would be better to allocate the same amongst the partieskeeping in view the principle of equity for use by the concerned Statesfor any beneficial purpose according to the individual State’s own priority.

P.8 Assessment of water for “Domestic and Industrial Purposes”in Tamil Nadu and Karnataka

250. The Tribunal thereafter proceeded to assess the domesticand industrial water requirements of Karnataka and Tamil Nadu. It noticedthat under the beneficial uses of waters of an inter-state river system,drinking water requirement has been given the first priority not only inour National Water Policy but also by the Courts of different countries.It noted the water supply requirement as recorded in the Indian Standard– “Code of Basic Requirement for Water Supply Drainage and Sanitation”IS.1172-1993 (4[th] revision) presented by Tamil Nadu in its note whereina minimum of 72 to 100 litres per head per day (for short “phpd”) hasbeen considered to be adequate for domestic needs of urban communitiesapart from non-domestic needs as flushing requirements. The said Codedivided communities on the basis of population as also by the type ofwater supply delivery systems catering to their needs while specifyingthe water requirements which is enumerated as hereinbelow:-

1) For communities with population up 40 (Min.) to20,000 and without flushing system. 70 to 100 lts. phpd a) water supply through standpost b) water supply through house service connection.

2) For communities with population 100 to 150 20,000 to 1,00,000 together with full lts. phpd flushing system. 3) For communities with population 150 to 200 lts. phpdabove 1,00,000 together with full Bflushing system.

251. The Tribunal also noted the statistics furnished in the Manualof Water Supply and Treatment (3[rd ]Edition) revised and updated by theMinistry of Urban Development, New Delhi - May 1999 setting out perCcapita water supply levels for designing schemes as under:-

Sl. No.Classification of towns/Recommended citiesmaximum water supply levelsD(lpcd)1. Towns provided with piped water supply but 70 without sewerage system2. Cities provided with piped water supply where 135 sewerage system is existing/contemplatedE3. Metropolitan and Mega cities provided with 150 piped water supply where sewerage system is existing/contemplated.

252. Being of the view that detailed information regarding thepopulation of various towns and cities, etc. in the Cauvery basin and alsoFthe type of water supply delivery systems were not available in exactness,it assessed the drinking water requirement of urban population ashereunder:

(i) 25% of urban population at 135 lts. phpd

G(ii) Remaining 75% of urban population at 100 lts. phpd

253. Qua the drinking water supply needs for rural areas, itreferred to the norms adopted by the Government of India in NationalDrinking Water Mission publication Chapter–I at 40 lts. phpd with abreakup as follows:-

hpd

nded water vels

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE1039OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Purpose Quantity(lt. phpd)Drinking3 Cooking5 Bathing 15 Washing utensils & house7Ablution10

In addition, 30 lts. phpd for animals in hot and cold desert/eco-system in the areas as mentioned therein was recommended. TheTribunal, in the absence of livestock figures of the party-States and theUnion Territory of Puducherry, premised that the animal population wasequal to the rural human population and accorded 30 lts. phpd for animalsand 40 lts. phpd for human beings aggregating 70 lts. phpd in all.

254. The Tribunal was of the view that as drinking waterrequirement would be spread over the entire area of the basin, it wouldbe reasonable to assess that 50% of the drinking water requirementwould be met from ground water sources as it is generally seen thatwells and tube-wells in urban and rural areas cater substantially to thesaid need. It acknowledged that though the States were asked to projecttheir population for the period from 2000 to 2025 for working out thedrinking water requirement, it considered it to be apt to make suchassessment taking 2011 to be the yardstick as it construed it to besufficient. It also noticed that out of 100 units of water initially lifted fordomestic use, only about 20 units are consumed and the remaining 80units returned into the river basin. To this effect, the Tribunal referred tothe CFFC report as well as the report of the Godavari Water DisputesTribunal which reproduced the percentage of actual utilization qua variousheads of uses as hereunder:-

Use M easurement (i) Irrigation use 100 per cent of the quantity diverted or lifted from the river or any of the tributaries or from any reservoir, stora ge or canal and 100 per cent of evaporation losses in these storages.

(ii) Power use 100 per cent of evaporation losses in the storage. iii) Domestic and 20 per cent of the quantity of water diverted municipal water or lifted from the river or any of its Bsupply within the tributaries or from any reservoir, storage or basin canal (iv) Industrial use 2.5 per cent of the quantity of water diverted within the basin. or lifted from the river or any of its tributaries or from any reservoir, storage or Ccanal. (v) All uses outside 100 per cent of the quantity diverted or lifted the basin. from the river or any of its tributaries or from any reservoir, storage or canal.255. The fact that the above observations were also quoted byDthe Krishna Water Disputes Tribunal in its report was noted.

256. Vis-a-vis the requirement of the city of Bengaluru, theTribunal concluded that from the information furnished by Karnataka,64% of the city area lay outside the basin and only 36% thereof fellwithin it. It, therefore, proceeded on the basis that 1/3[rd] of the city areaEis located within the basin and 2/3[rd] beyond it. After referring to thematerials furnished by Karnataka indicating the existing and ongoingdrinking water schemes and its demand on that count for Bengaluru cityas 30 TMC in projection of 20 to 25 years, it estimated the same to be14.52 TMC on the basis of its existing requirements as indicated by it asFin 1990. The Tribunal was of the view that as 2/3[rd] of the Bengaluru citylay outside the basin, its drinking water requirement for that area onlywhich lay within the Cauvery basin along with the remaining basin areaand for drinking water requirements for urban and rural population,worked out by projecting the population of the basin for the year 2011,needed to be computed. It recalled that 25% of the urban population hadGbeen allowed 135 lts. phpd and 75% thereof 100 lts. phpd keeping inview the different categories of cities and towns falling in the Cauverybasin. It assigned 150 lts. phpd to Bengaluru city area falling within thebasin and worked out the water requirement for the urban population tobe 8.70 TMC. Vis-a-vis the rural population at the rate of 70 lts. phpd,

erted

or erted

lifted r from

the water requirement was quantified at 8.52 TMC, thus making thetotal drinking water requirement to be 17.72 TMC. By assuming that50% of the drinking water requirement would be met from ground water,it was estimated that the component of river supply including transitlosses would be 8.75 TMC. The consumptive use, i.e., 20% of the totalfor human population including livestock, was, thus calculated to be 1.75TMC.

257. By adopting the same norms, by and large, the domesticwater requirement for the State of Tamil Nadu was computed. The totaldrinking water requirement for the projected population of 2011 wasfixed at 21.98 TMC out of which 50% was supposed to be met by theground water sources and 50% from surface water which came to 10.99TMC. Judged by the consumptive use at the rate of 20%, 2.20 TMCwas allocated to Tamil Nadu from surface water.

258. The Tribunal vis-a-vis the industrial water requirement ofTamil Nadu recorded its demand of 7.43 TMC during 2001 and 13.60TMC in 2025. Having regard to the fact that industrial developmentdepended on several factors including energy, infrastructure and massivefinancial investments, it was of the view that the projection made by theState was on the higher side. The Tribunal held the opinion that as theindustrial water requirement for the year 2011 was in contemplation,100% increase on that count on the existing requirement in 1990 wouldbe reasonable and, on that basis, worked out the same as 9.9 TMC outof which the consumptive use was assessed at 2.5%. To it was addedthe water requirement of the State for existing thermal power station atMettur as 54.339 cusecs with consumptive use of 9.057 cusecs whichequals to .28 TMC. It worked out the total consumptive use of water forindustrial purposes at .53 TMC (.25 + .28).

259. As far as Karnataka is concerned, the Tribunal noted itsexisting industrial requirement with 3.20 TMC with the projected demandas 5.71 TMC and 8.02 TMC for 2000 and 2025 giving growth ratio of1.4 times. Noticing that the industrial development over the years hadgathered good momentum in the State and as the industrial waterrequirement for the year 2011 was applied as the benchmark, the Tribunalawarded 6.40 TMC (3.20 x 2) towards this item of requirement. It wasnoted that the State had indicated that at present about 2.58 TMC wouldbe met from ground water sources signifying that the total industrial

Awater requirement from the Cauvery basin would be to the tune of 3.82TMC (6.40-2.58) and by allowing consumptive utilisation at the rate of2.5% of the total requirement, the consumptive water requirement wouldturn out to be .10 TMC.

260. The domestic and industrial water requirements of the StatesBof Karnataka and Tamil Nadu were, thus, quantified at 1.85 TMC and2.73 TMC respectively.

P.9 Assessment of water for “Environment Protection andInevitable Escapages into Sea” in Tamil Nadu and Karnataka

261. On the aspect of water requirement for EnvironmentalCProtection and Inevitable Escapages into sea, the Tribunal underlinedthe significance thereof by observing that the balance and purity of theenvironmental and ecological regime gets disturbed on account ofinjudicious use of available resources by human beings which is furtheraggravated by the explosion of population and distorted life style orientedDtowards consumerism. It took note of the fact that river water pollutionon account of industrial development, deforestation leading to siltation ofreservoirs, excessive use of irrigation water causing water logging andsalinity, etc. were areas of concern so much so that as result ofinsensible application of irrigation waters, fertile lands have sufferedfrom water logging and salinity. It reminded itself of its role of apportioningEavailable supplies for various beneficial uses of the competing Statesand while doing so also to take note of the environmental requirementsand to reserve some quantity of water for maintaining the river regimein its various reaches right upto the mouth of the river Cauvery. It wasof the view that during the crop seasons, regulated releases fromFreservoirs would flow not only into the canal system but also in the riverlower down which would normally help in maintaining the river regimeand its health but during the non-irrigation season which coincides withthe non-monsoon summer months from February to May, consciousefforts were required to be made to ensure that there are minimumflows running in the system, particularly in the downstream. It referredGto the testimony of Dr. B.B. Sundaresan, former Director, NationalEnvironmental Engineering Research Institute, that lack of adequate riverflows is an overwhelming factor contributing to degradation of mangrovesin Cauvery estuary as mangroves thrive only at the fresh water – seawater interface. The Tribunal noted the stand of Tamil Nadu andHKarnataka in this regard and recorded that right from 1924 onwards,

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

minimum flow of 1900 cusecs was being led into the river during non-irrigation months which was sufficient to meet the minimum waterrequirement for environmental purposes. It, thus, assigned 10 TMC tobe reserved from the common pool to meet the needs of environmentalaspects from 1[st] February to 31[st] May to be maintained from Metturreservoir downward in the river Cauvery every year.

262. On account of inevitable escapages into the sea, the Tribunalrecorded that rainfall during the North-East monsoon season comes inthe form of cyclonic storms with heavy downpours for some days withinterspersed dry spell periods and as such, heavy surface flows duringthe months of October, November and December in the Delta regionresult in outflow into the sea as the flood flows. The Tribunal, on anassessment of the materials on record and taking note of the opinions ofdifferent experts, concluded that only those escapages which flow downinto the sea as surplus at Lower Coleroon Anicut during the normal orbelow normal years of precipitation could be counted as inevitableescapages and quantified the volume to that effect as 4 TMC to bededucted from the normal yield of 740 TMC available for apportionment.

P.10 Water allocation for the State of Kerala and Union Territoryof Pondicherry (presently named as “Puducherry”)

263. The Tribunal, at this juncture, turned to determine theallocations for Kerala and the Union Territory of Puducherry.

264. In apportioning the share of the State of Kerala, the Tribunaladverted to the report of the Cauvery Fact Finding Committee andrecorded that so far as the first and second crops are concerned, therequirements of irrigation were nominal. From the chart appended to thereport showing the weekly evapo-transpiration and rainfall, it construedthat the rainfall was so evenly distributed over the months of May toNovember and in excess of evapo-transpiration that only occasionalassistance by artificial irrigation was required in the event of some failuresin small periods. It noticed the stand of Kerala in its statement of casethat agriculture was the basic occupation of the people in Kabini, Bhavaniand Pambar basins with the main crop in the low elevation being paddy,and plantation crops being grown in the middle and higher elevations.Kerala had claimed that in the absence of assured water supply fromirrigation projects, excepting few minor irrigation works serving limitedayacut, the agricultural crops in the Cauvery basin therein were dependent

Aon the seasonal rainfall. Kerala had pleaded that after Malabar cameover to it, it had submitted several schemes to the Government of Indiafor approval but except one project, viz., Karapuzha in the Cauverybasin, no other scheme was approved because of the pending dispute onsharing of water. According to Kerala, it was for this historical fact thatdespite the availability and potential to use Cauvery water, the MalabarBarea could not take up irrigation projects. The demand of Kerala in itsstatement of case was 92.9 TMC under different heads covering Kabini,Bhavani and Pambar sub-basins. The Tribunal noticed that out of thisvolume of water, 35 TMC was demanded by Kerala for trans-basindiversion to generate hydro-power. As matter of fact, it claimed thatCits contribution to the Cauvery basin was about 20% of the total yield of740 TMC and, thus, considering its peculiar needs as an over populatedand industrially under developed State, its share of water works out as99.8 TMC including non-consumptive use of Pambar HE Scheme – 5.6TMC, Siruvani Water Supply Scheme for Coimbatore – 1.3 TMC inaddition to their claim of 92.9 TMC. The demand of the State that it wasDentitled to the use of Cauvery water for irrigation for paddy crop whereverpossible and plantation crops in the hill slopes in addition to the use ofsuch water for the generation of hydro-electric power was minuted.The Tribunal took note of the stand of Tamil Nadu to limit the claim ofKerala on the basis of an Agreement of 1969 between the two States,Ebut negated the same and decided that its claim for its share of waterwas to be considered on merit. While adjudging the demand of Kerala,the Tribunal took note of the stand of Karnataka that in view of thesufficient rain during South-West and North-East monsoons, the firsttwo paddy crops, namely, Virippu and Mundakan do not need anyirrigation support; summer paddy crop should not be allowed; since 1975Fthe overall area under paddy cultivation in the State had been decliningand as whole, it had sufficient hydro-power potential in large numberand as such, transbasin diversion should not be allowed. The demurralof Karnataka based on the project reports of Kerala that it proposed tohave three crops in all the projects, was also accounted for. The Tribunal,Gin this context, reflected on the efforts made by Kerala to push its projectsunsuccessfully over the years and its emphasis for the need to developthe hilly region of Wyned and Attappaty which were under developed.Before examining the tenability of the demand of Kerala, the Tribunalfirst set out the broad heads thereof as under:-

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

B2. Medium irrigation schemes for covering 38.8 areas within the basin.3. Minor irrigation works (existing, ongoing & 6.1 proposed). 4. Domestic water supply (ultimate 5.5 Crequirement). 5. Industrial uses (ultimate requirement). 7.5 6. Non-consumptive use for Pambar Hydro-5.6 electric Scheme within the basin. D7. Committed utilisation for Siruvani drinking 1.3 water supply for the benefit of Tamil Nadu.Total 99.8

265. Vis-a-vis the first item, the Tribunal held that the water ofinter-State river was meant for use by all the riparian States accordingto the reasonable needs and necessity of each State within the basin.While underlining that irrigation had always been given higher preferenceover generation of hydroelectricity unless water was surplus, itenumerated the water allocation priorities as prescribed by the NationalWater Policy of 2002 as hereinbelow:-

•Drinking water

•Irrigation

•Hydro-power

•Ecology

•Argo-industries and non-agricultural industries

•Navigation and other use.

266. Rejecting the plea on behalf of Kerala in support of transbasindiversion based on the necessity and need of the whole State, the Tribunal

Aheld that if it is accepted that while determining the equitable share of aparticular riparian State, even the shortage of water in the neighbouringbasin which is outside the basin in question is to be considered, it wouldlead to an anomalous situation. In its view, though in the Helsinki Rulesof 1966, there is reference of basin states, yet the process of diversioncould not be executed by one of the riparian States at the cost of otherBlower riparian States affecting their irrigation, economy and social needs.The observation of the Krishna Water Disputes Tribunal and the NarmadaWater Disputes Tribunal in substance to the effect that in the absence ofany agreement, the prudent course may be to limit the diversion to thesurplus waters left after liberally allowing for the pressing needs of basinCareas, was reiterated. The following observations of the U.S. SupremeCourt in State of New Jersey v. State of New York (supra) were alsorecorded:-

“The removal of water to different watershed obviously mustbe allowed at times unless States are to be deprived of the mostDbeneficial use on formal grounds.

Diversion of water from one river basin to another is viewedwith distrust and resisted by the basin population.”

267. The Tribunal also referred to the observation of the ExpertCommittee headed by Shri C.C. Patel, the then Additional Secretary,EMinistry of Irrigation and Power, against trans-basin diversions in waterdeficit basin. It, therefore, concluded that because of shortage of water,no note could be taken of claims made by the States for apportionmentof water in respect of any trans-basin diversion already made or proposedto be made for any purpose. The Tribunal, thus, declined to allocatewater for the projects involving transbasin diversion of waters.F

268. Qua the demand for irrigation, domestic and industrial wateruse, the Tribunal, on scrutiny of the project reports as furnished in thecommon format, catalogued the following aspects:-

“(i) Out of the irrigation schemes projected, only one schemei.e. Karapuzha project had been approved by the GovernmentGof India.

(ii) While the State had been emphasizing on spice and plantationcrops, while placing demand, it had only submitted its requirementmainly for paddy and vegetable crop, besides indicating demandfor domestic and industrial uses along with hydropower projectsHinvolving interbasin transfer of water.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(iii) As regards culturable command area (CCA) and ayacutunder individual projects, the extent of proposed ayacut was muchless than CCA because of the physical nature of the area, whichwas undulating in character.

(iv) Main crop in the low elevation areas was paddy, whereas inthe middle and higher elevations, it was plantation crops for whichreasonable needs were to be assessed, so that the irrigated areacould be made equal to the CCA for the State has proposed twopaddy crops and one vegetable crop for the Kabini sub-basin.While the first crop “Virippu” was raised during May toSeptember, water requirement whereof was met from South-West monsoon, the second crop “Mundakan” was raised fromend of September to end of January with the support of North-East monsoon. The first was the rain fed crop and the secondprincipally, an irrigated crop. The third crop “Puncha” grownfrom January end to early May was summer crop, whichhowever could not be allowed because of non-availability ofrainfall support.

(v) Though the State had proposed three paddy crops in theirAttappady Project in Bhavani sub-basin noticing that this basinused to receive rainfall during South-West monsoon, which wasweaker, only one paddy crop was to be allowed during North-East monsoon, whereas the proposed paddy crop during South-West monsoon was recommended to be replaced by any semidry crop. For Pambar sub-basin as well, though the State hadproposed two paddy crops, one paddy crop and one semi drycrop was suggested.

(vi) No lift irrigation for raising paddy cultivation was allowable.

(vii) Demand for domestic and industrial water use wasexcessive. The excessive demand for industrial use was restrictedto 33% of the quantity of the existing actual utilization for projectdevelopment till 2011.

(viii) The Tribunal having regard to its above responses andbearing in mind that the State had substantial tribal population inCauvery basin area worked out the project-wise allocations basedon socio-economic needs, agro-climatic conditions and availabilityof land for cultivation.”

A269. The analysis that followed reveals that the Tribunal didexamine the demand vis-a-vis the different projects in the Kabini, Bhavaniand Pambar basins in the context of their individual features andcorresponding crop water requirement. While doing so, the Tribunal also,inter alia, examined the viability of the projects and excluded thosewhich were not viable. In assessing the claims made, the Tribunal wasBparticularly mindful of the crop pattern, annual intensity of irrigation,delta requirements, etc. with specific reference to rainfall support. Inaddition, demand towards minor irrigation schemes/projects in theaforenamed basins were accounted for and eventually, the irrigationwater requirement of Cauvery basin, Bhavani basin and Pambar basinCwas assessed to be as hereunder:

Kabini basin – 19.43 TMC

Bhavani basin – 5.52 TMC

Pambar basin – 2.95 TMC

270. Noticeably, the Tribunal, while assessing the crop waterrequirement for the above three sub-basins, allowed allocations for“Virippu” and “Mundakan” paddy crops for Kabini sub-basin; kharifsemi-dry and miscellaneous, “Mundakan” and perennial crop for Bhavanisub-basin and kharif semi-dry and miscellaneous and “Mundakan” forPambar sub-basin.E

271. While working out the domestic and industrial waterrequirement, the Tribunal considered the population projection for 2011and adopted the ratio of urban and rural population at the ratio of 30:70.Against the drinking water requirement at flat rate of 120 lts. phpd forthe entire population, the Tribunal thought it reasonable to bifurcate theFdemand between the rural and urban areas and quantified it to be 120lts. phpd for urban population and 70 lts. phpd for the rural population(human-being 40 lts. phpd + cattle 30 lts. phpd), thereby adjudging thedrinking water requirement on the above norms for Kabini, Bhavani andPambar sub-basins together at 1.53 TMC. As the actual consumptiveGuse out of the above would be limited to only 20% and the remaining80% would gradually flow back to the river system over period oftime, the actual allocated share on this head was, thus, assessed to be.31 TMC for the three sub-basins.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

272. Dealing with the industrial water requirement, the Tribunaltook into account the existing industrial water use for different types ofindustries in Kabini basin estimated at .50 TMC which was expected toincrease by another 33% by the year 2011 thus becoming .69 TMC.Working on the same lines, the industrial water need for Bhavani sub-basin and Pambar sub-basin was assessed at .21 TMC and .26 TMCrespectively making the total tally of 1.16 TMC. However, as theconsumptive use for industrial purposes was limited to 2.5% of the volume,the Tribunal adjudged the share on this count to be .04 TMC as theremaining bulk would return to the river system.

