STATE OF KARNATAKA v. STATE OF ANDHRA PRADESH AND ORS

Citation: [2000] 3 S.C.R. 301

Court: Supreme Court of India

Bench: S.B. MAJMUDAR, G.B. PATTANAIK, V.N. KHARE, U.C. BANERJEE, R.P. SETHI

Judgment text

ORIGINAL SUIT NO. l OF 1997 STATE OF KARNATAKA ... v. STATE OF ANDHRA PRADESH AND ORS. AND ORIGINAL SUIT NO. 2 OF 1997 STATE OF ANDHRAPRADESH v. • -! STATE OF KARNATAKAAND ORS. APRIL 25, 2000 [S. B. MAJMUDAR, G. B. PATTANAIK, V. N. KHARE, RP. SETHI AND UMESH C. BANERJEE, JJ. ] Constitution ofIndia, Articles 131, 262 r/w Inter-State Water Disputes Act 1956, Ss. 4, 5(2) and (3), 6, 6-A-lnter-State water dispute-Krishna River Basin-Sharing of Water. r between riparian States of Kamataka, Andhra Pradesh and Maharashtra-Disputes refen-ed to Tribunal-Tribunal giving report in December, 1973 incorporating Final Order-Upon references made by the States under S. 5(3) Tribunal giving further report in May, 1976 containing modified Final Order-In both reports two schemes evolved- Scheme A making mass allocation infavour ofthree states ofdependable flow at 75% which was 2060 TMC-Scheme 'B' evolved for giving effect to allocation on percentage basis.

in surplus and deficit years ofjbw-Andhra Pradesh not agreeing to constitution of Krishna Valley Authority (KVA) for implementation of Scheme 'B'-Tribunal therefore not making Scheme 'B' part ofFinal Order-Kamatakafiling suit against riparian states and Union ofIndia for a decree that sU1plus water in excess of2060 TMC be shared in accordance with Scheme 'B'; a mandat01y injunction to Union of India to notify Scheme 'B' and establish the 'KVA' and an injunction restraining Andhra Pradesh from continuing to execute projects till Scheme 'B' was effectively implemented-Held, Scheme 'B' was not a decision ofthe 'Tribunal and was not capable of being implemented by a mandatory injunction from the Supreme Court. Andhra Pradesh filing suit claiming that project-wise allocation had to be read into the mass allocation ofdependable flow made by Tn'hunal andfor a declaration that Kamataka's construction ofthe Almatti Dam to a height of 524.

256 meters constituted an infraction of Tribunal's decision-Andhra Pradesh, inter alia, praying for injunction restraining Kamataka from coriStructing Almatti Dam up to a height of524. 256 meters-Held, the Tribu:nal's decision only made mass allocation and not pmject-wise allocatiOn; further held, as long as total user ofwater by Kamataka did not exceed mass allocation, Tribunal's decision was not violated and no mandatory injunction could be granted; there was no bar to raising ofthe height ofAlmatti Dam up to 519. 6 meters subject to clearances by appmpriat~ authority of Central Government. Constitution ofIndia, A1ticles 131, 262(2) r/w Inter-State Water Disputes Act 1956, Ss.

2(c) and 11-Maintainability of Suit-Kamatakafiling suit for decree that Scheme 'B' which did not form part ofFinal Order ofthe Krishna Water Disputes Tribunal should be notified and given effect to-Defendants Andhra Pradesh and Union ofIndia contending that this was a fresh water dispute within the meaning ofS. 2(c) ofthe Act attracting the bar under Article 262-Held, the asse1tions in the plaint and the relief sought for did not constitute a dispute under s. 2(c) ofthe Act and the jurisdiction ofthe Supreme Court under A1ticle 131 was not ousted. Constitution ofIndia, Articles 131, 142 and 262(2) 1iw Inter-State Water Disputes Act 1956, ss. 2(c), 3(A) and II-Reliefofinjunction against plaintiff sought by defendant-Maintainability of-Maharashtra in additional written statement expressing apprehension ofsubmergence ofland in Maharashtra on account ofraising ofheight ofAlmatti Dam by Karnataka up to 524.

256 and praying for injunction against it-Held, the dispute raised