273. The Tribunal, on the basis of the population ratio inter se theStates, awarded Kerala 1.51 TMC out of the savings of 45.08 TMC soas to enable it to use the same keeping in view its own priorities in publicinterest. Thus, the total water requirement of Kerala, taking into accountall heads of demand, was quantified at 29.76 TMC rounded up to 30TMC. In parting, the Tribunal clarified that the allocation was based onthe needs established and accepted and did not signify the sanction ofany project by it, as the clearance thereof under the law was to begranted by the State Government. Having regard to the historical factsthat Kerala would take some time to utilize its full allocated share somuch so that some unutilized water from its share would be flowing inKabini, Bhavani and Amaravathi reservoirs and recalling that the Tribunalhad not taken note of the claim of Tamil Nadu of its irrigated area ofsecond/double crop totaling 2,80,800 acres, it was provided that till suchtime Kerala would be in position to utilize its allocated share of water,the unutilized water from its share be permitted to be used by TamilNadu. While holding so, the Tribunal observed that this temporaryarrangement of use by Tamil Nadu of the unutilized water from theshare of Kerala, however, would not confer any right on it.

274. Adverting to the claim of the Union Territory of Puducherryfor the Karaikal region, the Tribunal recorded that the economy of thatregion was predominantly based on agriculture and that due to its closeproximity to the sea, the ground water was generally brackish andunsuitable for drinking and irrigation purposes. The claim of the UnionTerritory for its water requirement vis-a-vis the crop grown as extractedhereinbelow was noticed:-

[2018] 5 S.C.R.

275. Thus, the total area summed up to 42,533 acres and the totalwater requirement was estimated at 9.355 TMC including 115 mcft fordrinking water. The Tribunal marked that there was, in fact, no denial ofthe irrigated area claimed by the party-States, though Karnataka, in itsrejoinder, did not admit its crop pattern as projected and the corresponding

Dwater requirement. The fact that the irrigated area of 43000 acres hadalso been endorsed by the Cauvery Fact Finding Committee was dulynoted. Further, the aspect that the Union Territory of Puducherry, due toits own compulsions, did not have any scope for extension of the saidarea also did not miss the attention of the Tribunal and, thus, on totality

of the above considerations, its claim for second crop was allowed inEparticular keeping in view the geographical and climatic conditions andthe soil features of the territory.

276. Noticeably, the State of Tamil Nadu, while arguing its demandof water as well as the area under irrigation, had indicated its stand inrespect of the Union Territory of Puducherry and provided the followingFparticulars to demonstrate the overall need of the Union Territory:-

S. No.Sector PondicherryArea in Water lakh acresrequired in TMC(1)(2)(3)(4)A Domestic and livestock need 0.356B Environmental/Ecological 0.000Needs

277. From this, the Tribunal construed that not only Tamil Naduadmitted that the gross irrigated area in Puducherry was 43000 acres,but also measured its total water requirement to be 7.266 TMC.

278. In respect of the crop water requirement of Puducherry inCparticular, the Tribunal observed that the extent of area under Kuruvai,Samba and Thaladi was 15,388, 11,757 and 15,388 acres respectivelyout of which the first crop (Kuruvai and Samba) covered 27,145 acresand the second crop (Thaladi) was raised over 15,388 acres. The Tribunalalso mentioned that the Karaikal region of the Union Territory ofPuducherry was situated at the tail end of the Tamil Nadu Delta systemDand for all practical purposes, could be taken to be the natural extensionof the Cauvery Delta system of Tamil Nadu and, therefore, the croppingpattern as well as the water requirement for the crops did also broadlymatch. It was, however, indicated that the Karaikal region was in theclose proximity of the sea for which the effect of sea water on theEcultivable area was an aspect which needed special consideration. Thiswas, as the Tribunal underlined, to ensure that the brackish waterremained well below the crop root zone for which liberal provision forirrigation water was warranted. Though it noted that the North-Eastmonsoon helps in leaching the salt deposited over the land as well as inthe sub-soil, yet having regard to the above factors, volume of 6.35FTMC by way of crop water requirement was allowed.

279. For domestic and industrial water requirement of the UnionTerritory, the Tribunal noted that the total population of its Karaikal region,as projected for 2011, was to be applied. It construed the ratio of urbanto rural population to be 35:65 and by applying the yardstick of 120 lpcdagainst urban domestic water supply requirement and 70 lpcd for therural population including livestock, it worked out the total domestic waterrequirement to be .225 TMC. Though 80% of the domestic water supplywas generally expected to return back to the river system, yet in thecase of Karaikal region, this norm was not applied as the water would

Anot take that course but would flow into the brackish sub-soil or into thesea. The Tribunal, thus, allowed the full quantity of .225 TMC for domesticwater requirement.

280. In respect of its industrial water requirement, the UnionTerritory of Puducherry, in its common format, indicated its demand toBbe .034 TMC. The Tribunal was of the view that by 2011, this demandwould increase by about 33% to become .045 TMC. As on the analogyof reasonings qua domestic water requirement, the industrial water takenfor use from the river system will not return to it and, hence, the fullquantity, i.e., .045 TMC was accepted. Thus, the total water requirementof the Union Territory of Puducherry towards irrigation, domestic waterCsupply and industrial use was assessed at 6.62 TMC.

281. Added to this, out of the balance water of 45.08 TMC onsavings, as per its population in the year 1991, the bench mark used forthe other States, its share was worked out to be .22 TMC. The totalallocation of water for Puducherry on all these counts, thus, totalled toD6.84 TMC which was rounded upto 7 TMC. It was mentioned that thisquota allocated to Karaikal was required to be delivered at the sevenlocations at the inter-state crossing points (between Tamil Nadu andKaraikal) of 7 rivers, namely, Nandalar, Nattar, Vanjiar, Noolar, Arasalar,Thirumalairajanar and Pravadayanar. With regard to the monthly deliveryEof supplies, it was noted that Tamil Nadu and Union Territory ofPuducherry had an agreement which had been working satisfactorilyand, thus, it was ordered that the same would continue. It was indicatedthat in case of any disagreement, the matter could be resolved by theCauvery Management Board.FP.11 Final water allocation amongst competing States

282. Having dealt with the allocations for the individual States asabove, the final calculations were set out in tabular form as hereinbelow:-

States Total KeralaKarnata kaTamil UT of Nadu Poncidherryi) Area 1.93 18.85 24.71 0.43 45.92 ii)Irrigation 27.90250.62390.856.35675.72requirement

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE1053OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Aiii) Domestic 0.351.852.730.275.20and Industrial water requirement projected for 2011 Biv) Water - - - - 10.00 requirement for environmental protection v) Inevitable - -gv - - 4.00 Cescapages into sea vi) Share in 1.51 17.6425.71 0.22 45.08 balance water Total 29.76 270.11 419.29 6.84 740.00 DSay 30.00 270.00 419.00 7.00 726+14 =740

283. Simply put, the final allocated shares of the competing Statestogether with the provisions for environmental protection and inevitableescapages into sea, as determined by the Tribunal, can be reflected thus:-

1. Kerala30 TMC

2. Karnataka270

3. Tamil Nadu419

4. Union Territory of Pondicherry7

5. Environmental protection10

6. Inevitable escapages into sea4

__________

740 TMC

284. Significantly, in computing the balance quantity of 45.08 TMCwhich the Tribunal distributed on the basis of the respective populationfigure, the Tribunal attributed this quantum to the proposed carry overstorage of 10 TMC, each for the States of Karnataka and Tamil Nadu,as recommended by the Assessors as well as volume of 25.08 TMCthat was available in view of the limitations prescribed in allotment.

AAccording to the Tribunal, on consideration of different aspects, it wasdecided to keep 20 TMC (10 TMC x 2) as advised by the Assessors ascarry over storage, to allocate the same together with the other 25.08TMC available to the States on the principle of equity, leaving them atliberty to utilize the same as per their own priority.

BP.12 Monthly schedule for delivery of water at inter-State contactpoints

285. The Tribunal next dwelt upon the monthly schedule of flowsat the inter-State contact point between Karnataka and Tamil Nadu toensure timely supplies for successfully raising crops in different cropCseasons. It noticed that for the fields in which paddy was grown by theState of Tamil Nadu, the nurseries were put in the field between middleof June to middle of July followed by transplantation during last week ofJuly onwards. Having regard to the fact that in Tamil Nadu, the firstcrop of “Kuruvai” was harvested in September followed by the secondcrop “Thaladi” to be harvested in January-February and that the mainDcrop “Samba” is transplanted in the month of August- September andharvested in December, the Tribunal prepared schedule of the monthlyreleases from mid-June to end of January spanning over the agriculturalseason so that the interests of both the states of Tamil Nadu andKarnataka were taken care of. In drawing up the monthly schedule ofErelease of water, the Tribunal kept in mind that in normal years, suchrelease would not pose any difficulty to the State of Karnataka and atthe same time would meet the requirement of Tamil Nadu. The inter-state contact points were enumerated thus:-

i)B etween K erala and Karnataka:Kabini reservo ir siteii) etween Kerala nd T am il : FN adu (a) For Bhavani sub -basin:Chavadiyoor G.D. siteIt is reported tha t Chavadiyoor gauge site was being operat ed y the State of Kerala which could be revived for int er-State Gobservations. (b) For Pamb ar sub -basin:Amaravathi reservoir siteiii) etween K arnataka and Tam il : Billigundulu G.D. site/any N adu other site on comm on bo rd er iv) etween Tam il N adu and : Seven ont act points” HPond icherry

sitee/any mm on

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

286. It was mentioned that the identified inter-state contact pointbetween Karnataka and Tamil Nadu was at Billigundulu gauge wherethe discharge site was maintained by the Central Water Commission, anindependent organization of the Central Government having due expertisein the river gauging techniques. The Tribunal was of the opinion that thegauge and discharge observation stations where direct observations canbe made would be better location than reservoir site where themeasurements can be taken only in an indirect way. The RegulatoryAuthority was, however, left at its discretion, if needed, to require theCentral Water Commission, in consultation with the State Governments,to establish new gauge and discharge station on the common border.The unutilized water allocated to the State of Kerala, which would beflowing to the lower States, namely, Karnataka and Tamil Nadu and theexisting reservoirs of Kabini, Bhavani and Amaravathi from which thedistribution was ordered was to be monitored by the CauveryManagement Board. The fact that the annual allocation of 7 TMC forthe Union Territory of Puducherry would be required to be delivered byTamil Nadu over period of one year at 7 different contact points, as inthe past, was indicated. The calculations of the flow required to bedelivered at the inter-state site were summed up as hereunder:-T MC“1 ) T he to tal yield of th basi n at 5 0% 74 0 ep end ability 2 ) Y ield at M ettur res erv oir. 50 8 (Ref: T N DC V ol. X V , p age 8 7 an T N Statem en t N o.5 7, item 1 dat ed 1 0.2 .20 05 ) 3 ) Y ield enera ted in T amil N adu area abo ve 25 M ettur res erv oir (Ref: T N Statement N o.5 7, item 4 an T N Statem en t 86 , item 1 ) 4 )(a) Y ield avai la ble belo w M ettur (74 0– 50 8)23 2(Ref: T N N ote 46 , An nex ure-3 , p age 54 ; T N Statement 8 3, item 1)(b) ed ucti ng foll ow ing us es :- i) Al locatio n to K era la in Bh avan i s ub -b asin - 6 T M ii)A llocatio n to K erala in Pam bar sub -basin - 3 T M iii)A llocatio n to UT of 20 Po nd icherry - 7 T M iv )Inev itable escapag es in to sea - 4 T M _ _ __ __ __ 2 0 T MC

[2018] 5 S.C.R.

(c) Balance available for use in Tamil Nadu 212 (232–20) 5) Tota l of water available for use in Tamil 237” Nadu (212+25)

287. Deducing therefrom and having regard to the allocated shareBof 419 TMC, the Tribunal ordered that the balance 182 TMC (419-237)+ 10 TMC for environmental protection, i.e., 192 TMC was to be deliveredby the State of Karnataka at the inter-State border. In this regard, thethree components contributing to the annual quantum of water to bedelivered by the State of Karnataka at the inter-State contact point wereidentified as herein below:C

“i) Flows coming in the river Cauvery from the uncontrolledcatchment of Kabini sub-basin downstream of Kabini reservoir,the catchment of main stream of Cauvery river belowKrishnarajasagara, uncontrolled flows from Shimsha, Arkavathyand Suvernavathy sub-basins and various other small streams.

ii)Regulated releases from Kabini reservoir; and

iii) Regulated releases from Krishnarajasagara reservoir.”

288. It was clarified as well that the delivery of 192 TMC ofwater at the inter-state contact point was to be maintained in normal

Eyear and that if there was any deficiency in the quantum of inflows, itwould be open to the Cauvery Management Board/Regulatory Authorityto suitably adjust the flows. The monthly schedule of deliveries finallyprepared in consultation with and on the basis of the advice of theassessors at Billingundulu was designed thus:-

289. While clarifying that Kabini’s flows of the unutilized waterout of the Kerala’s allocated share, from Kerala to Tamil Nadu wouldbe in addition to the flow of 192 TMC as per the monthly schedule tillKerala develops its own potential to use the same, the CauveryManagement Board/Regulatory Authority was also required to set up itsmechanism and further devise its method to determine the quantum ofunutilized water to be received from Kerala by Tamil Nadu throughKabini and its tributaries and ensure the delivery thereof in Tamil Naduat the common border. The Regulatory Authority was also required tomonitor flows from Krishna Raja Sagara reservoir as also from Kabiniand other tributaries meeting Kabini below Krishna Raja Sagara uptoBilligundulu site. It was again clarified that the monthly schedule ofdeliveries was on the basis of the flow in normal year giving totalannual yield of 740 TMC at 50% dependability which was theoreticalcomputation based on the crop water requirement of different projectsand the computed withdrawal therefor along with the data of inflowsinto the various reservoirs as furnished by the party-States in their commonformats. However, the Tribunal was not unmindful of the fact that rainfallduring any monsoon season was likely to vary in space and time andalso in intensity and duration which would have impact upon the patternof flows in different sub-basins and which may not tally with the flowsconsidered for working out the above schedule. In this premise, theTribunal suggested an entity, namely, the Cauvery Management Board/Regulatory Authority to monitor, with the help of the Cauvery RegulationCommittee and the concerned State Authorities, the available storageposition in the Cauvery basin along with the trend of rainfall and makean assessment about the likely inflows which may be available fordistribution amongst the party-States within the overall schedule of waterdeliveries as suggested. It was also made clear that in case the yieldwas less in distress year, the allocated shares would be proportionatelyreduced amongst the States involved by the Regulatory Authority. Havingregard to the fact that the irrigation season starts from 1[st] of June andthe normal date of onset of South-West monsoon in Kerala is of thesame date so much so that any delay in the advent of the said monsoonwould affect the inflows and consequently dislocate the schedule ofreleases from Krishna Raja Sagara and Kabini reservoirs, the Tribunalfelt it to be advisable that at the end of May each year, as much storageas was possible during good year should be consciously conserved asthat would help in adhering to the schedule of monthly deliveries. The

ATribunal, however, authorized the Cauvery Management Board/Regulatory Authority to relax the schedule of deliveries and get thereservoirs operated in an integrated manner through the States to minimizeany harsh effect of bad monsoon year in the event of two consecutivedistress years. The Cauvery Management Board/Regulatory Authoritywas also required to monitor the entire spectrum of monthly availabilityBof storages and rainfall pattern vis-a-vis the schedule of monthly flowsto be delivered at Billigundulu/inter-State contact point for period offive years and to effect the necessary adjustments in the monthly schedulein consultation with the party-States and with the help of the CentralWater Commission without, however, changing the annual allocationCawarded to the parties. In suggesting these measures, the Tribunal wasconscious that there was no element of human control on the happeningsin nature and that only an attempt was to be made to ensure beneficialuse of the available quantum of flows in any year and to distribute thesame for the benefit of the basin as whole by integrating the releasesfrom different storage reservoirs. caveat was also sounded to theDupper riparian State to desist from any action so as to affect the scheduleddeliveries of water to the lower riparian States.

Q. Mechanism (Cauvery Management Board) for implementationof Tribunal’s decisions

E290. The Tribunal also did devise the machinery forimplementation of its final decisions/orders and in doing so, took note ofSection 6A introduced in the 1956 Act by Act 45 of 1980 with effectfrom 27.08.1980 empowering the Central Government to frame schemes,if any, in respect of such implementation. It also noticed the amendmentto Section 6 of the Act whereby in terms of Section 6(2), the decision ofFthe Tribunal after its publication in the Official Gazette was to have thesame force as an order or decree of the Supreme Court. In this statutorybackground, the Tribunal was of the view that any direction to frame ascheme for the implementation of its decision would result in an anomaloussituation. However, in its view, as the Inter-State Water Disputes(Amendment) Act, 1980 did not provide for details with regard the toGconstitution of the machinery and its functions, it had the implied powerto make recommendations in that regard for implementing its decision.It, thus, recommended that the Cauvery Management Board be constitutedon the lines of Bhakra Beas Management Board by the CentralGovernment. It underlined that unless an appropriate mechanism wasHset up, the prospect of implementation of its decision would not be secured.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

It further recommended that as its award involved regulation of suppliesfrom various reservoirs and other important nodal points/diversionstructures, it was imperative that the mechanism, Cauvery ManagementBoard, be entrusted with the function of supervision of the operation ofreservoirs and the regulation of water releases therefrom with theassistance of the Cauvery Water Regulation Committee (to be constitutedby the Board). It then suggested the constitution of the CauveryManagement Board, its composition, its items of business, etc. It alsorecommended the composition of the Cauvery Water RegulatoryCommittee and outlined its functions. The Cauvery Management Boardwas also required to submit an annual report to the four party-Statesbefore the 30[th] of September of each year. The Tribunal prescribedguidelines for the Cauvery Management Board which besides beingexhaustive were intended to touch upon the functional details relating tothe supplies out of the allocated shares. We do not intend to state theguidelines laid down by the Tribunal as we shall be addressing to manyan aspect while analyzing the concept of the scheme as envisaged underSection 6.1 of the 1956 Act

R. Final order of the Tribunal

291. On the culmination of the above exercises, the Tribunalformulated its final order with its determinations and directions on all thefacets of the dispute. As the layout of the final order portrays thesummation of the adjudication made, it would be apposite to quote thesame as hereunder for immediate reference:

“Final Order and Decision of the Cauvery Water DisputesTribunal

The Tribunal hereby passes, in conclusion the following order:-

Clause-I

This order shall come into operation on the date of the publicationof the decision of this Tribunal in the official gazette under Section6 of the Inter-State Water Disputes Act, 1956 as amended fromtime to time.

Clause-II

Agreements of the years 1892 and 1924:

The Agreements of the years 1892 and 1924 which wereexecuted between the then Governments of Mysore and Madrascannot be held to be invalid, specially after lapse of about more

than 110 and 80 years respectively. Before the execution of thetwo agreements, there was full consultation between the thenGovernments of Madras and Mysore. However, the agreementof 1924 provides for review of some of the clauses after 1974.Accordingly, we have reviewed and re-examined variousprovisions of the agreement on the principles of just and equitableapportionment.

Clause-III

–This order shall supersede

i)The agreement of 1892 between the then Government ofMadras and the Government of Mysore so far as it related tothe Cauvery river system.

ii)The agreement of 1924 between the then Government ofMadras and the Government of Mysore so far as it related tothe Cauvery river system.

Clause-IV

The Tribunal hereby determines that the utilisable quantum ofwaters of the Cauvery at Lower Coleroon Anicut site on the-basis of 50% dependability to be 740 thousand million cubic feetTMC (20,954 M.cu.m.).

Clause-V

The Tribunal hereby orders that the waters of the river Cauverybe allocated in three States of Kerala, Karnataka and Tamil Naduand U.T. of Pondicherry for their beneficial uses as mentionedhereunder:-

In addition, we reserve some quantity of water for (i)environmental protection and (ii) inevitable escapages into thesea as under:-

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(i) Quantity reserved for environmental – 10 TMC

The State of Kerala has been allocated total share of 30 TMC,the distribution of which in different tributary basins is as under:

Clause – VII

In case the yield of Cauvery basin is less in distress year, theallocated shares shall be proportionately reduced among theStates of Kerala, Karnataka, Tamil Nadu and Union Territory ofPondicherry.

Clause VIII

The following inter-State contact points are identified formonitoring the water deliveries:

i)Between Kerala nd Karnataka:Kabini reservoir siteii)Between Kerala and Tamil - Nadu : Chavadiyoor G.D. site a) For Bhavani sub-basinIt is Freported that Chavadiyoor gauge site was being operated by the State of Kerala which could be revived for inter-State : Amaravathy reservoir observations. site

b) For Pambar sub-basinGiii)Between Karnataka and Tamil :Billigundulu G.D. Nadusite/any other site on common borderiv)Between Tamil Nadu and : Seven Contact points Pondicherryas already in operation”

Clause-IX

Since the major shareholders in the Cauvery waters are the Statesof Karnataka and Tamil Nadu, we order the tentative monthlydeliveries during normal year to be made available by the Stateof Karnataka at the inter-State contact point presently identifiedas Billigundulu gauge and discharge station located on the commonborder as under:

The above quantum of 192 TMC of water comprises of 182TMC from the allocated share of Tamil Nadu and 10 TMC ofwater allocated for environmental purposes.

The above monthly releases shall be broken in 10 daily intervalsby the Regulatory Authority.

The Authority shall properly monitor the working of monthlyschedule with the help of the concerned States and Central WaterCommission for period of five years and if any modification/adjustment is needed in the schedule thereafter, it may be workedout in consultation with the party States and help of Central WaterCommission for future adoption without changing the annualallocation amongst the parties.

Clause X

The available utilisable waters during water year will includethe waters carried over from the previous water year as assessedon the 1[st] of June on the basis of stored waters available on thatdate in all the reservoirs with effective storage capacity of 3TMC and above.

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Clause – XI

Any upper riparian State shall not take any action so as to affectthe scheduled deliveries of water to the lower riparian States.However, the States concerned can by mutual agreement and inconsultation with the Regulatory Authority make any amendmentin the pattern of water deliveries.

Clause-XII

The use of underground waters by any riparian State and U.T.of Pondicherry shall not be reckoned as use of the water of theriver Cauvery.

The above declaration shall not in any way alter the rights, ifany, under the law for the time being in force, of any privateindividuals, bodies or authorities.

Clause-XIII

The States of Karnataka and Tamil Nadu brought to our noticethat few hydro-power projects in the common reach boundaryare being negotiated with the National Hydro-Power Corporation(NHPC). In this connection, we have only to observe thatwhenever any such hydro-power project is constructed andCauvery waters are stored in the reservoir, the pattern ofdownstream releases should be consistent with our order so thatthe irrigation requirements are not jeopardized.

Clause-XIV

Use of water shall be measured by the extent of its depletion ofthe waters of the river Cauvery including its tributaries in anymanner whatsoever; the depletion would also include theevaporation losses from the reservoirs. The storage in anyreservoir across any stream of the Cauvery river system exceptthe annual evaporation losses shall form part of the availablewater. The water diverted from any reservoir by State for itsown use during any water year shall be reckoned as use by thatState in that water year. The measurement for domestic andmunicipal water supply, as also the industrial use shall be madein the manner indicated below:

Use

Measurement

Domestic and municipal Water supply

By 20 per cent of the quantity of water diverted or lifted from the river or any of its tributaries or from any reservoir, storage or canal.

Industrial use

By 2.5 per cent of the quantity of water diverted or lifted from the river or any of its tributaries or from any reservoir, storage or canal.

Clause-XV

In any riparian State or U.T. of Pondicherry is not able to makeuse of any portion of its allocated share during any month in aparticular water year and requests for its storage in the designatedreservoirs, it shall be at liberty to make use of its unutilized sharein any other subsequent month during the same water yearprovided this arrangement is approved by the implementingAuthority.

Clause-XVI

Inability of any State to make use of some portion of the waterallocated to it during any water year shall not constitute forfeitureor abandonment of its share of water in any subsequent wateryear nor shall it increase the share of other State in the subsequentyear if such State has used that water.

Clause-XVII

In addition, note shall be taken of all such orders, directions,recommendations, suggestions etc. which have been detailedearlier in different chapters/volumes of the report with decisionfor appropriate action.

Clause XVIII

Nothing in the order of this Tribunal shall impair the right orpower or authority of any State to regulate within its boundariesthe use of water, or to enjoy the benefit of waters within thatState in manner not inconsistent with the order of this Tribunal.

antity from utaries torage uantity from utaries torage

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Clause-XIX

In this order,

(a) “Normal year” shall mean year in which the total yield ofthe Cauvery basin is 740 TMC.

(b) Use of the water of the river Cauvery by any person orentity of any nature whatsoever, within the territories of Stateshall be reckoned as use by that State.

(c) The expression “water year” shall mean the year commencingon 1[st] June and ending on 31[st] May.

(d) The “irrigation season” shall mean the season commencingon 1[st] June and ending on 31[st] January of the next year.

(e) The expression “Cauvery river” includes the main stream ofthe Cauvery river, all its tributaries and all other streamscontributing water directly or indirectly to the Cauvery river.

(f) The expression “TMC” means thousand million cubic feet ofwater.

Clause-XX

Nothing contained herein shall prevent the alteration, amendmentor modification of all or any of the foregoing clauses byagreement between the parties”.

[emphasis supplied]

S. Arguments advanced on behalf of State of Karnataka as regardsthe allocation of water on various heads

S.1 Submissions of Mr. Fali S. Nariman:

292. It is submitted by Mr. Nariman, learned senior counselappearing on behalf of the State of Karnataka, that while Tamil Nadu’sstatement of claim before the Tribunal set out that it had developed28.20 lakh acres of irrigation before 1974, the Tribunal’s final orderrecognised Tamil Nadu’s right to develop only 21.38 lakh acres. However,the Tribunal, in an unreasonable and inequitable manner, allocated waterto Tamil Nadu for irrigating an additional 3.32 lakh acres on the vagueground of “merit and equity”. This additional allocation for 3.32 lakhacres lay squarely outside the ambit of the 1924 Agreement and could

Anot be termed as equitable apportionment. Further, the Tribunal’s allocationof water was not based on the principles of equitable apportionment aselaborated in the Helsinki Rules, 1966 which set out that such kind ofapportionment must be done to satisfy the needs of basin State withoutcausing substantial injury to co-basin State. The Tribunal allocatedwater on the basis of the 1924 Agreement which was based on flowBrather than on the basis of established and comparative needs of theparties. He submitted that Karnataka’s stance before the Tribunal hadalways been that the needs of the States, rather than the flow of thewater, ought to be the basis for apportionment. This need-basedapportionment depends on the contribution of water to the river valleyCby each State, the population of each State in the river basin and thecultivable area of each State in the basin requiring application of waterto grow crops. None of these factors had been given due importance bythe Tribunal even though they were highlighted by this Court in In Re:Presidential Reference (Cauvery Water Disputes Tribunal) (supra).

D293. He submitted that such quantum of water had been allocatedafter taking into account the land in Tamil Nadu which was outside thescope and purview of the 1924 Agreement. Tamil Nadu itself hadconsistently taken the stand that the 1924 Agreement was the law onthe subject and that the parties had to be governed by the terms therein.Thus, Tamil Nadu could not benefit from excess water allocated on theEbasis of land which lay outside the scope of the 1924 Agreement. It ishis further submission that over and above the transgressions made bythe Tribunal, it had also treated Karnataka unfairly by failing to considerthe constraints imposed on Karnataka’s predecessor State and byoverlooking the needs of Karnataka while allocating water. The Tribunal

Fhas given several concessions to Tamil Nadu during the course of hearingand also granted Tamil Nadu water far in excess of its needs and outsidethe scope of the 1924 Agreement despite the evidence on record. Hehighlighted this aspect by referring to the Saldanha Committee Report,1977 which had recommended large savings in existing use of water

and had allocated only 393 TMC of water to Tamil Nadu as opposed toGthe significantly larger quantum allocated by the Tribunal.

294. He argued that alternatively, the allocation of water could bedone equitably and in accordance with justice by restoring equal rightsto the party-States. He submitted that Karnataka and Tamil Nadu wereco-equal States and that justice had to be done to both while allocatingHwater, fact which the Tribunal had failed to recognise. He submitted

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

that the various applicable factors set out in the Helsinki Rules, 1966were more or less evenly balanced between the two States and thesame have not been kept in view. Further, based on the maxim thatequality was equity, the balance or remaining volume of water availableafter subtracting the share of Kerala and Puducherry and afteraccounting for wastage ought to have been divided equally betweenKarnataka and Tamil Nadu. According to his calculations, Karnatakaand Tamil Nadu would each get 339.5 TMC of water.

S.2 Submission of Mr. S.S. Javali:

295. Supplementing the argument of Mr. Nariman, Mr. Javali,learned senior counsel appearing for Karnataka, submitted that theTribunal had recorded its findings based on conjectures and surmisesrather than on evidence. He took this Court through the record ofproceedings to highlight the point as to how the Tribunal had made severalobservations which are founded on materials on record. Further, theTribunal also allowed Tamil Nadu to file an affidavit (Ext. 1665) regardingcrop water requirement much after the stage of closing of evidence and,in fact, relied upon the said affidavit while allocating water. Karnatakawas not even allowed to cross examine Tamil Nadu on the said affidavitand Tamil Nadu unjustly gained an advantage over Karnataka. Additionally,Tamil Nadu failed to establish that it had suffered injury on account ofKarnataka’s actions, sine qua non for maintaining the complaint. Healso touched on several other aspects that the Tribunal failed to consider,including drinking water for the city of Bengaluru, excess water alreadyavailable to Tamil Nadu, Karnataka’s water projects and its droughtareas, and overall, the frustration of Karnataka’s claims and the denialof complete justice to Karnataka. The Tribunal failed to account for allthe aforesaid shortcomings and its final decision was grossly violative ofthe principles of natural justice.

296. He relied upon the judgments in In Re: PresidentialReference (Cauvery Water Disputes Tribunal) (supra), Union of Indiaand another v. Tulsiram Patel[32], Satyavir Singh and others v. Unionof India and others[33], A.K. Kaul and another v. Union of Indiaandanother[34], Anisminic Ltd. v. Foreign Compensation[35], Ganga

32 (1985) 3 SCC 39833 (1985) 4 SCC 252

34 (1995) 4 SCC 7335 [1969] 1 All ER 208

AKumar Srivastava v. State of Bihar[36], P.S.R. Sadhanantham v.Arunachalam and another[37], Bengal Chemicals & PharmaceuticalsWorks Ltd., Calcutta v. Their Workmen[38], Jose Da Costa & anotherv. Bascora Sadasiv Sinai Narcornim and others.[39], Ram Piari v.Bhagwant and others[40], Phulchand Exports Ltd. v. O.O.O. Patriot[41],Crompton Parkinson (Works) Pvt. Ltd., Bombay v. Its WorkmenBand others[42], Vashit Narain Sharma v. Dev Chandra and others[43],Ram Bharosey Agarwal v. Har Swarup Maheshwari[44] and JamshedHormusji Wadia v. Board of Trustees, Port of Mumbai and another[45].

S.3 Contention raised by Mr. Mohan V. Katarki:

C297. Mr. Katarki, appearing for the State of Karnataka, urgedthat the affidavit (Ext.1665) stated that the crop water requirementsmentioned therein were estimated in consultation with Tamil NaduAgriculture University; however, no material was placed on record tojustify such consultation. Certain formulae mentioned in the affidavit(Ext. 1665) to arrive at the crop water requirements were also incorrect.DThe assertions made in the affidavit (Ext.1665) especially with regard toover estimation of evaporation of crops and under estimation of effectiverainfall, were blatantly incorrect. Tamil Nadu also incorrectly interpretedthe evidence of Karnataka in an attempt to bolster its own case. TamilNadu also attempted to justify its affidavit (Ext. 1665) by arguing thatEthe calculations made therein with respect to evaporation were basedon the Government of India (GoI) guidelines, 1984 whereas Karnatakahad relied upon papers from the United Nations Food and AgricultureOrganisation (FAO). Tamil Nadu incorrectly argued that in such conflict,the guidelines issued by the GoI had to take precedence. He submittedthat the GoI guidelines and FAO papers had to be read together and thatFthe methodology adopted by Tamil Nadu in making such calculationswas too general. Such general methodology could not be applied to thespecific facts of the case. During cross examination, Tamil Nadu’s own36 (2005) 6 SCC 21137 (1980) 3 SCC 141G38 (1959) (Supp) (2) SCR 13639 (1976) 2 SCC 91740 (1990) 3 SCC 36441 (2011) 10 SCC 30042 (1959) Supp (2) SCR 93643 (1955) 1 SCR 50944 (1976) 3 SCC 435H45 (2004) 3 SCC 214

witness deposed that Tamil Nadu’s water requirement was only 242TMC and on this basis itself, the calculation of water to be provided byKarnataka at the Mettur reservoir should have only been 137 TMC asagainst the 377 TMC claimed by Tamil Nadu.

298. He took this Court through the factual aspects of how thequantity of rainfall affected the flow of the river. Heavy rainfall resultedin greater run-off water which fed the river while moderate or lesserrainfall resulted in lesser run-off as the water would percolate into theground and increase the level of ground water.

299. He then submitted that the Tribunal also failed to factor TamilNadu’s admission before the Cauvery Fact Finding Committee that itsSamba crop was fed primarily by the North-East monsoon. Tamil Naduintentionally downplayed the contribution of this rainfall in its affidavit(Ext. 1665) to assert that it needed more water to irrigate such crop.The Tribunal adopted almost the entirety of Tamil Nadu’s affidavit (Ext.1665) for estimating crop water requirements while making only minorcorrections in its final order.

300. He further submitted that Tamil Nadu obstructed thedevelopment of water projects in Karnataka thereby resulting in largetracts of land in Karnataka remaining undeveloped. Tamil Nadu wronglyinvoked Karnataka’s so-called obligation to obtain its consent under the1892 and 1924 Agreements and in the case of the Kabini project, TamilNadu did not give its consent even after its own technical officers hadagreed to the same. Tamil Nadu also stalled the Harangi project bywrongly insisting on consent from the erstwhile State of Coorg whichwas not even requirement under the Agreements.

301. He then submitted that the equitable share of water to beallocated to the party-States had to be based on needs rather than on theflow of the river. No State had any right to natural flow of an inter-stateriver and several factors had to be considered while assessing the needs,like basin factors, drought area and population. He took us through severaldoctrines and theories including the Harmon Doctrine, Natural FlowTheory and Helsinki Rules, 1966 to emphasise his point. He also reliedupon the judgment of New Jersey v. New York (supra).

302. He submitted that in Karnataka’s case, the aforementionedfactors had to be looked at in combination with Karnataka’s claim underthe 1924 Agreement of an area of 12.64 lakh acres. Karnataka had alarge extent of drought prone areas which required suitable allocation

Aof water. While Karnataka claimed quantity of 408 TMC for irrigationof 27.29 lakh acres, the Tribunal arbitrarily considered an area of only18.85 lakh acres while allocating water to Karnataka. The Tribunal appliedthe rule of priority contrary to the rules of equitable apportionment andexcluded large areas of land based on incorrect interpretation of the1924 Agreement and also reduced the water allocated to various waterBprojects based on flimsy reasoning. By reducing the allocation of waterto various water projects in Karnataka on the ground of constraint ofwater availability/highly water-deficit basin, the Tribunal was left with45.08 TMC of water, termed as “balance amount” of water, which itthen distributed between all the States. This reduction and redistributionCof water was grossly inappropriate and not based on the principles ofequity. Such volume of “balance amount of water” had been taken fromKarnataka’s projects citing lack of water for other States and then beenunfairly distributed between all the States. As per Karnataka’scalculations, the actual amount of water to be allocated to Tamil Nadu

ought to have been 311.6 TMC as opposed to the amount of 390.85DTMC allocated by the Tribunal.

303. He then argued that Tamil Nadu was not entitled, either inlaw or on fact, to claim water on the ground of protected use. Hesubmitted that the concept of “existing use” could not be claimed as

right but could only be considered as factor influencing equitableEapportionment. Existing use had to arise as legally protected interestof the State and was not justifiable either by domestic law or byinternational law. Although several international legislations provided forexisting use, in each of those cases, it was clear that existing use alongwith potential use was, at best, to be considered as contributing factorFand not as right. The extent of existing use had to be measured by theconcept of beneficial use and not by diversion or natural flow. TamilNadu’s claim of existing use of water for irrigating 28.2 lakh acres wasuntenable. The concept of whole flow/natural flow was also imposed onMysore by virtue of the impugned agreements. He has commended usto the authorities in In Re: Presidential Reference (Cauvery WaterGDisputes Tribunal) (supra), State of Nebraska v. State of Wyoming(supra), State of Colorado v. State of New Mexico (supra), The Stateof Washington Department of Ecology v. Clarence E. and Peggy V.Grimes[46]and In Re: Hague v. Nephi Irrigation Co.[47].

46 121 Wash. 2d. 459H47 16 Utah 421, 52 P. 765 (1898) : 41 LRA 311

304. He further argued that Karnataka was entitled to waterallocation of 407.70 TMC considering the scale of its existing and ongoingwater projects set out in its statement of claim before the Tribunal in1990. Tamil Nadu did not dispute that these water projects presentlyexisted and ongoing, rather it only argued that they were unauthorized,illegal and operating without taking its consent as supposedly mandatedunder the 1892 and 1924 Agreements.

305. He then submitted that the territorial changes of the riparianStates lying in the Cauvery river and its tributaries materially affectedthe basis of rights and obligations of Madras and Mysore under the 1924Agreement. He elaborated as to how several territories were eitherupper or lower riparian based on the 1892 and 1924 Agreements. Afterthe commencement of the Constitution and subsequently, the 1956 Act,the new State of Mysore, which was originally mid-riparian State,became an upper riparian State and the State of Madras, which wasearlier both upper and lower riparian, became lower riparian State.

306. He challenged Tamil Nadu’s argument that water allocatedto Karnataka for its crop should be reduced. Karnataka’s crop waterrequirement had not been challenged by any State and any argument tothe contrary was merely an after-thought. Further, Tamil Nadu’s entireargument revolved around the premise that the soil in Karnataka wasunproductive for irrigation and was unsustainable for paddy growth. Thispremise itself was baseless insofar as Tamil Nadu admitted in its ownpleadings that Karnataka’s soils were “favourable to grow wide rangeof crops”. Further, the Helsinki Rules, which set out the basis for equitableapportionment, did not recognise soil condition or quality as relevantfactor in equitable allotment. The relevant factors were the existence ofcultivable land or area and shortage of rainfall to meet the consumptiveutilisation of crop. He also argued that one riparian State’s productiveuse of water was no ground to deprive another co-riparian State’s share.

307. It is canvassed by him that the Tribunal did not allocateexcessive water to Karnataka’s water projects, especially the HemavathyProject. He urged that Karnataka was entitled to construct reservoirof 45 TMC with utilisation capacity of 67.5 TMC. Since the currentgross capacity of the Hemavathy reservoir was only 37.1 TMC and theTribunal had allocated only 43.67 TMC, there was no question of anyexcessive water being allocated to Karnataka. As regards Tamil Nadu’sargument that the number of days to be considered for growing paddy in

AKarnataka should be reduced from 145 days to 120 days and that thewater allocation should be reduced accordingly, as also the argumentthat the puddling requirement should be reduced from 267 mm to 150/200 mm, he replied that these facts and figures had, in fact, been nullifiedby the findings of the Tribunal and by the Assessors appointed by theTribunal whose findings were contrary to the said argument.B

308. He also challenged Tamil Nadu’s argument before theTribunal that excessive water had been allocated to Karnataka for ricecultivation. He submitted that the rice cultivated in Karnataka was indrought regions and could not be compared to the rice cultivated in non-drought areas in Tamil Nadu as there was substantial difference inCcontributing factors such as percolation and puddling losses. Climaticconstraints justified higher water allocation to drought areas. For thesame reason, Tamil Nadu’s demand for higher allocation of water wasalso unjustified and improper. Infact, Tamil Nadu’s cultivation of doublecrop was completely inconsistent with the prevailing climatic conditionsDin the area. Tamil Nadu’s Kuruvai crop, which would have benefittedfrom water provided by the North-East monsoon, was instead primarilysustained by irrigation supplies from Karnataka as it was cultivated muchbefore the onset of the rains. The only sensible course of action wouldbe to disallow Tamil Nadu’s Kuruvai double crop and allow only theSamba single crop.E

S.4 Proponements of Mr. Shyam Divan:

309. Mr. Divan, learned senior counsel appearing for Karnataka,has stressed on the need to recognize the importance of ground waterwhile allocating available water resources. Ground water is renewableFresource and, if not extracted regularly, would reduce the absorptioncapacity of the underlying aquifer resulting in rain water/surface waterbeing wasted as run-off. Extraction of ground water is, thus, an optimalutilisation of available resources.

310. He submitted that the Tribunal had erroneously excluded aGlarge coastal area while rejecting the argument for groundwater. Healso submitted that the Tribunal committed patent error by failing toreduce the amount of water allocated to Tamil Nadu despite recognisingthe availability of 20 TMC ground water in Tamil Nadu and the conjunctiveuse of the same along with surface water. Such quantum of groundwater ought to have been factored in as an available/additional resourceHin Tamil Nadu for the purposes of irrigation.

311. The quantum of water allocated to Tamil Nadu under thehead of “irrigation requirement” ought to have been reduced by thequantum of available ground water by either 47 TMC (as per TamilNadu’s rejoinder recorded in the final report of the Tribunal) or 30 TMC(as per Tamil Nadu’s pleadings) or, at the very least, 20 TMC (as per thefindings of the Tribunal) and, accordingly, the quantum of water to beprovided by Karnataka at the inter-state border also ought to have beenreduced proportionately. The efficiency of utilising ground water, ascompared to surface water, was much higher and when factoring theavailable amount of ground water and its greater utilisation efficiency,the aforementioned figures of 47/30/20 TMC ought to be increased to72/46/30 TMC respectively.312. He then submitted that the Tribunal had completelyoverlooked the water requirements for the city of Bengaluru in its finalorder. Bengaluru being metropolis with burgeoning population oughtto have been treated as sui generis and been given special dispensationwhile water was being allocated. Water supply for Bengaluru was entirelysourced from the Cauvery river but its use could not be treated as atrans-basin diversion as erroneously claimed by Tamil Nadu which itselfwas responsible for trans-basin diversion of water to irrigate an area of3.29 lakh acres within its territory. The Tribunal allocated minisculeamount of 1.85 TMC to Karnataka under the head “domestic andindustrial water requirement projected for 2011” while arriving at 20%consumptive use for domestic purposes and 2.5% for industrial purposes.He did not challenge the percentage of consumptive use; rather hecontended that the Tribunal had not considered the actual waterrequirements for the city of Bengaluru.

313. He then contended that the Tribunal had wrongly consideredwater allocation for only 1/3[rd ]of the population of Bengaluru on the basisthat 36% of the city lay within the basin. This amount of water was evenfurther reduced by the Tribunal on the basis of unverified figures providedby Tamil Nadu. The Tribunal also reduced the quantum of water allocatedto Bengaluru on the basis that 50% of its needs could be met fromgroundwater without relying upon any evidence or pleadings to that effect.For Bengaluru, groundwater, at best, could be considered as acomplementary/supplementary source rather than primary source.While allocating water to the States, priority had to be given to drinkingwater but the Tribunal had failed to consider this aspect. Accordingly,Bengaluru should be given an increased water allocation of 10.14 TMC.

A314. He contended that the water requirements for Bengaluruwere projected up till the year 2011 as set out in the pleadings/submissionswhich had been submitted at the time of the initial hearing in 1990.Seventeen years had elapsed by the time the final order was passed.The projections mentioned in the pleadings, thus, could not be limited tillthe year 2011 especially when the Tribunal itself had suggested thatBdrinking water ought to be calculated on the basis of projections for2025. Despite this factual situation, the Tribunal proceeded on the basisof projections till the year 2011. The time gap between the submission ofpleadings and the final order ought to have been relevant factor whileallocating water.

315. It is further urged by him that the Tribunal had erroneouslyrejected Karnataka’s claim of water for its second crop while allowingTamil Nadu’s claim for second crop. Such rejection was inequitable andimproper. The Tribunal had allowed allocation of water for Tamil Nadu’sThaladi second crop to the extent of 1.85 lakh acres with the justificationDthat approximately 95,000 acres were developed prior to 1924 and afurther 90,000 acres were developed as per the 1924 Agreement. Basedon equitable apportionment, Karnataka should have been allocated atleastthe same amount of water for an equivalent area of 1.85 lakh acres, butthe Tribunal failed to do so. Surprisingly, while recognising Karnataka’sentitlement for second crop to the extent of 67,000 acres, the TribunalEfailed to allocate any water for the same.

316. The Tribunal also failed to account for the fact thatKarnataka’s farmers had been growing second crops much prior to 1974and by the time the final order was passed in 2007, the farmers had beengrowing second crop for decades. These farmers had developed theirFpractices and expectations based on second crop and it was whollyinequitable for the Tribunal to reject Karnataka’s claim. He also reiteratedKarnataka’s stance that the final figure of 45.08 TMC “balance resource”of water was erroneously arrived at. The Tribunal should have firstconsidered and allocated water for Karnataka’s claim for second cropGafter which it could have arrived at “balance” amount of water available.317. It is his further submission that the Tribunal had incorrectlyrejected all schemes for lift irrigation in its final order. This wasproblematic for Karnataka which relied upon lift irrigation, particularlyin drought-prone areas like the Kabini region, to the extent of almostH3.04 lakh acres which requires approximately 18 TMC of water. Tamil

Nadu, on the other hand, primarily relied on flow irrigation and minorirrigation and did not have any major lift irrigation schemes. Thus, theTribunal’s order rejecting all lift irrigation schemes substantially affectedKarnataka while making negligible impact on Tamil Nadu.

318. He also argued that the Tribunal had unjustifiably allocatedan excess amount of water to Tamil Nadu with respect to the CauveryMettur project. The 54.68 TMC of water allocated to Tamil Nadu for3.21 lakh acres was based on the deposition of Tamil Nadu’s WitnessNo. 1 and Tamil Nadu’s affidavit (Ext. 1665). The deposition of TamilNadu’s Witness No. 1 confirmed the contents of the Cauvery MetturProject Report which indicated that Tamil Nadu’s water requirementwas actually 41.89 TMC. On the other hand, Ext. 1665 had no evidentiaryvalue since the same was an unverified affidavit for which Karnatakawas not allowed to cross-examine the deponent. Even the Tribunal hadindicated that the said affidavit would not be relied upon for supportingTamil Nadu’s case, rather it would only be used as an admission. Thereliance placed on Ext. 1665 was misplaced and ought not to have beenconsidered at all. The evidence of Tamil Nadu’s Witness No. l shouldhave been the sole criteria for allocation of water for the Cauvery Metturproject. Thus, the Tribunal should have allocated not more than 41.89TMC of water to Tamil Nadu for the said project and not 54.68 TMC asdone in the final order.

319. Finally, he submitted that the Tribunal had failed to recognizethat the area of irrigation requiring water allocation, as submitted byTamil Nadu, was covered by two irrigation projects/systems in TamilNadu and had awarded an excess amount of 9.51 TMC in that regard.This “double accounting” of irrigable areas was erroneous and the waterallocated to Tamil Nadu had to be proportionately reduced. Tamil Nadu’switness, A. Mohanakrishnan, had himself admitted that the existing secondcrop area was 70,000 acres whereas the Tribunal considered the area tobe 87,500 acres. Similar admissions had been made with respect to otherareas in Tamil Nadu. Thus, the water allocated by the Tribunal was farin excess of the water required by such areas for irrigation.

T. Arguments put forth by the State of Tamil Nadu

T.1 Submissions of Mr. Shekhar Naphade:

320. Mr. Naphade, learned senior counsel, opened the argumentson behalf of the State of Tamil Nadu by taking this Court through several

Adocuments, including the National Water Policies of 1987 and 1992, theHelsinki Rules, 1966 and the Campione Consolidation of the InternationalLaw Association Rules on International Water Resources, relevanthistorical aspects of the matter and the evidence on record. He alsotook this Court through the scope and extent of the 1956 Act and pointedout the interplay between several sections of the Act. He submitted thatBthe term ‘agreement’ as mentioned in Section 2(c) of the 1956 Act includedall agreements executed prior to the coming into force of the Act andthat there was no limitation on any kind of agreement under this section.Even pre-1947 agreements in relation to the use, distribution or controlof inter-State waters were brought under this ambit. Thus, Karnataka’sCsubmission that the 1892 and 1924 Agreements were not within the scopeof the said Act was baseless. He submitted that the river was ahydrological unit and remained unaffected by political boundaries.321. He then took this Court through certain statistical data andevidence on the basis of which water ought to be apportioned betweenDthe States. He submitted that the water ought to be apportioned equitablyin line with the formula laid down in the Helsinki Rules, 1966. The densityof population is much higher in Tamil Nadu than in Karnataka thus puttinga greater demand on water for all sectoral uses. He submitted that theCauvery basin upto the Mettur Dam is influenced by the South-Westmonsoons whereas the area downstream of the Mettur Dam is influencedEby the North-East monsoons which are erratic, undependable and, beingassociated with cyclonic storms, also responsible for heavy rainfall andconsequent loss of agricultural produce in the basin. Karnataka is primarilyinfluenced by the more effective South-West monsoons whereas TamilNadu, lying downstream from the Mettur Dam, faces the brunt of theFineffective North-East monsoons. He stressed that the North-Eastmonsoons could not be relied upon for irrigation owing to theirunpredictability, fact which Karnataka’s witnesses had also deposedto. He referred to the Saldanha Report, 1977, specifically the chart therein,which set out the storage capacity of water much above the 124 TMC

figure. He expressed his apprehension that if Karnataka was grantedGfurther capacity to store water, such excess water retention would bethe cause for further disputes between the States.

322. On the aspect of soil capacity in the two States, he submittedthat while Tamil Nadu has clayey soil which is ideal for paddy cultivation,Karnataka has red, loamy/laterite soil which is more suited for dry crop.H

He highlighted several pieces of evidence to buttress this argumentincluding depositions from Karnataka’s witnesses wherein it has beenstated that Karnataka should restrict its rice crop and not grow secondrice crop. He submitted that the water requirement for growing paddy inTamil Nadu is substantially less than the requirement for growing thesame amount of paddy in Karnataka and there is greater productivity ofgrowing paddy crops in Tamil Nadu. He also mentioned that therecommendations made by the C.C. Patel Committee were outdatedand that Karnataka’s reliance on the same was unjustified.

323. He also set out the three main kinds of paddy crop grown inTamil Nadu, namely, Kuruvai, Thaladi and Samba, and the waterrequirements for growing these crops and how Tamil Nadu’s climatewas ideal for growing such crop. He submitted that owing to the croppingpattern combined with the soil types, there should be no restriction onTamil Nadu for growing second crop of paddy whereas Karnataka shouldbe restricted from growing any second rice crop and even its first ricecrop should be limited. He has placed reliance on data and evidenceregarding Karnataka’s Kabini and Hemavathy water projects. He arguedthat these projects had violated the provisions of the 1892 and 1924Agreements and have affected Tamil Nadu’s existing use of water. It issubmitted that Karnataka constructed the Hemavathy Project withouttaking Tamil Nadu’s consent and also failed to provide Tamil Nadu withdetails about the project as mandated under the 1892 and 1924Agreements. The Hemavathy reservoir was designed in such way asto deplete its entire storage capacity without making provisions for carry-over storage thereby preventing any surplus water from being releasedto Tamil Nadu. Karnataka proposed the Kabini Project in such manneras to utilise the entire yield of water at the site of the dam therebydenying water to the lower riparian States. The Kabini reservoirdiminished the flow of water downstream to Tamil Nadu, thus, affectingTamil Nadu’s existing use. Karnataka submitted multiple proposals forsupplementing the water from this project with lift irrigation schemesbut this was expressly disallowed by the Tribunal in its final order. Inspite of this, Karnataka has gone ahead and executed lift irrigationscheme in the Kabini sub-basin and utilized the same for irrigation, whilerefusing to release water to Tamil Nadu.324. He submitted that while the Tribunal had overall allocatedwater to Karnataka for an area of 18.853 lakh acres, that figure included

Aan area of 3.44 lakh acres which had been erroneously allowed ongrounds of merit without any evidence or material to justify the same.Thus, the overall figure of 18.853 lakh acres deserved to be reduced by3.44 lakh acres. This was without prejudice to the argument that thearea to be considered had to be restricted to the existing area as in June1990, the cut-off date for the Tribunal’s consideration. Further, the areaBunder consideration for Karnataka’s Kharif paddy has to be reducedand the number of days for cultivation also had to be cut down from 145to 125 days. He stressed on the evidence on record submitting that thereis uncontroverted expert opinion which categorically states thatKarnataka was responsible for wastage of large quantities of water andCthat Karnataka ought to reduce its paddy crop. This evidence had notbeen considered by the Tribunal. He also submitted that Karnataka shouldnot be allowed to draw water from the major water reservoirs, viz.,Harangi, Hemavathy, Krishna Raja Sagara and Kabini, during the summerseason except for perennial crop and domestic needs and this, too, has

to be monitored by the Regulatory Authority. He suggested thatDKarnataka ought to consider the possibility of building another dam aboveMettur at the border to resolve its water problems.

325. It is further argued by him that around 64% of Bengaluru layoutside the basin and the Tribunal was right to consider only 1/3[rd ] ofBengaluru’s needs while determining its water supply. Any further waterEsupplied to Bengaluru would amount to trans-basin diversion in completecontravention of the principles of equitable apportionment, the NationalWater Policy and the Helsinki Rules, 1966. Such trans-basin diversion isdetrimental and would lead to chaos. He also submitted that Karnataka’scontention that the Tribunal ought to have considered water projectionsFfor the year 2025 would necessarily imply that water resources for TamilNadu’s territories, especially the urban areas, would also have to bedistributed in the same light. Karnataka did not follow the Town PlanningAct/Rules and allowed Bengaluru to grow unchecked and unplannedand also failed to plan for the development of Bengaluru’s water supply,

fact made clear from its Master Plan of 1976 which significantly omitsGto provide for the domestic water needs of Bengaluru. Further, Karnatakadid not treat the sewage water released by Bengaluru and such sewagewas being released into the Cauvery which, in turn, was flowing downto Tamil Nadu. Karnataka would be able to procure large amount ofwater for Bengaluru if it treated such sewage water.

326. He argued that Karnataka already had adequate andalternate water resources for Bengaluru, including ground water, theNetravathy River and the Tungabhadra tributary of Krishna River. Theseresources were under-utilised and could be used to provide water toBengaluru. Per contra, Chennai was woefully in short supply of waterowing to lack of water resources and poor rainfall. Tamil Nadu wasforced to divert water from other areas to Chennai to meet such shortfall.He argued that it was unfair to burden Tamil Nadu with the responsibilityof providing for Bengaluru’s water supply when Karnataka itself hadbeen negligent in planning for it, especially when the Cauvery basin wasa drought basin and large parts of Tamil Nadu were also drought prone.327. He also stressed on Tamil Nadu’s method used to calculatecrop water requirements as the guidelines based on Food and AgricultureOrganisation (FAO) guidelines which were also recorded in theGovernment of India (GoI) Guidelines, 1984. He took this Court throughthe various factors and calculations involved under these guidelines,including evapo-transpiration, percolation loss, puddling and nurseryrequirements, system efficiency and effective rainfall. He submitted thatTamil Nadu had adopted calculations for the above factors based on theFAO and that Karnataka’s contention that Tamil Nadu had miscalculatedthe extent of evapo- transpiration and effective rainfall was baseless.

328. He argued that as on the cut-off date (June 1990), TamilNadu had developed/irrigated an area of 29.269 lakh acres whereas thearea developed in 1972 was 28.208 lakh acres. Despite the above figures,the Tribunal gave concession for only 24.708 lakh acres while alsodisallowing large areas for second crop even though the agro-climaticconditions prevalent in the area were ideal for raising two crops. Hehighlighted that while Tamil Nadu had adopted 60% overall efficiencywhile calculating the gross irrigation requirement which was the maximumpossible level allowed, the Tribunal chose to adopt higher figure of65%. He took this Court through the evidence and record to submit thatthe Tribunal ought to have allocated higher quantum of water to TamilNadu and reduced the quantum allocated to Karnataka. He submittedthat under the 1924 Agreement, both Karnataka and Tamil Nadu wereallowed to extend the area under irrigation solely by improvement ofduty, without any increase in the quantity of water used, apart from thearea permitted under Clauses 10(iv) and 10(v). Karnataka strictly adheredto the 1924 Agreement till 1974 but claimed entitlement for areas which

Ait had not even developed after 1974. Tamil Nadu never claimed anyextra quantity of water other than the volume it was entitled to under theAgreement. He also stressed on the need to allow Tamil Nadu doublecropping owing to the favourable climatic and soil conditions whereasKarnataka ought not to be allowed double cropping owing to its droughtareas and sub-standard soil conditions.B

329. He then countered Karnataka’s submission that groundwaterwas an additional resource and submitted that such water supply couldnot be considered as an additional resource as it was recharged by surfacewater and was subject to various factors like rainfall and soilcharacteristics. Ground water levels were not consistent throughout theCyear and Karnataka’s construction of water projects had even reducedthe flow of water into the Mettur Reservoir which, in turn, had drasticallyreduced the groundwater recharge level available to Tamil Nadu.Estimating the levels of ground water was scientifically complicated anddifficult requiring huge amounts of data and field exploration. In fact,Dthere was no single comprehensive technique to determine ground waterand Karnataka’s own witness had deposed that it was not possible toestimate the recharge component of ground water when it was rechargedby surface flows and rainfall. The other Water Tribunals like NWDTand KWDT had not considered groundwater to be factor whileapportioning water, fact which was recorded by the Tribunal. TheEUNDP Report relied upon by Karnataka to establish its argument wasnot relevant in the present context as the same was outdated and therehad been substantial change in the flow regime. The Central WaterBoard too had not agreed with the assessment of the UNDP Report,concluding that the use of ground water could not be reckoned as use of

Fthe Cauvery river water. He also referred to the study conducted by W.Barber of World Bank, 1985 and the UNDP Study Report, 1973 in thatregard.

330. He submitted that in any event, from February to June/July,the water requirements of the entire Delta region had to be met fromGground water as there was no surface flow during that time. Reportsfrom government bodies recorded that the groundwater was requiredfor domestic and livestock uses during the aforestated months and, thus,such water could not be used for irrigation purposes. Additionally,groundwater in the Delta region was used for protective irrigation and togrow early nurseries. He submitted that the evidence on record showedH

that in the Cauvery Delta region, reduction in surface flow resulted inlesser groundwater recharge which ultimately resulted in salt waterintrusion from the sea. The quality of available ground water was ultimatelypoor, saline/brackish and unsuitable for use.

331. He submitted that Karnataka could not ask for 5 TMC waterout of the 10 TMC which had been allotted to Tamil Nadu towardsenvironmental needs. He submitted that certain minimum flow of theriver had to be maintained to keep the river free flowing as set out in theNational Water Policy, 2002. Such natural flow could not be consideredas wastage as it was essential for maintaining the ecology and ecosystemin and around the river. He also submitted that as regards the allegationthat 88 TMC of water was going into the sea and being wasted, therewere several factors to consider in that regard and that Tamil Nadu wastaking utmost care to ensure that no wastage occurred. certain minimumstandard of outflow had to be maintained to prevent erosion, reduce saltwater intrusion and to maintain marine life and bio diversity. Further, thetopography of the Delta region was such that no viable storage areacould be built to conserve this water. He submitted that the North--Eastmonsoons, being erratic, would result in heavy showers, not all of whichcould be conserved.

332. Further, Karnataka’s contention that there had to be an equalapportionment of water between the two States was untenable. He reliedupon the observation made by the Narmada and Krishna Water DisputesTribunals that the principle of equality did not imply that there must be anequal division of water between the States but instead meant that theStates must have equal consideration and equal economic opportunity.Such equality would not necessarily result in the same quantity of waterbeing provided to the parties.

333. He stressed that Tamil Nadu needed month-wise release ofwater from June onwards to ensure that its Kuruvai crops were irrigated.Post 1974, Karnataka had been impounding water in its reservoirs anddelaying flow of water to Tamil Nadu and contending that any shortfallcould be adjusted at the end of the season. He submitted that the waterwas needed at particular time, from June onwards, to irrigate its cropsand that any end-of-season release of water would not fulfill the objectiveof such water being used for irrigation purposes.

334. He also argued that Karnataka had been persistently defiantin preventing Tamil Nadu from utilizing its share of the Cauvery water

Aand that such defiance necessitated the need for the CauveryManagement Board. Karnataka had started construction on fourreservoirs across the Cauvery tributaries, viz., Kabini, Hemavathy,Suvarnavathy and Harangi, without taking the requisite approvals fromthe Planning Commission or consent from Tamil Nadu. Karnataka alsoobjected to the formation of the Tribunal and needlessly delayed theBproceedings. Even after the formation of the Tribunal, Karnataka violatedthe Tribunal’s interim order which had directed it to release 205 TMC ofwater at Mettur. Karnataka even went so far as to promulgate anOrdinance to nullify the interim order which was then set aside by thisCourt. Even when compelled to follow the interim order, KarnatakaCdelayed in constituting the implementation machinery required to enforcethe said order and also challenged the Tribunal’s order in separate courtproceedings to delay its implementation. Karnataka also refused to strictlyfollow the order thereby failing to ensure monthly quantities of waterinflows at the Mettur during the June period. Even after the final awardwas passed, Karnataka failed to ensure stipulated flows mandated byDthe award. In the light of Karnataka’s transgressions, he submitted thatthere was need for effective machinery to implement the Tribunal’sorder.

335. He also argued that the Tribunal was completely justified inrejecting Kerala’s claims for trans-basin diversion of water. Kerala hadEwrongly claimed that the Cauvery basin was surplus basin, somethingcompletely contrary to fact and which had been recorded by the Tribunal.Trans-basin diversion of water could not be allowed unless the needs ofin-basin requirements were met and even then, such diversion was againstthe spirit of the Inter-State Water Disputes Act. Kerala wished to operateFits hydro-electric projects but the Tribunal had clearly held that irrigationprojects had to be given preference to. Kerala tried to hoodwink theTribunal by adding irrigation components to its hydro-electric projects.The irrigation components were incidental to the primary use of theseprojects and in fact, such projects had not even been approved by thecompetent authorities.G

336. Even otherwise, the irrigation sought to be achieved by Keralawas excessively high and was done so without keeping in mind itslimitations in respect of soil and topography which required excessivewater to be utilised. Kerala was seeking to grow summer and perennialcrops utilizing water from deficient basin which was an unsuitableH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

proposition. Kerala already had good irrigation system in place andsuch irrigation was supplemented by rainfall which it receives. Keralaalso received drinking water supply from the Siruvani reservoir and severaldams had already been constructed across its rivers for providing water.The Tribunal, thus, rightly rejected Kerala’s claims.

337. He also challenged Karnataka’s submission as regards itsdrought area. He submitted that there is no universally accepted definitionof drought and if at all drought is to be considered as factor for equitableapportionment, then Tamil Nadu too has significant drought area.Karnataka’s claimed drought area is highly exaggerated but if the Tribunalwas to consider Karnataka’s drought area while allocating water, thenTamil Nadu also ought to be given proportionate share of water toirrigate its own drought area.

T.2 Contentions raised by Mr. Rakesh Dwivedi:

338. Mr. Dwivedi, learned senior counsel appearing for TamilNadu, argued, apart from other aspects which we have alreadyaddressed, on the aspect of injury suffered by/prejudicial affectationcaused to Tamil Nadu on account of Karnataka’s actions. He submittedthat there was ample evidence on record to prove that Karnataka’supstream abstraction post 1974 substantially reduced the area andquantum of water available to Tamil Nadu. Karnataka increased thearea of irrigation much beyond the scope of the 1924 Agreement which,in turn, affected the existing irrigation of Tamil Nadu and the evidencefor the same had been placed before the Tribunal. It was further submittedthat existing use of water was facet of equitable apportionment andKarnataka had failed to prove that its planned diversion of water wouldnot harm the existing, established use. Tamil Nadu’s claim was not withregard to the flow of water, as wrongly claimed by Karnataka, rather itwas based on protection of existing use established under the 1892 and1924 Agreements.

339. He argued that Karnataka’s plea that the erstwhile State ofMadras effectively had veto power over its water projects was untenable.The entire purpose of seeking consent from Madras before constructingany water project was to ensure that existing irrigation was not jeopardizedand even otherwise, consent was always required from the lower riparianState when constructing such projects. He also submitted that there hadbeen no violation of natural justice by the Tribunal while hearing thematter. It was submitted that the Tribunal had clearly analysed every

DEF

Aparameter and made suitable changes to such parameters as requiredwhile passing the final order. Tamil Nadu’s affidavit (Ext. 1665) wasmerely collation of materials already available on record. Pertinently,Karnataka itself contended that the Tribunal’s Assessors were notcompetent to assess crop water requirement as they relied on Ext. 1665but then relied upon the Assessors’ recommendation for justifying itsBown crop water requirement.

340. Both Mr. Naphade and Mr. Dwivedi touched upon the scopeand extent of this Court’s power under Article 136 of the Constitution ofIndia to hear an appeal against the Tribunal’s orders. It was submittedthat this Court had the discretion to use such power and that while theCextent of this power is wide in amplitude, this Court has traditionallyapplied judicial restraint while exercising it. It is submitted that the presentdispute is complex and riddled with factual and scientific complexitieswhich this Court may find insurmountable while assessing. It is also putforth that the Tribunal had taken into account various factual aspectsDand relied upon the assistance of technical experts while considering thescientific principles applicable to the present dispute in the course of thelong hearing in the matter. The Tribunal has also considered socio-economic factors and public interest while rendering its final decision.Considering the above submissions, thorough understanding of scientificprinciples as well as possessing relevant discipline in science to applyEthe scientific principles to the factual matrix is required and it is an exercisewhich would not fit into the accepted principle of judicially manageablestandards.

341. Mr. Naphade and Mr. Dwivedi have placed reliance onnumber of decisions to bolster their stand some of which have alreadyFbeen referred to and some shall be referred to wherever necessary.

U. Arguments advanced on behalf of the State of Kerala

342. Mr. Jaideep Gupta, learned senior counsel appearing on behalfof the State of Kerala, submitted that Kerala contributed around 147GTMC to the Cauvery basin, around 20% of the water, and had asked fora proportionate share of water by claiming 99.8 TMC. The Tribunal,however, had allocated meagre 30 TMC of water to Kerala, around4%, for its needs. Such allocation is absolutely not equitable. He arguedthat equity, and not equality, should govern the allocation of water betweenthe States and that it was unreasonable that Karnataka and Tamil NaduH

should be given equal share of the entire amount of water allocated bythe Tribunal. The concept of equity has been recognized in the HelsinkiRules, 1966 and the factors governing such apportionment have alsobeen mentioned therein, later affirmed in the Berlin Rules.

343. He went into the historical perspective and explained to thisCourt as to how Kerala, which was not party to the 1892 and 1924Agreements, became introduced to the dispute. He submitted thatKarnataka and Tamil Nadu were not wholly representative of the Cauverybasin and that Kerala too was an integral part of the basin, contributinga large percentage of the water. The 1892 and 1924 Agreements executedby and between Mysore and Madras did not bind Kerala, which was notparty to the same. None of the predecessor States to Kerala, viz.,Travancore, Cochin or Malabar, were recognized as interested partiesduring the disputes between the riparian States of the Cauvery basinand these riparian States also objected to the involvement of Kerala inthe dispute. He elaborated that even as per the definitions given in the1956 Act, Kerala could not be considered as principal successor Stateto its predecessor as its predecessor States were not party to the 1924Agreement. As the 1892 and 1924 Agreements were in the form oftreaties entered into between two sovereign entities, the Tribunal lackedthe jurisdiction to enforce them. He also submitted that when Keralaraised its objections before this Court regarding the necessity to be involvedin the matter, it was told to abstain from the proceedings until the matterwas finally adjudicated between Tamil Nadu and Karnataka.

344. He submitted that allocation of water by the Tribunal wasrequired to be based on certain factors and that such allocation had to bedone in particular manner. First, the Tribunal had to determine the totalyield of basin water including surface and ground water. Then, the totalyield of water had to be apportioned and there had to be mechanismfor release of such water. Finally, there needed to be monitoring systemto ensure that such release of water was done properly. He also submittedthat the allocation of water had to be done on need-based priority andthe Tribunal ought to have considered the consumptive and non-consumptive needs while making such allocation.

345. He submitted that although the Kabini and Bhavani tributariesof the Cauvery flowed through the erstwhile Malabar district of Madras,yet no developmental activities could be taken up in that region. Evenafter the State of Kerala was formed in 1956 by combining Travancore,

ACochin and Malabar, it could not take up any developmental activities inthe Malabar region due to protests from Tamil Nadu and Karnatakawho argued that the 1924 Agreement could only be reviewed in 1974.Even after 1974, all but one of Kerala’s projects were denied sanctionby the Central Government despite the fact that the Cauvery Basin inKerala had high head and steep gradient, thus, making the area idealBfor generation of hydro-electricity. Owing to its geography and topography,Kerala has higher capacity/potential to generate hydro-electricity. Thisfact had been proved before the Tribunal. Kerala also has an acuteshortage of electricity, problem which has stunted its industrial growthand there is pressing need to utilise the potential of water projects inCthe State. There was also an inability to set up alternate types of powerplants like nuclear power owing to the topography of the region. Also,the rainfall distribution in Kerala was such that there is no rain in summerand the west flowing rivers within the State go dry during the summerthereby causing water scarcity. All these factors have necessitated theconstruction of water projects in Kerala.D

346. He argued that the Tribunal’s refusal to allow Kerala’s waterprojects is based on an erroneous assumption that such projects wouldresult in trans-basin diversion of water. He submitted that Tamil Naduand Karnataka had exaggerated their claims resulting in an impressionbeing created that the Cauvery basin could not cater to their needs and,Ehence, was water deficient. He argued that legally, there is no bar onpreventing trans-basin diversion from water deficit basin. He alsotouched upon the concept of the doctrine of stability and submitted thatwhile the Tribunal had the jurisdiction to allocate the water to the States,the States are to be allowed to utilise such water in manner that theyFdeemed fit and that the Tribunal could not dictate as to how the Statesused such water. Next, he argued that in the present case, trans-basindiversion is essential to ensure the most economical way of utilizing theriver’s water and that basin State must have full freedom to utilise thewaters which it is entitled to. He further argued that the Tribunal had

allowed water projects to come up in Tamil Nadu and Karnataka whichGhave actually diverted water from the Cauvery basin but in Kerala’scase, where there was an urgent and pressing need for such projects,the Tribunal has rejected Kerala’s proposals. Finally, he argued that therights in interstate river waters belonged to the inhabitants of the basinState and not to the inhabitants of the basin itself.H

347. He argued that the Tribunal has erroneously omitted toaccount for 20TMC of ground water which was available in Tamil Nadu.Tamil Nadu had access to ground water resources while Kerala did notas set out in the report of the Cauvery Fact Finding Committee. He alsoargued that the Tribunal has failed to account for the hydrology of thebasin, particularly the contribution of water by each basin State. TheTribunal ought to have allocated appropriate volume of water for Kerala’sBanasurasagar project, the Mananthody Scheme and Kerala BhavaniScheme, apart from other water projects being developed in the State.348. He also challenged the Tribunal’s decision to make Keralaadopt single-crop paddy. He argued that Tamil Nadu and Puducherryhad been allocated water for three-crop paddy as also for dry irrigatedcrops, whereas Kerala’s farmers had been barred from cultivating theircrops in their traditional manner. He argued that the Tribunal’s decisionis contrary to the prevailing geological, geomorphological, climatic andsoil patterns prevalent in the State and also erroneous in restricting Keralafrom optimal cropping patterns. Combined with the Tribunal’s decisionto restrict all lift irrigation schemes, the Tribunal’s decision left Keralawith limited cultivation.

349. He has further submitted that Tamil Nadu has beenintentionally obstructing Kerala from setting up water projects as it wasbenefitting from the transitional provisions in the Tribunal’s award. Hesubmitted that pending the completion of its water projects, Kerala wasunable to retain the full amount of 30TMC water allocated to it. TheTribunal has directed Kerala to release water in excess of 30TMC toKarnataka and Tamil Nadu until it is capable of utilizing the full capacity.To benefit from this transitional provision, Tamil Nadu has purposelybeen impeding Kerala’s water projects.

350. He submitted that the Tribunal has failed to make provisionsfor surplus water, restricting Kerala’s water allocation to 30 TMC ayear in case of surplus. This would benefit the other States due to lackof specific provision for sharing surplus water with Kerala. He alsosubmitted that Tamil Nadu is responsible for wasting large amounts ofwater and that the Tribunal has failed to rectify the situation. He alsosubmitted that Kerala ought to be compensated for the water suppliedfrom its Siruvani reservoir to Coimbatore. He referred to the judgmentsof in In Re: Presidential Reference (Cauvery Water DisputesTribunal) (supra) and Tamil Nadu Cauvery Neerppasana

AVilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v.Union of India and others[48] while making his submissions.V. Submissions urged on behalf of Union Territory of Puducherry

351. Mr. Nambiar, learned senior counsel appearing for the UnionTerritory of Puducherry, submitted that Puducherry had claimed 9 TMCBof water for its needs whereas the Tribunal had allocated only 7 TMC ofwater to it. Puducherry was now seeking only an additional 1 TMC ofwater to be allocated to it from the month of June onwards which couldeither be released by Tamil Nadu or be allocated to Puducherry out ofthe 10 TMC reserved by the Tribunal for environmental purposes.

C352. He submitted that Puducherry’s topography, soil and climaticconditions favoured cultivation of only paddy crop and that no other cropcould survive in the heavy clay prevalent in the region’s soil. Further, thetopography in the region being plain and monotonous, there was no scopefor putting up storage structures for holding water and Puducherry wascompletely dependent on the water released by Mettur dam. He submittedDthat Puducherry has 27,000 acres of cultivable area which has remainedstatic over the years and that there is no scope for increase of sucharea. He also submitted that the rainfall in the region is erratic comingprimarily from the North-East monsoons. This resulted in heavy burstsof rain with long, dry spells. Such sudden and heavy influx of waterEdamaged the standing crops and flowed into the sea since there is nofacility capable of storing such water. Thus, Puducherry’s only reliablesource of water is from the Mettur Dam. However, water releasedfrom the Mettur Dam is sometimes insufficient for Puducherry’s needsand is incapable of irrigating Puducherry’s entire paddy crop.F353. He then submitted that there is no extractable ground waterin the region due to the intrusion of saline water from the neighbouringBay of Bengal. He submitted that saline water has intruded 6 kilometresinto the land along the river channels and has rendered wells and shallowaquifers unusable for irrigation and domestic needs. In light of this, hesubmitted that ground water could not be taken into consideration whileGallocating river water. He also argued that the Tribunal’s scope ofadjudication is limited to inter-State river water and that ground watercould not be treated as river water. While the Berlin Rules set out thatriver water included groundwater, no such definition is available either inthe Constitution or any other Indian law.H48 1990 (3) SCC 440

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

354. He also submitted the cropping pattern in Puducherryrequired higher allocation of water. He submitted that Kuruvai crop isgrown between July and September after which Thaladi crop is grownon the same land and then the Samba crop is grown. He submitted thatthe Kuruvai and Samba crop could only be planted after flushing off the salton the land. This flushing required around 0.5TMC of water before plantingthe crop in June. The Tribunal, however, erroneously directed Puducherryto obtain the requisite water from rainwater, the supply of which wasnot only erratic but also primarily occurring from October onwards.

355. He submitted that despite the Tribunal having allocated7TMC of water to Puducherry, such volume is not being made availableto it. He submitted that since Puducherry does not have adequate storagecapacity, such volume of water ought to be made available by TamilNadu at the border.

356. He argued that Puducherry has not filed an appeal underArticle 136 of the Constitution against the Tribunal’s final order as it is ofthe opinion that this Court could not entertain such an appeal against thefinal order. Hence, Puducherry had filed an application under Section5(3) of the 1956 Act instead, which is pending. He argued that since thisCourt is hearing the matter finally, Puducherry’s application under Section5(3) ought to be considered by this Court.

357. He also submitted that the waters of the Cauvery ought tobe free-flowing for effective utilisation and in the light of the same,Karnataka ought not to be allowed to build any further structures toimpede/obstruct such flow.

W. Arguments on behalf of Union of India

358. Mr. Ranjit Kumar, the learned Solicitor General of India,contended that the purpose of enacting the 1956 Act is to provide amechanism for adjudication of water disputes arising among the variousStates and that it is complete code in itself. He took this Court throughvarious sections of the Act to buttress his argument that con-jointreading of Sections 4, 6, 6A and 11 provides for the constitution of aTribunal to hear water disputes, the power to make scheme toimplement the decision of the Tribunal and further there is constitutionalbar on the jurisdiction of this Court and other courts in respect of suchwater disputes. Such extensive provisions highlight that the Act is acomplete code in itself.

A359. He submitted that as per the provisions of the Act, once theTribunal’s award has been published in the Official Gazette, the same isfinal and the mechanism for implementation of this award is set out inSection 6A of the Act and empowers the Central Government to makeschemes to implement the said award. Such scheme had to be tabledbefore both Houses of the Parliament. The Central Government is alsoBempowered to decide the jurisdiction and powers of the Authorityestablished to implement the Tribunal’s award. As contrasted with theprovisions of the Consumer Protection Act which allowed for theConsumer Forum’s order to be sent to civil court for execution in casethe Forum was unable to execute it, the provisions of the 1956 Act onlyCallows for the award of the Tribunal to be treated as decree of thisCourt and be implemented by virtue of Central Government scheme.

360. It is submitted by Mr. Ranjit Kumar, learned Solicitor Generalappearing for the Union of India, that the word used “may” instead of“shall” has purpose because in certain situations there may be noDnecessity to frame scheme for implementation of the awards passedby the Tribunal. He has apprised us that awards were passed by theKrishna Water Disputes Tribunal, Godavari Water Disputes Tribunal andNarmada Water Disputes Tribunal and scheme for implementation ofaward was framed when required and only in the case of NarmadaWater Disputes Tribunal and no scheme was framed in respect of awardsEpassed by the other Tribunals. According to him, framing of scheme isnot mandatory and the Central Government being alive to its role shalldo the needful at the relevant time. It is further argued that it is themandate of the 1956 Act that the scheme framed under Section 6A is tobe by laying before both Houses of the Parliament and, hence, it has toFbe treated as legislative policy and, therefore, the Court, in such asituation, should not issue any direction. He has drawn inspiration fromthe authorities in Atlas Cycle Industries Ltd. and others v. State ofHaryana[49], Common Cause v. Union of India and others[50], K.T.Plantation Private Limited and another v. State of Karnataka[51] and

Accountant General, State of Madhya Pradesh v. S.K. Dubey andGanother[52]. Learned Solicitor General has also referred to Craies onStatute Law Interpretation which has been noticed with approval in

49 (1979) 2 SCC 19650 (2003) 8 SCC 25051 (2011) 9 SCC 1H52 (2012) 4 SCC 578

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

Hukum Chand v. Union of India[53]which speaks that there are threekinds of laying, namely, (i) laying without further procedure; (ii) layingsubject to negative resolution; and (iii) laying subject to affirmativeresolution. Emphasizing on “subject to affirmative resolution”, learnedSolicitor General would contend that Section 6(7) essentially commandsthat this Court should not issue mandamus to the executive to enact aparticular law in particular manner at particular time or stipulatedtime frame. He would further urge that Section 6A is complete code initself and, therefore, this Court should leave it to the discretion of theCentral Government.

361. In oppugnation to propositions put forth by the learnedSolicitor General, learned counsel for the other States and the seniorcounsel for the Union Territory of Puducherry submitted that Section6A does not confer any extraordinary power on the Union of India exceptthat it has the authority to frame scheme singularly for implementationof the award as passed by the Tribunal or if modified by this Court. Thefurther submission is that the formulation of the scheme and otherprocedural ancillaries do not confer any greater status on the authoritiescoming into existence under the scheme.

X. Our findings on issues of allocation

X.1 Principles of apportionment to be followed:

362. Having dealt with the issues of paramountcy, perceivedunconscionability of the Agreements, continuation thereof after cominginto force of the 1956 Act as well as non-maintainability of the disputeon the basis of such Agreements being in infraction of Article 363, it isnow essential at this juncture, in the backdrop of the above contentiousassertions, to dwell on the principles of allocation of water of the inter-state Cauvery river and the make-up thereof for uniform application.That apart, the fact of the Agreement of 1924 having expired after 50years in the year 1974 has been already determined. As rightly minutedby the Tribunal, having regard to the progression of events after theexecution of the said Agreement, the accusations of breach and violationsof the Agreement have to be treated as inconsequential at this distantpoint of time. Besides, there is no objective and judicially manageablestandard to examine and evaluate the same in golden scale or embarkupon in an exercise of exactitude and precision to weigh the impactthereof for determination of allocation of the share.53 (1972) 2 SCC 601

EFG

A363. As enunciated by this Court in In Re: PresidentialReference (Cauvery Water Disputes Tribunal) (supra), the waters ofan inter-State river passing through the corridors of the riparian Statesconstitute national asset and cannot be said to be located in any oneState. Being in state of flow, no State can claim exclusive ownershipof such waters or assert prescriptive right so as to deprive the otherBStates of their equitable share. It has been propounded therein that theright to flowing water is well-settled to be right incident to property inthe land and is right publici juris of such character, that while it iscommon and equal to all through whose land it runs and no one canobstruct or divert it, yet as one of the beneficial gifts of Nature, eachCbeneficiary has right to just and reasonable use of it. We endorse theview of the Tribunal in the attendant perspectives that the acknowledgedprinciple of distribution and allocation of waters between the riparianStates has to be done on the basis of their equitable share, howevercontingent on the facts of each case.D364. For the sake of brevity, we do not intend to dilate anew onthe judicial precedents on this aspect of sharing of water of inter-stateriver and the evolution and/or shift of the principles relatable theretofrom the “Harmon Doctrine” to that of equitable apportionment, aprescript internationally recognized and being applied in resolution ofdisputes pertaining thereto. This principle of equitable apportionment asEis now intrinsically embedded generally in pursuit for apportionment ofwater of an international drainage basin straddling over two or moreStates predicates that every riparian State is entitled to fair share ofthe water according to its need, imbued with the philosophy that riverhas been provided by nature for the common benefit of the community

Fas whole through whose territory it flows even though those territoriesmay be divided by frontiers as postulated in law. With reference, inparticular, to the Helsinki Rules of 1966, it has been expoundedhereinbefore that Articles IV and V thereof recognize equitable use ofwater by each basin State, setting out the factors, not exhaustive though,to be collectively taken into consideration as whole. The view that theGprinciple of equality does not imply equal division of water but connotesequal consideration and equal economic opportunity of the co-basin Statesand that justice ought to be done to them, has been emphasized in thecourse of the arguments. To conceive that equality rests on equal sharingof water within an arithmetical formula, would be fundamentally violativeHof the established conception of equitable apportionment because the

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

said concept inheres multiple factors. It is the obligation of the Tribunalto address the same and the duty of this Court is to adjudge within thepermissible parameters of the justification of the said adjudication. Toreiterate, having regard to the above propositions as well as the provisionsof the 1956 Act, the dissension has to be addressed in the backdrop ofequal Status of the States and the doctrine of equitability.

365. Though noticed in the passing hereinbefore, the prevalentrules as guiding precepts to endeavour equitable apportionment of watersof an international drainage basin and conceptually extendable to aninter-state river deserve somewhat detailed scrutiny.

366. There is no quarrel that the Helsinki Rules on the use ofwaters of international rivers lack statutory status of binding nature, yetthe same, having been adopted by the International Law Association inits Conference held at Helsinki in August, 1966, set down the criteria todetermine equitable utilization of waters of an international drainage basin.As the relevant portion thereof has been extracted before it is notnecessary to reproduce the same. However, suffice it to refer to therelevant clauses for the present purpose. The statement in Article I thatthe general rules of International Law, as contained in the Chapterscomprising the Rules, are applicable to the use of the waters of aninternational drainage basin except as may be provided otherwise byconvention, agreement or binding custom among the basin States, atteststhe non-statutory character thereof. Article II defines internationaldrainage basin to be geographical area extending over two or morestates determined by the watershed limits of the system of waters,including surface and underground waters, flowing into commonterminus. The idea of international drainage basin per se inherits someidentifiable flexibility of the basin vis-a-vis the constituent states,separated by watershed limits of the system of waters so much so thatin an exigent fact situation the basin need not be rigorously confined tothe area immediately abutting it in given state but depending on thesituational topography may include other areas of the state concernedentitled to the benefit of the basin. The perception of “basin state” asexplicated in Article III is state, the territory of which includes portionof an international drainage basin and projects it to be single synthesizedterritorial component. As per Article IV, under Chapter II of the Rules,each basin state is entitled, within its territory, to reasonable andequitable share in the beneficial uses of the waters of an international

Adrainage basin. Article V enumerates the relevant factors, not exhaustiveor limited thereto, to determine the reasonable and equitable share withinthe meaning of Article IV. These factors being unavoidably required tobe extracted, are quoted hereinbelow:-

“1. The geography of the basin, including in particular the extentBof the drainage area in the territory of each basin state;

2.The hydrology of the basin, including in particular thecontribution of water by each basin state;

3.The climate affecting the basin;

C4.The past utilization of the waters of the basin, including inparticular existing utilization;

5.The economic and social needs of each basin state;

6.The population dependent on the waters of the basin in eachbasin state;D7.The comparative costs of alternative means of satisfying theeconomic and social needs of each basin state;

8.The availability of other resources;

9.The avoidance of unnecessary waste in the utilization ofEwaters of the basin;

10. The practicability of compensation to one or more of the co-basin States as means of adjusting conflicts among uses; and

11. The degree to which the needs of basin State may besatisfied, without causing substantial injury to co-basin state.”

[Emphasis supplied]

367. Article V explicates in clear terms that the weight to begiven to each factor as above is to be determined by its importance incomparison with that of other relevant factors, but in determining whatis reasonable and equitable share, all relevant factors are to be consideredGtogether and the conclusion has to be reached on the basis of the whole.The above factors, although not exhaustive, have been construed to beof significant bearing to ascertain the reasonable and equitable share ofwaters in an international drainage basin. The said principles can beregarded as functional dynamics while equitable distributing the water inHan inter-State river disputes. The salient feature of all these factors has

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

to have inherent variability and inevitable flexibility thereof having regardto the local conditions, for it is difficult to ignore the undeniable andcommon emphasis necessary to ensure beneficial use of the availableresources for basin state and logically for its dependent populacewarranted by the economic and social needs. Be it stated, whiledetermining the said needs, amongst others, past and existing utilizationof the water have to be borne in mind. To remain oblivious to the samewould amount to playing possum with the doctrine of equitable distributionin praesenti. The noticeable quintessence of the determinants is thepredication for delicate balance in adjustments of the needs based onrealistic, reasonable, judicious and equitable canons so much so that whilesatisfying the requirements of basin state, co-basin state is notsubjected to any substantial injury. Though in terms of Articles VI andVII, any other category of users is not entitled to any inherent preferenceover any other use or category of users, yet the precedence of an existingreasonable use of basin state over proposed future use of co-basinstate has been recognized. Significantly, in terms of Article VIII, anexisting reasonable use may continue in operation, unless the factorsjustifying its continuance are outweighed by other factors leading to theconclusion that it be modified or terminated so as to accommodate acompeting incompatible use clearly signifying that an existing use is alsonot absolute in terms and is subject to exigency based adjustments.

368. Substantially on the same lines is the Campione Consolidationof ILA Rules on International Water Resources 1966-1999 (hereinafterto be referred to as the “Campione Rules”). The distinguishing attributeof these Rules is the inclusion of water of an aquifer, i.e., undergroundwater or “fossil waters” intercepted by the boundary between the twoor more states as international ground water so much so that it wouldform an international basin or part thereof qua the relevant factors todetermine reasonable equitable share. These Rules include the criterionof interdependence of underground waters and other waters, includingany interconnections between aquifers and any leaching into aquiferscaused by activities in areas under the jurisdiction of the basin states.

369. The next in line, before adverting to the National Water Policyof 1987 and 2002, is another set of rules on international drainage basincalled the Berlin Rules adopted by the International Law Association inits Berlin Conference in the year 2004. On the aspect of equitableutilization, Article 12 thereof provides that basin states would in their

Arespective territories manage the waters of an international drainagebasin in an equitable and reasonable manner, having due regard for theobligation not to cause significant harm to other basin states and inparticular, the basin states, would develop and use the waters of thebasin in order to attain optimal and sustainable use thereof. The interestof the other basin states are to be kept in view.B

370. Article 13 of the Rules catalogues as well the relevant factorsto determine the equitable and reasonable use of basin state. Whilereiterating in essence the Rules as prescribed by the Helsinki Rules, theadditional aspect to be considered is minimization of environmental harm.Article 14 of these Rules stipulates that in determining an equitable andCreasonable use, the states shall first allocate waters to satisfy vital humanneeds and that no other use or category of uses shall have an inherentpreference over any other use or category of uses. Article 17 postulatesthat every individual has right of access to sufficient, safe, acceptable,physically accessible and affordable water to meet his vital human needsDand it is the obligation of the States to ensure the implementation of rightof access to water on non-discriminatory basis.

371. The common thread decipherable from these Rules is theuniversal acknowledgment of the principle of equitable utilization as aneffective and workable tool for the management of waters of anEinternational drainage basin.

372. Presently, we shall refer to the National Water Policy which,in our estimate, occupies an extremely significant space to spearheadthe planning and development of water resources. In its 1987 version, itsounded threshold caveat that water is prime natural resource, aFbasic human need and precious national asset. While emphasizing thatthis resource is one of the most crucial elements in development planning,the policy announced that it is scarce and precious national asset to beplanned, developed and conserved on an integrated environmentally soundbasis, keeping in view the needs of the States concerned. It underlinedthat resource planning in the case of water has to be done for aGhydrological unit such as drainage basin as whole or for sub-basinand that all individual developmental projects and proposals should beformulated by the States and considered within the framework of suchan overall plan for basin or sub-basin so that the best possiblecombination of options can be made.

373. As is manifest from the policy, it enjoined that water shouldbe made available to water deficient areas by transfer from other areasincluding transfers from one river basin to another based on nationalperspectives after taking into account the requirements of the areas/basins. That apart, making provision for drinking water should be aprimary consideration which was also highlighted. As regards the groundwater resources, it was marked that exploitation thereof should be soregulated as not to exceed the recharging possibilities as also to ensuresocial equity and to prevent ingress of sea water into sweet water aquifers.In the realm of planning and operation of systems, water allocationpriorities were broadly outlined as (a) drinking water, (b) irrigation, (c)hydropower, (d) navigation and (e) industrial and other uses.374. As far as the allocation is concerned, the uses are to begoverned by the rider that these priorities must be modified, if necessary,in particular region with reference to area specific considerations. Inconclusion, the policy laid stress that in view of vital importance of waterfor human and animal life, for maintaining ecological balance and foreconomic and developmental activities of all kinds and considering itsincreasing scarcity, the planning and management of this resource andits optimal, economical and equitable use has become matter of utmosturgency. It emphasized that the success of the National Water Policywould depend entirely on the development and maintenance of nationalconsensus and commitments to its underlying principles and objectives.Significantly, the Policy, which is national charter for Planning andDevelopment of Water Resources for its disciplined and judiciousutilization recognizes and accepts it to be scarce and valuable bounty ofnature to be developed, conserved and put to planned use on anenvironmentally sound basis with due regard to the needs of the Stateconcerned. The Policy, thus, sustains the concept of basin state ascontemplated in the Helsinki Rules, Campione Rules and Berlin Rules.

375. It is worthy to note that it significantly underlines that waterstarved areas ought to be serviced by transfer from one river basin toanother based on national perspective after taking into account the needsof such areas/basins. Drinking water has been assigned the highestpriority in the category of uses. Though use of ground water resourceshas not been wholly debarred, yet regulated exploitation thereof, not inexcess of recharging possibilities, has been highlighted.

A376. The National Water Policy of 2002 which is revised andupdated form of the earlier model, reiterates the emphasis on the needfor planning, development and management of the water resources fromthe national stand point. Pertaining to water allocation priorities, this Policyadded to the list, in particular, ecology and agro industries and non-agricultural industries, qualifying that the priorities as enumerated couldBbe modified or added if warranted by the specific considerations of theareas/regions. The primacy of drinking water was reiterated. On theaspect of ground water development, it was stated that periodical re-assessment of the ground water potential on the scientific basis shouldbe made taking into consideration the quality of water available and theCeconomic viability of its extraction. Same caution against over exploitationof ground water was sounded. It was, inter alia, mandated that adequatesafe drinking water facility should be provided to the entire population,both in urban and in rural areas, and irrigation and multipurpose projectsshould invariably include in it drinking water component wherever thereis no alternative source of drinking water. It was clarified that drinkingDwater needs of human beings and animals should be the first charge onany available water. Qua irrigation, the Policy stated that planning eitherin an individual project or in basin as whole should take into accountthe irrigability of land, cost effective irrigation options possible from allavailable sources of water and appropriate irrigation techniques forEoptimising water use efficiency. The aspect that the irrigation intensityshould be such as to extend the benefits of irrigation to large numberof farm families as much as possible, keeping in view the need tomaximize production, was also underlined. It was most importantlyprovided that water sharing/distribution amongst the States should beguided by national perspective with due regard to the availability of waterFresources and the needs within the river basin. The Policy, therefore, didnot bar as such the sharing or allocation of water in areas within thebasin state. In conclusion, the Policy recorded that its success woulddepend entirely on evolving and maintaining national consensus andcommitment to its underlying principles and objectives. It also laid emphasisGon the needs of the community that requires to be taken into account forthe development and management water resources.

377. The national policies of the country as above, therefore,evidently supplement and consolidate the prescriptions of the HelsinkiRules, Campione Rules and Berlin Rules in the matter of ascertainmentHof reasonable and equitable share of water in an inter-state river. To

reiterate, the Helsinki Rules and the other Rules envisage basin stateon the issue of equitable apportionment of an inter-State river. Thoughthe Rules predicate that in determining the share of one basin state, theother co-basin states would not be subjected to substantial injury, yet theclear emphasis is to fulfill the economic and social needs of the populationof the State and in the sphere of irrigation, its farmer community.Indubitably, the principle of apportionment would apply uniformly to allriver basins in State. The sharing of an inter-state river, as the professednorms of distribution suggest, has to be with the spirit of harmoniousdisposition and equanimous dispensation. The norms or the factorssuggested, understandably, can never be exhaustive and designed only abalanced framework of pragmatic measures to ensure beneficial use ofwater resources in an inter-State river on need-based application thereofand reciprocal adjustments for common good. In the regime of welfarestate wedded to the guarantees enshrined in the National Charter, anyyardstick for distribution of any national asset like water would have tobe essentially in furtherance thereof. The criteria identified in the Rulesand supplemented by the national policies in letter and spirit, though inquite detail, can only be construed as illustrative and cannot be perceivedas strait-jacket formula or put in compartment of mathematicalexactitude to exclude any other consideration or exigency to effect adesirable apportionment of water of an inter-state river depending onthe prevalent eventualities. Having regard to the geographic, hydrographic,hydrological, hydrogeological, climatic, ecological and other fluvialphenomena attendant on time, the spectrum of priorities and the factorsassociated therewith are bound to vary. Be it clearly stated that while noprecise formula can be adopted, there has to be sincere and pragmaticendeavour to have rational amalgam of globally accepted norms andthe local necessities founded on the doctrine of fairness and equity. Thefactors already enumerated, needless to say, may inter se demandprecedence of one over the other depending on the ground realities, theultimate test being to ensure that the allocations on the basis thereof infavour of one basin State ought not to be substantially detrimental to theco-basin States. The order of precedence in the areas of necessity, asset out in the National Policy, is not incompatible with the acknowledgeddeterminants for ascertaining the reasonable and equitable share of aninter-State river. Nevertheless, the weightage of one item of need woulddepend in given situation on the degree and priority thereof therebynecessitating grant of preference of one over the other in departure of

ABCDEFG

Athe sequence set out in the policy. This again is to underline the attributeof variability in the approach of application of the otherwise identifiedcriteria, the ultimate goal being equitable apportionment of the resources.This concept gains more significance where the resource is scarce andinadequate qua the demand thereof. It is warrantable as the disputeinvolves the inhabitants of one State with the inhabitants of another State.BSuch involvement by statutory command engulfs the principle of obtainingsituational adjustment having due regard to priority. In the abovepredominant conspectus, in our estimate, the factors as set out in theHelsinki Rules and endorsed as well as supplemented by the CampioneRules and the Berlin Rules and further consolidated by our national policiesCas above are efficient, rational, objective and pragmatic guidelines toconduct any exercise for determining the reasonable and equitable shareof basin States in the water of an inter-state river like Cauvery as in thepresent case.378. With these guidelines at disposal, the endeavour has to beDessentially to ensure an appropriate balance of the genuine competingdemands and interests of the basin States. The balancing has to be donein pragmatic and feasible manner so that it will be ultimately functionaland meet the aspirations of the riparian States. In such working process,there has to be adjustment of the available resources. That apart, theprocess indeed has to be informed with egalitarian vision for achievingEutilitarian ends keeping in view the inclusive spirit and the pluralisticethos. Thus viewed and understood, periodical reviews to update theallocations merited by changes in the aforementioned natural andenvironmental phenomena bearing on the resources for supply andresultant reorientation of the inter se needs of the basin States, wouldFhave to be unfailingly undertaken on time.

379. It needs to be stated that the gravamen of the rival assertionsspan from wrong application of the principles of equitable apportionmentto the facts of the case, defective assessment of the materials on recordbearing on the requirements registered by the competing States, faultyGapproach in the matter of evaluation of the parameters bearing inparticular on the crop water requirement, ground water availability anduse and unmerited rejection of various projects as testimony of rightfulclaims to resultant inaccurate allocation of the water of the inter-stateriver involved. As detailed hereinbefore, the impugned decision of theTribunal would demonstrate that it had undertaken detailed exerciseH

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

on the basis of the pleadings of the parties, the evidence, oral anddocumentary, including several contemporary official records andstatistics supplemented by the testimony of various acclaimed experts inthe field of water research and use over the years. Having regard to thejurisdiction being exercised, we would, in this factual backdrop, test thecompeting contentions on the basis of broad features of the controversyand the established legal postulates applicable thereto and interfere inthe event of any discernible vitiating infirmity, incurably afflicting theadjudicative pursuit of the Tribunal thereby rendering its appraisal of thematerials on record on any issue as well as the final determination to bepatently unsustainable.

X.2 Determination of ‘irrigated areas” in Tamil Nadu andKarnataka:

380. As we notice, the Tribunal, after adopting the principle ofequitable apportionment, in the process of computing the reasonable andequitable shares of the basin States as the first initiative, determined theirrigated areas of the States and in doing so, noted from the report of theCauvery Fact Finding Committee submitted in the year 1972 that theutilization of waters of Tamil Nadu including Karaikal region of the UnionTerritory of Puducherry, Mysore and Kerala had been 566.60 TMC,176.82 TMC and 5 TMC respectively. As the background of theAgreements of 1892 and 1924 would reveal, the State of Karnataka hadbeen raising persistent protests against the restraints put on it on the useof the waters of the river for which it alleged that it was not possible onits part to irrigate lands even as envisaged in the Agreement of 1924.This was clearly by way of its remonstrance against Tamil Nadu’sendeavours to wrest its dominion over the water by exercising itsprescriptive right to the natural flow thereof within its territories.Noticeably, the principle of equitable apportionment, as has evolved overthe time, has not been and rightly not disputed by the party-States as theyardstick for the allocation in praesenti. In view of the fact that riverCauvery is deficit in its water content compared to the demands of theriparian States involved, restrictions and savings in the matter of usethereof are not only necessary but also natural corollaries. In that viewof the matter, it is incumbent to identify the areas under irrigation withthe expansion thereof with time, together with the crop pattern and thesuitability thereof, having regard to the extent of utilization of the deficientsurface flow available. On the basis of the reports of the various

ACommittees and the recorded data referred to hereinabove, the bearingof the 1924 Agreement in particular over the march of events cannotalso be totally disregarded. The Tribunal, after taking into account allthese factors, vis-a-vis Tamil Nadu, applied the restrictions to work outthe irrigated area to which it would be entitled to assert its share ofallocation, namely, no area for summer paddy; area of summer paddyBraised prior to 1924 to be replaced by semi-dry crop; annual intensity ofirrigation to be restricted to 100%; cropping period to be restricted withinthe irrigated season, i.e., 31[st] June to 31[st] January and ambitious liftirrigation schemes to be discouraged. It, thus, quantified such area forTamil Nadu to be 24.71 lakh acres against its claim of 29.26 lakh acres.CAs far as Karnataka is concerned, the Tribunal noticed that in the pre1924 Agreement era, irrigation in the then State of Mysore was primarilyfrom direct diversion channels from the rivers together with the systemof tank irrigation and that in the absence of any reservoir, the waters ofCauvery and its tributaries like Kabini, Hemawathi, Harangi andSuvaranwathi used to flow through the State but their ultimate destinationDwas the Delta State of the then State of Madras as result whereof,even as admitted by the State of Tamil Nadu, Karnataka could developonly 3.14 lakh acres of land by 1924. This inability of the State ofKarnataka to develop its land for irrigation in the background of itspersistent cavil of being deprived of its legitimate share and use of theEwater of Cauvery cannot be ignored. It is recorded fact that thoughunder the 1924 Agreement, Karnataka in terms of the relevant provisionsthereof ought to have developed 7.45 lakh acres by 1974, it could achieveonly 2.15 lakh acres. However, the Tribunal in all allowed 18.85 lakhacres of area to Karnataka being under irrigation prior to 1974 againstits claim of 20.98 lakh acres. In case of Karnataka as well, the TribunalFexcluded the development of second crop in view of the scarcity ofwater in the basin with due regard to the rainfall pattern and evensuggested restrictions on the crop variety and the duration thereof. Onan overall consideration of the relevant materials to which our attentionhas been drawn, we are of the view that having regard to the imperativeGof economy of consumption of water, the approach of the Tribunal cannotbe found fault with having regard to the exiting situation

X.3 Assessment of water for “irrigation needs” in Tamil Naduand Karnataka:

381. We may analyse the present demand qua the assessment ofHcrop water requirement of the basin states, the relevant information of

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

which had been furnished by them in common format supplemented bythe oral testimony of experts and documentary evidence. They registeredtheir demand for allocation as hereinbelow:

Tamil Nadu – 566 TMC

Karnataka – 466 TMC

Kerala – 100 TMC

Union Territory of Pondicherry – 9 TMC

The Tribunal, to reiterate, to ensure equitable share to each State,applied the following criteria:

(i) Double crop only over areas before the Agreement of theyear 1924 and as permitted under the said Agreement andnot beyond.

(ii) Summer crop restricted in some areas where it was grownprior to 1924 Agreement which ought to be replaced byany light irrigated crop within the irrigation season.

(iii) Delta to be reduced in view of new variety of paddy anddeveloped techniques which require lesser Delta of water.

(iv) No transbasin diversion.

(v)No lift schemes.

382. As the records reveal, after the evidence of the expertwitnesses was recorded, as required by the Tribunal, the States filedtheir affidavits furnishing details of water requirements as well as thecrops grown by them together with an indication of minimum cropwater requirement. The affidavit filed on behalf of Tamil Nadu wasmarked as Ext. TN1665 and that of Karnataka as Ext. KAR518. Hence,we shall analyse the ultimate determination by the Tribunal and scrutinizeits ultimate justification. As has been noted earlier, there has been aconsiderable dispute over Ext.1665 and the area of dispute relates to theviolation of the principles of natural justice, non-providing of opportunityof cross-examination, admissibility of the affidavit in evidence and, aboveall, the transgression of the sense of propriety by the State of TamilNadu. We have already stated that what had already been available onrecord can be considered from the factual assertions of the affidavit. Bethat as it may, there has to be an adjudication by this Court and not allow

Athe main protagonist States to keep the fight in continuance. The Tribunal,as is demonstrable, on the basis of the overall materials before it, tooknote, amongst others, of the crop pattern, duration of the crops,consumption of water thereby, soil conditions conducive thereto, rainfallpattern, Delta and system efficiency along with the drought conditionsof Karnataka as projected by it, in conjunction with the testimony of theBexpert witnesses of both the States of Tamil Nadu and Karnataka, andin the interest of economical use of the water of the deficit basin, allocated250.62 TMC to Karnataka for its irrigated area of 18.85 lakh acres and390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh acres.Significantly, it is worthwhile to notice, in this context, theCrecommendations of the Cauvery Fact Finding Committee requiredrestriction on double crop paddy area; introduction of short duration varietyin place of “Samba” crop and preference to crops needing less water.Further, the Tribunal has considered the crop water requirement, namely,crop duration, ET crop, puddling requirements, percolation losses,effective rainfall and system efficiency. Keeping in view the acceptedDprinciples, we find that neither the analysis undertaken by the Tribunalnor the findings relatable thereto can be regarded as implausible by anystandard. Certain parameters have been exhaustively examined by theTribunal on the basis of the materials brought on record with supportingreasons and, therefore, the conclusion on this score cannot be termed asEuntenable warranting interference in the exercise of this Court’sjurisdiction under Article 136 of the Constitution of India. We may pausehere to clarify. In our first verdict that pertained to the delineation of themaintainability of appeals by special leave while holding the appeals tobe maintainable, we had kept it open for advertence at later stage theissue whether there should be broad approach or narrow one. AfterFhearing all the sides at length, at this juncture, we are inclined to say thatwhile adjudicating matter of such nature we cannot be totally guidedexclusively either by “broad” or extraordinary discretionary or “narrow”or restrictive approach but think it appropriate to have an intermediaryapproach as the controversy covers span of more than 100 yearsGinvolving change in boundaries, population growth and subsequent events.We may hasten to add that though the parameters of applicability ofArticle 136 can be broad to appreciate the materials and scrutinize themanner of appreciation by the Court/Tribunal depending upon the lisraised. In the present appeals preferred by special leave, we think itcondign to adopt an approach which is neither broad nor narrow but anH

“intermediary one”, especially having regard to the nature of the disputethat involves the inhabitants of three States and Union Territory.

383. In the realm of determination of irrigated area, the assessmentby the Tribunal, as we find, encapsules the factual and characteristicallycomplex situation. Lands have already been irrigated. It is an issue ofsustenance at the ground reality level. To reduce the allocation of wateron this core would be inequitable. Therefore, in the obtaining fact situation,in our comprehension, no interference is warranted. That apart, havingregard to the degree of wiredrawn complexities involved, requiring in-depth expertise to dislodge the otherwise well-reasoned findings of theTribunal founded on an exhaustive appreciation of the materials on record,we are not inclined to upset the determination made by it in this regard.On an overall scrutiny of the materials to which our attention had beendrawn, we are in general agreement with the approach and assessmentmade by the Tribunal and the deductions made by it on the basis thereof.Sans rhetoric and emotionally appealing submissions, we find that therival contentions are equally balanced and to reiterate, on an overallconsideration of the materials on record, we do not feel persuaded todiffer with the Tribunal’s adjudication.

X.4 Water allocation for the State of Kerala:

384. In respect of the claim of Kerala, it is matter of record thatrainfall is evenly distributed over the months of May to November somuch so that occasional support by artificial irrigation is required in theinstances of shortfall in rains and that too during small periods. Againstits demand of 99.8 TMC under different heads, it had demanded 35TMC for transbasin diversion to generate hydro-electrical power. TheTribunal rejected the State’s request for transbasin diversion for hydro-power projects which, in terms of the National Water Policy of 2002,was even otherwise lower in preference to drinking water and irrigation.The Tribunal in adjudging the State’s share did notice that it had beenunsuccessful in furthering its projects so much so that pending thecompletion and utilization thereof, the unutilized water allocated to itsubject to the mechanism set up by the Cauvery Management Board/Regulatory Authority, would be received by Tamil Nadu. The Tribunalexamined the information furnished by it in the common format andadjudged 29.76 TMC which was rounded upto 30 TMC as its shareafter due regard to its demand, amongst others, pertaining to differentprojects in Kabani, Bhavani, and Pambar basins having regard to their

Aindividual features and corresponding crop water requirement. Thisallocation included the share for domestic and industrial water purposesas well with the population projection for 2011. The findings of theTribunal are not belied by the materials in support thereof and, therefore,we are inclined to accept the same.

BX.5 Water allocation for the Union Territory of Puducherry:

385. With regard to the claim of Union Territory of Puducherryfor Karaikal region, it is matter of record that because of its closeproximity to the sea, the ground water by its nature is unsuitable fordrinking and irrigation purposes and, thus, the Tribunal having regard toCits irrigated area of 43000 acres allowed its second crop in departurefrom the yardstick applied for Karnataka and Tamil Nadu and granted6.35 TMC by way of crop water requirement. It also relieved the UnionTerritory of the application of 20% consumptive utility formula whileassessing its domestic and industrial water requirements. In the absenceof any convincing reason to determine otherwise, the adjudication of theDTribunal on this count does not deserve any interference.

X.6 Recognition of ground water as an additional source in TamilNadu:

386. While exploring the possibility of ground water as an additionalEsource to be conjunctively used along with the surface flow of riverCauvery, the factual matrix reveals, based on empirical data, that thecontributions thereto are from surface water through infiltration into theground by way of natural recharge, stream flow, lakes and reservoirs.The recharge of ground water is principally from rainfall as well asartificial modes, namely, application of water to irrigate crops, floodingFof areas caused by overflowing of streams to their sites and seepagefrom unlined canals, tanks and other sources. Ground water, as the studyby the Central Ground Water Board, Ministry of Water Resources,Government of India attests, caters to more than 45% of irrigation in thecountry. As against the stand of Tamil Nadu that the ground waterGwithin its Delta areas is mainly by way of recharge from the supplies ofMettur Dam which really is component of the surface flow of riverCauvery and further that the same is utilized by the farmers for raisingof early nurseries ahead of releases from Mettur and for irrigating belatedcrops after stoppage of Mettur releases, exhaustive studies undertaken,amongst others, by the Central Ground Water Board, Ministry of WaterHResources, Government of India, Irrigation Commission, 1972 and United

Nations Development Programme evidenced availability of replenishableground water in Tamil Nadu. The United Nations DevelopmentProgramme in its report, amongst others, mentioned that yearly quantityof ground water that can be extracted by using centrifugal pumps in theCauvery sub-basin, Vennar sub-basin and in the new Delta was 33.7TMC, 5.4 TMC and 32.5 TMC respectively and in addition 56.5 TMCof ground water per year can also be made available in the Cauverysub-basin by lowering seasonally ground water level to 10 meters depthbelow the regional ground water level. Other studies made by the teamof the Central Ground Water Board indicated ground water potential inthe Delta area of Tamil Nadu to the extent of 64 TMC. The report ofMr. W. Berber, Consultant, World Bank on Ground Water Resources ofCauvery Delta estimated the available ground water in Cauvery Deltaat 51.56 TMC. Apart from the above, Tamil Nadu, in its pleadings,admitted that the total ground water extraction during the year 1989 wasapproximately 28.4 TMC in the Cauvery sub-basin, 7.3 TMC in theVennar sub-basin and 11.3 TMC in the Grand Anicut Canal area (newDelta area) totaling 47 TMC. Tamil Nadu, in its pleadings, also mentionedthat in the old Delta, there was scope of conjunctive use of groundwater to the extent of 30 TMC. On the basis of these recorded andempirical inputs, the Tribunal returned finding that in normal yearwhen there would be regular releases of water from Mettur, the bulk ofcontribution to ground water in the Cauvery sub-basin would be fromsuch releases, but in any case, the contribution from surface irrigationand rainfall could by no means be overlooked. On weighing the pros andcons and having regard to the severe limitations in the mechanism forassessment of ground water resource, the Tribunal made an extremelysafe estimate of 20 TMC of ground water which, in its view, could beused by Tamil Nadu conjunctively with surface water. In categoricalterms, the Tribunal clarified that this quantum was arrived at afterexcluding the component of ground water recharge from river waterbilateral infiltration. In other words, the Tribunal estimated 20 TMC ofground water available in the State of Tamil Nadu which was independentof any contribution from the surface flow of the river Cauvery and, thus,could be construed to be stock available with it unconnected with theyield of 740 TMC otherwise quantified for allocation. It is in this contextthat the assertion made on behalf of Karnataka that ground water beinga renewable resource, if not extracted regularly, would reduce theabsorption capacity of the underlying aquifer resulting in rain water/

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Asurface water turning into wastage as run-off and that the admission ofTamil Nadu in its pleadings of availability of 30/47 TMC as ground waterwarranted reduction of at least 20 TMC, as estimated by the Tribunal,from the final allocated share of Tamil Nadu with proportionate reductionin the quantum of water to be provided by Karnataka at the inter-stateborder, assumes significance. In our view, having regard to theBoverwhelming empirical data following multiple research studies bydifferent authorities authenticating beyond doubt availability ofreplenishable ground water in the Delta areas of Tamil Nadu, 20 TMCof ground water quantified by the Tribunal is an eminently safe quantityto be accounted for in finally allocating/apportioning the share of CauveryCwater. While expressing this view, we are not unmindful of the stand ofTamil Nadu and the aspect that over-extraction of ground water in theabsence of adequate replenishment and further in the areas proximateto the coastal zone is generally avoidable. However, in the attendantfacts and circumstances, in view of the studied scrutiny of all pertinentfacets of the issue by balancing all factors, we are of the unhesitantDopinion that at least 10 TMC of ground water available in the Deltaareas of Tamil Nadu can be accounted for in finally determining theapportionment of the share of the otherwise deficit Cauvery basin withouttouching the yield of 740 TMC.

387. To recall, the national policies discussed above, do not, asEsuch, debar the conjunctive use of ground water, the only caveat beingperiodical assessment on scientific basis thereof and to guard againstexploitation of the said resource so as not to exceed the rechargingpossibilities. The series of research studies made by different authoritiesand the range of availability of ground water as indicated by the

Fexperimental data, in our view, not only demonstrate availability of groundwater in the Deltas in the State of Tamil Nadu but also that adjustmentof 10 TMC thereof, as proposed, would be safely permissible. Noticeably,the kind of experiment and research that had been made in the realm ofground water availability in the Deltas of Tamil Nadu has not beenundertaken in Karnataka and there is no reliable empirical data withGregard thereto vis-a-vis that State.

X.7 Water allocation for Domestic and Industrial purposes in TamilNadu:

388. With regard to the computation and allotment of water forHdomestic and industrial purposes in Tamil Nadu and Karnataka, we are

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

in agreement with the formulae noted and applied by the Tribunal inworking out the per capita daily requirements of the urban and ruralpopulation. There is also no reason to differ from the postulation withregard to the percentage of actual utilization qua various heads of uses,namely, irrigation, power, domestic and municipal water supply, industrialuse, etc., as referred to in the Report of the Cauvery Fact FindingCommittee which, for our immediate purposes, indicate that whereas20% of the quantity of water supplied would be actually consumed indomestic use, only 2.5% would be effectively utilized for industrial usewithin the basin and the rest would return to the source, i.e., river or itstributaries or the reservoir, storage and canal, as the case may be.

X.8 Water allocation for Domestic and Industrial purposes of State

of Karnataka:

389. As regards the grievance of the State of Karnataka thatwhile quantifying the allocation of water for domestic purposes, theTribunal had accounted for only 1/3[rd] of the city of Bengaluru to befalling within the river basin and had, as result, drastically cut down itsoverall share under this head. It is significant to notice that in its statementof case, Karnataka had registered its claim for water for domestic andindustrial uses as hereunder:-

Bangalore water supply – 30 TMC

Urban water supply (other than Bangalore) – 10 TMC

Rural water supply – 6 TMC

Industrial uses – 4 TMC

This along with its claim for irrigation - 408 TMC and for powerprojects (reservoir losses 6 TMC and Thermal Power Project - 1TMC) – totals to 465 TMC. Karnataka, therefore, registered claim of30 TMC only for the city of Bengaluru. The Tribunal, at the first instance,presumed that 50% of drinking water requirement would be met fromthe ground water sources as it is generally seen that wells and tube-wells in urban and rural areas cater to substantial requirement of drinkingwater. While noting that it had called for information in the commonformat whereby the States had been required to project their populationfor the year 2000 and 2025 for working out drinking water requirement,the Tribunal, however, decided to assess the drinking water requirementas in the year 2011. On the basis of the information available, it held that

Aonly 1/3[rd] of the Bengaluru city lay within the Cauvery basin as wasurged in the course of the arguments. It, therefore, limited its considerationof drinking water requirement of Bengaluru to that area only which waslocated within the Cauvery basin. It noticed that Karnataka had statedthat the existing and ongoing drinking water schemes for the city werefor 14.52 TMC in all as in June 1990 and also that it had claimed 30BTMC for Bengaluru city in its projection for 2025. The Tribunal, as isperceptible, was disposed to work out the water requirement for urbanand rural population on the basis of population projection of the basin forthe year 2011 by adopting the percentage decennial growth for the year1981-1991 census, district-wise and the area of each district falling withinCthe Cauvery basin as furnished by Karnataka. The population projectionof Bengaluru city on the Census Report of 2011, as furnished by TamilNadu, was taken note of as well. The Tribunal next quantified the waterrequirement of urban population to be 8.70 TMC and for rural populationat 8.52 TMC. The Tribunal, as consequence, proceeded to quantify

the total drinking water requirement for urban and rural population to beD17.22 TMC (8.70 TMC + 8.52 TMC). It next assumed that 50% of thedrinking water requirement would be met from ground water and theremaining 50% from the surface water. Thus, segregating 8.75 TMC tobe catered to by the surface water, it worked out the consumptive use,

i.e., 20% of the total for the human population including live stock to beE1.75 TMC (20% of 8.75 TMC).

390. Apart from the fact that there is no basis whatsoever for theTribunal for having quantified the water requirement for urban populationto be 8.70 TMC as well as for rural population to be 8.52 TMC, itsassumption that 50% thereof would be met from ground water only inFview of its perception that wells and tube-wells in urban and rural areascater to the substantial requirement of drinking water, in our view, isunacceptable and cannot be sustained. That apart, in the context ofBengaluru city, especially in view of the growth and rise of population inspace and time, the Tribunal’s approach of confining the entitlement ofits population in general to only 1/3[rd] of their requirement only in view ofGthe location of 1/3[rd] of its physical entity within the Cauvery basin demandsscrutiny. True it is, the concept of basin and the beneficial uses of thewater thereof ought to be traced generally to the sites and populationthereof located in the basin, nevertheless, the principles of apportionmentand the conception of reasonable and equitable share perceived for suchHuses comprehend basin State addressing the social and economic needsof its community as whole. Territorial or geographical demarcation forextension of beneficial uses of an inter-state river basin cannot alwaysbe strictly construed. We are inclined to think so as the perception of abasin State inheres in it degree of flexibility in approach in uniquefact situation to justify warrantable flexibility and departure from suchrigoristic approach. We are disposed to think so, for the city of Bengaluru,as an evident phenomenon, has burgeoned over the years and has growntoday into progressively sophisticated, sprawling, vibrant and muchaspired seat of intellectual excellence particularly in informationtechnology and commercial flourish. It has transformed into nervecentre of contemporaneous significance and its population is daily on therise, thus, registering an ever enhancing demand for all civic amenities.Having regard to its exclusive attributes, it is incomparable in many waysnot only to other urban areas in the State, but also beyond. Therequirements of its dependent population as whole for drinking andother domestic purposes, therefore, cannot justifiably, in the prevailingcircumstances, be truncated to their prejudice only for consideration ofits physical location in the context of the river basin. We think so sincethe city of Bengaluru cannot be segregated having an extricablecomposition and integrated whole for the purposes of the requirementsof its inhabitants, more particularly when the same relates to allocationof water for domestic purposes to meet their daily errands. It will beinconceivable to have an artificial boundary and deny the population theprimary need of drinking water. We hold so in the special features of thecase keeping in view the global status the city has attained and furtherappreciating the doctrine of equitable proportionality on the bedrock ofpressing human needs.

391. At this juncture, we need to recount that as per the nationalwater policies, not only drinking water has been placed at the top of theother requirements in the order of priority, but it has also been predicatedthat adequate drinking water facilitates should be provided to the entirepopulation, both in urban and rural areas and that drinking water shouldbe made primary consideration. It was declared as well that drinkingwater needs of human beings and animals should be the first charge onany available water. Article 14 of the Berlin Rules also mandates that indetermining an equitable and reasonable use, the States shall first allocatewater to satisfy vital human needs.

CDE

A392. In view of the above, we are constrained to observe that theapproach of the Tribunal cannot be approved in the facts andcircumstances indicated hereinabove. We are, thus, of the consideredopinion that the allocation of water for drinking and domestic purposesfor the entire city of Bengaluru has to be accounted for. Noticeably,Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing waterBschemes for Bengaluru and 8.00 TMC for the ongoing drinking waterschemes for the city as in June, 1990. It had demanded 30 TMC asdrinking water requirement for the city with the projection of 2025. Havingregard to the percentage of decennial growth, as has been adopted bythe Tribunal, in 2011, the demand of Karnataka for drinking waterCrequirement for Bengaluru city would be in the vicinity of 24 TMC.Even excluding the computation for urban population of the State to be8.70 TMC as arrived at by the Tribunal and that too without any basisand accepting the water requirement of rural population to be 8.52 TMCthough also without any basis, the total figure representing drinking anddomestic water requirement of the urban and rural population would beD32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimedby Karnataka in its statement. Having rejected the assumption that 50%of the drinking water requirement would be met from ground water, this33 TMC would, in our estimate, be safe and acceptable figure quadrinking and domestic water requirement of the State of Karnataka forEits urban and rural population. By applying the consumptive percentageof 20%, the volume of water to be allocated to Karnataka on this countwould be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increaseby 4.75 TMC.

393. Qua the view against transbasin diversion, suffice it to stateFthat not only in the context of Bengaluru city, for the reasons citedhereinabove, digression from the confines of the concept of in-riverbasin would be justified, since the National Water Policy of 1987, incategorical terms, enjoined that water should be made available to watershort areas by transfer from other areas including transfers from one

river basin to another. This very conspicuously emphasizes on an inclusiveGcomprehension and in deserving case like Bengaluru city, it would notbe incompatible with the letter and spirit of the factors that ought toinform the determination of reasonable and equitable share of water inan interstate river as well as of the national policies formulated forplanning and development of the precious natural resource involved.H

X.9 Allocation of water towards environmental protection:

394. On the aspect of allocation qua environmental protection,the Tribunal, in order to secure the purity of environmental and ecologicalregime in view of the injudicious use of available resources by humanbeings compounded by population explosion and distorted lifestyles andhaving regard to the spectre of river water pollution on account of industrialdevelopment and deforestation leading to siltation of reservoirs, etc.,assigned 10 TMC to be reserved from the common pool to meet theenvironmental aspects.

395. We appreciate the endeavour and the initiative of the Tribunalhaving regard to the sustenance of purity of environment to which everyindividual is entitled and also simultaneously obliged to contribute tocultivate the feeling of environmental morality. That is the constantneed of the present. In view of such an obtaining situation, we are notinclined to interfere in any manner in the allocation of the quantum of 10TMC towards environmental protection. It stands affirmed.

X.10 Revised water allocation amongst competing States:

396. The river Cauvery originates in Karnataka and eventuallyafter its full flow through the other riparian States of the basin assimilatesin the Bay of Bengal. With the evolution of the principle of equitableapportionment which is really to ensure equal justice to the basin States,the concept of prescriptive right or right to the natural flow of any inter-state river has ceased to exist. Having regard to the historical factswhich demonstrate the constraints suffered by Karnataka resulting in itslimited access and use of the surface flow of Cauvery in spite of beingthe upper riparian state, compared to Tamil Nadu, then Madras presidency,as well as severally drought conditions in its 28 districts/taluks, we areinclined to award an additional quantity of water to it in the measure of14.75 TMC in all, i.e., 10 TMC (on account of availability of groundwater in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposesincluding such need for the whole city of Bengaluru). On theseconsiderations, we consider Karnataka to be more deserving amongstthe competing States to be entitled thereto. Out of this, 14.75 TMCwould be deducted from the quantum allocated by the Tribunal in favourof Tamil Nadu. In other words, the final allocation of the shares in viewof this determination would be as hereunder:-

AKarnataka:284.75 (270 + 14.75) TMCTamil Nadu:404.25 (419 – 14.75) TMCKerala:30 TMCUT of Pondicherry:7 TMCBEnvironmental Protection:10 TMCInevitable escapagaes into sea:4 TMCTotal:740 TMC

397. As consequence of the aforesaid allocation, the State ofCKarnataka would now be required to make available at the interstateborder with Tamil Nadu, i.e., at Billigundulu, 177.25 TMC of water forthe basin. Apart from the modifications effected hereinabove, nointerference with the determination and findings recorded by the Tribunal,in view of the scrutiny of the available materials on record, is called for.

D398. At this stage, we may reproduce how the Tribunal has dealtwith monthly deliveries by the State of Karnataka which is as follows:-

“Since the major shareholders in the Cauvery waters are theStates of Karnataka and Tamil Nadu, we order the tentativemonthly deliveries during normal year to be made available byEthe State of Karnataka at the inter-State contact point presentlyidentified as Billigundulu gauge and discharge station located onthe common border as under:

The above quantum of 192 TMC of water comprises of 182TMC from the allocated share of Tamil Nadu and 10 TMC ofHwater allocated for environmental purposes.”

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

399. The Tribunal directed appointment of Regulatory Authorityto properly monitor the working of monthly schedule with the help of theconcerned States and Central Water Commission and further directedthat the upper riparian State shall not take any action so as to affect thescheduled deliveries of water to the lower riparian States. The otherdirections which had been issued by the Tribunal, we think it appropriateto reproduce, are as under:-

“Clause-XIV

Use of water shall be measured by the extent of its depletion ofthe waters of the river Cauvery including its tributaries in anymanner whatsoever; the depletion would also include theevaporation losses from the reservoirs. The storage in anyreservoir across any stream of the Cauvery river system exceptthe annual evaporation losses shall form part of the availablewater. The water diverted from any reservoir by State for itsown use during any water year shall be reckoned as use by thatState in that water year.

Clause-XV

In any riparian State or U.T. of Pondicherry is not able to makeuse of any portion of its allocated share during any month in aparticular water year and requests for its storage in the designatedreservoirs, it shall be at liberty to make use of its unutilized sharein any other subsequent month during the same water yearprovided this arrangement is approved by the implementingAuthority.

Clause-XVI

Inability of any State to make use of some portion of the waterallocated to it during any water year shall not constitute forfeitureor abandonment of its share of water in any subsequent wateryear nor shall it increase the share of other State in the subsequentyear if such State has used that water.

Clause XVIII

Nothing in the order of this Tribunal shall impair the right orpower or authority of any State to regulate within its boundaries

Athe use of water, or to enjoy the benefit of waters within thatState in manner not inconsistent with the order of this Tribunal.”

400. In view of the reduction in the quantum of water, nowrequired to be released by Karnataka at the inter-State border with TamilNadu, i.e., at Billigundulu, there would be, logically, proportionateBdecrease in the monthly releases as worked out by the Tribunal. However,the same pattern therefor, as modeled by it would be maintained for thereduced releases.

Y. Interpretation of Section 6A of the 1956 Act

401. Now we shall deal with the provisions of Section 6A of 1956CAct. It reads as under:-

“Section 6A. Power to make schemes to implementdecision of Tribunal.

(1) Without prejudice to the provisions of section 6, the CentralDGovernment may, by notification in the Official Gazette, frame ascheme or schemes whereby provision may be made for allmatters necessary to give effect to the decision of Tribunal.

(2) scheme framed under sub- section (1) may provide for—

(a) the establishment of any authority (whether described as suchEor as committee or other body) for the implementation of thedecision or directions of the Tribunal;

(b) the composition, jurisdiction, powers and functions of theauthority, the term of office and other conditions of service of,the procedure to be followed by, and the manner of fillingFvacancies among, the members of the authority;

(c) the holding of minimum number of meetings of the authorityevery year, the quorum for such meetings and the procedurethereat;

(d) the appointment of any standing, ad hoc or other committeesGby the authority;

(e) the employment of Secretary and other staff by the authority,the pay and allowances and other conditions of service of suchstaff;

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

(f) the constitution of fund by the authority, the amounts thatmay be credited to such fund and the expenses to which thefund may be applied;

(g) the form and the manner in which accounts shall be kept bythe authority;

(h) the submission of an annual report by the authority of itsactivities;

(i) the decisions of the authority which shall be subject to review;

(j) the constitution of committee for making such review andthe procedure to be followed by such committee; and

(k) any other matter which may be necessary or proper for theeffective implementation of the decision or directions of theTribunal.

(3) In making provision in any scheme framed under sub- section(1) for the establishment of an authority for giving effect to thedecision of Tribunal, the Central Government may, having regardto the nature of the jurisdiction, powers and functions required tobe vested in such authority in accordance with such decisionand all other relevant circumstances, declare in the said schemethat such authority shall, under the name specified in the saidscheme, have capacity to acquire, hold and dispose of property,enter into contracts, sue and be sued and do all such acts as maybe necessary for the proper exercise and discharge of itsjurisdiction, powers and functions.

(4) scheme may empower the authority to make, with theprevious approval of the Central Government, regulations forgiving effect to the purposes of the scheme.

(5) The Central Government may, by notification in the OfficialGazette, add to, amend, or vary, any scheme framed under sub-section (1).

(6) Every scheme framed under this section shall have effectnotwithstanding anything contained in any law for the time beingin force (other than this Act) or any instrument having effect byVirtue of any law other than this Act.

A(7) Every scheme and every regulation made under schemeshall be laid, as soon as may be after it is made, before eachHouse of Parliament, while it is in session, for total period ofthirty days which may be comprised in one session or in two ormore successive sessions, and if, before the expiry of the sessionimmediately following the session or the successive sessionsBaforesaid, both Houses agree in making any modification in thescheme or the regulation or both Houses agree that the schemeor the regulation should not be made, the scheme or the regulationshall thereafter have effect only in such modified form or be ofno effect, as the case may be; so, however, that any suchCmodification or annulment shall be without prejudice to the validityof anything previously done under that scheme or regulation.”

402. We have already noted the submissions of the learnedSolicitor General. His submission, in essentiality, is that the Court shouldnot issue any direction to the Central Government and allow the discretionDto be exercised by it as the provision uses the word may. The saidargument, as we perceive on first blush, may look quite attractive orfor while impressive but really cannot stand the substance test. InState of Karnataka (supra) while interpreting the said provision in thecontext of maintainability, we had held:-

E“….The learned Senior Counsel for the respondent has drawn adistinction between the conferment and the exclusion of the powerof the Supreme Court of India by the original Constitution andany exclusion by the constitutional amendment. Be that as itmay, the said aspect need not be adverted to, as we are onlyrequired to interpret Section 6(2) as it exists today on the statuteFbook. The said provision has been inserted to provide teeth tothe decision of the Tribunal after its publication in the OfficialGazette by the Central Government and this has been donekeeping in view the Sarkaria Commission’s Report on Centre-State Relations (1980). The relevant extract of the SarkariaGCommission’s Report reads as follows:

“17.4.19. The Act was amended in 1980 and Section 6-A wasinserted. This section provides for framing scheme for givingeffect to Tribunal’s award. The scheme, inter alia providesfor the establishment of the authority, its term of office andHother conditions of service, etc. But the mere creation of such

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

an agency will not be able to ensure implementation of aTribunal’s award. Any agency set up under Section 6-A cannotreally function without the cooperation of the States concerned.Further, to make Tribunal’s award binding and effectivelyenforceable, it should have the same force and sanction behindit as an order or decree of the Supreme Court. We recommendthat the Act should be suitably amended for this purpose.

17.6.05. The Inter-State Water Disputes Act, 1956 should beamended so that Tribunal’s award has the same force andsanction behind it as an order or decree of the Supreme Courtto make Tribunal’s award really binding.”

74. The Report of the Commission as the language would suggest,was to make the final decision of the Tribunal binding on boththe States and once it is treated as decree of this Court, then ithas the binding effect. It was suggested to make the awardeffectively enforceable. The language employed in Section 6(2)suggests that the decision of the Tribunal shall have the sameforce as the order or decree of this Court. There is distinctionbetween having the same force as an order or decree of thisCourt and passing of decree by this Court after due adjudication.Parliament has intentionally used the words from which it canbe construed that legal fiction is meant to serve the purposefor which the fiction has been created and not intended to travelbeyond it. The purpose is to have the binding effect of theTribunal’s award and the effectiveness of enforceability. Thus,it has to be narrowly construed regard being had to the purposeit is meant to serve.”

403. We have referred to the aforesaid passages as the award ofthe Tribunal has to be treated as decree of the Supreme Court. It is sostated in Section 6(2) to give teeth to the award passed by the Tribunalso that none of the States can raise objection to the same and be guidedby the directions of the Tribunal. The purpose of framing the scheme isexclusively for implementation of the award. The authorities cited byMr. Ranjit Kumar, we are afraid, are of no assistance in the presentcontext. It needs no special emphasis to state that the purpose of Section6A is to act in the manner in which the award determines the allocationand decides the dispute with regard to allocation or sharing of water.

AKeeping that in view, we direct that scheme shall be framed by theCentral Government within span of six weeks from today so that theauthorities under the scheme can see to it that the present decision whichhas modified the award passed by the Tribunal is smoothly madefunctional and the rights of the States as determined by us are appositelycarried out. When we say so, we also categorically convey that theBneed based monthly release has to be respected. It is hereby made clearthat no extension shall be granted for framing of the scheme on anyground.

Z. The conclusions in seriatim

C404. In view of our aforesaid analysis we record our conclusionsin seriatim:-

(i)After coming into force of the 1947 Act, the doctrine ofparamountcy has no room for application as the Governmentof India became the full sovereign authority. The twoDagreements of 1892 and 1924 had neither any politicalarrangement nor touched any facet of sovereignty of India.Per contra, the agreements cover the areas of larger publicinterest which do not have any political element and in thisbackdrop, the agreements are neither inoperative norcompletely extinct.E

(ii)The issues in this case have no connection, whatsoever,with the concepts of sovereignty and integrity of India and,therefore, the bar under Article 363 of the Constitution ofIndia is not attracted.

(iii)Even if we accept the contention that the State ofFKarnataka did not have any bargaining power at the timeof entering into the agreements, but, the State of Karnatakaacquired the said bargaining power after the 1947 Act, anddefinitely after coming into force the Constitution of India.Regardless of the same, the State of Karnataka chose notGto denounce the said agreements. Therefore, the saidagreements cannot be said to be unconscionable.

(iv)The newly formed States never belied the agreements of1892 and 1924 after the Reorganization Act, 1956. Ergo,both the agreements remained in force despite coming intoHeffect of the Reorganization Act, 1956.

(v)A scrutinized perusal of the 1924 Agreement reveals thatAthe said Agreement was never intended to be of permanentcharacter. On the contrary, it contemplated fixed term of50 years. Therefore, the said agreement expired after 50years in the year 1974.

(vi)The Tribunal in its approach primarily referred to HelsinkiRules, 1966 which rejected the Harmon doctrine and laidstress on equitable utilization of international rivers. Weare of the opinion that the Tribunal was correct in itsapproach. For determining reasonable and equitable shares,relevant factors have to be considered together, in reachinga conclusion. Keeping in view the various intricacies involvedin the case at hand and the duty ordained upon this Courtby the Constitution of India, the matter deserved to beadjudicated on the bedrock of equal status of the states anddoctrine of equitability. Resultantly, the submission that thecomplaint of the State of Tamil Nadu did not warrant anyadjudication, does not commend any acceptation.

(vii)This Court in In Re: Presidential Reference (CauveryWater Disputes Tribunal) has held that waters of an inter-state river passing through corridors of the riparian statesconstitute national asset and no single State can claimexclusive ownership of its water. In this context, the principleof equitable apportionment internationally recognized by theHelsinki Rules, Compione Rules and Berlin Rules whichhave also been incorporated in the 1987 to 2002 NationalWater Policies, have been regarded to be the guiding factorfor resolving disputes qua apportionment of water of aninter-state river.

(viii) After considering all relevant materials brought on record,we are of the view that having regard to imperative ofeconomy of consumption of water, the final determinationof irrigated area arrived at by the Tribunal for Tamil Nadu,cannot be declared incorrect or fallacious.

(ix)We do not find any perversity of approach in the Tribunal’sfindings with regard to the allocation of water for domesticand industrial purposes in the State of Tamil Nadu. Hence,the same requires no interference.

A(x)Drinking water requirement of the overall population of allthe States has to be placed on higher pedestal as we treatit as hierarchically fundamental principle of equitabledistribution

(xi)The rejection of the stand of Kerala seeking trans-basinBdiversion for hydro-power projects by the Tribunal is justified.The Tribunal has allocated total of 30 TMC of watertowards the overall needs of the State of Kerala and weconcur with the said conclusion of the Tribunal.

(xii)We concur with the Tribunal’s findings that the UnionCTerritory of Puducherry is entitled for “second crop”,having regard to its unique geographical position and itsirrigated area being approximately 43,000 acres.

(xiii) The allocation of water in favour of Union Territory ofPuducherry does not require any further enhancement.

D(xiv) The admission of facts along with the confirmatory empiricaldata suggests that around 20 TMC of groundwater isavailable beneath the surface in Tamil Nadu which theTribunal has not taken into account citing it as conjecture.We, while keeping in mind the risks associated with overEextraction of underground water, deem it fit that 10 TMCof the said available groundwater in Tamil Nadu can, in thefacts and circumstances of the present case, be accountedfor in the final determination of its share.

(xv)The Tribunal had drastically reduced the share of Karnatakatowards Domestic and Industrial purpose for the reasonFbeing that only 1/3[rd]of the city of Bangaluru falls within theriver basin and also on the presumption that 50% of thedrinking water requirement would be met from ground watersupply. The said view taken by the Tribunal ignores thebasic principle pertaining to drinking water and is, thusGunsustainable. Keeping in mind the global status that thecity has attained, an addition of 4.75 TMC is awarded toKarnataka.

(xvi) The perspective of the Tribunal to assign 10 TMC of waterfor environmental protection does not require to be revisited,

STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATEOF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

for such revisit may result in unwarranted pollution anddefeat the conception of sustained environmental purity.

(xvii) In totality, we deem it appropriate to award to the State ofKarnataka an additional 14.75 TMC of water, i.e., 10 TMC(on account of availability of ground water in Tamil Nadu)+ 4.75 TMC (for drinking and domestic purposes includingsuch need for the whole city of Bengaluru).

(xviii) In view of the allocation of additional 14.75 TMC of waterto Karnataka, the State of Karnataka would now be requiredto release 177.25 TMC of water at the inter-state borderwith Tamil Nadu, i.e., at Billigundulu.

(xix)The argument of the Union of India that Section 6A of the1956 Act by employing the word “may” has left room fordiscretion to the Central Government for the purpose offraming scheme does not stand to reason and further itdoes not meet the substance test. Accordingly, the saidsubmission stands repelled. That apart, the framing of thescheme is exclusively meant for implementation of theaward or as the same gets modified by this Court.

(xx)It is made clear that subject to the scheme to be formulatedunder Section 6A of the 1956 Act, in terms of the presentadjudication, the recommendations/directives of the Tribunalwith regard to the monthly releases and not inconsistentwith anything decided herein, are hereby endorsed for thepresent for period of 15 (fifteen) years hence.

405. It is obligatory to clearly state that in view of the acute scarcityof the water resources and the intensely contested claims of the States,it is expected that the allocations hereby made would be utilized for thepurposes earmarked and accepted and no deviancy is shown in carryingout the verdict of this Court.

406. Before parting with the case, we record our unreserved anduninhibited appreciation for Mr. Fali S. Nariman, Mr. S.S. Javali,Mr. A.S. Nambiar, Mr. Rakesh Dwivedi, Mr. Shekhar Naphade,Mr. Shyam Divan, Mr. Jaideep Gupta, learned senior counsel, Mr. RanjitKumar, learned Solicitor General of India, Mr. Mohan V. Katarki,Mr. G. Umapathy, Mr. M.R. Naik and Mr. S.C. Sharma learned counsel

Afor their able assistance without which it would have been extremelydifficult on our part to write this judgment.

407. In the ultimate analysis, Civil Appeal No. 2453 of 2007 filedby the State of Karnataka is partly allowed and all others Appeals standdisposed of accordingly. There shall be no order as to costs.

Kalpana K. Tripathi Appeals disposed of.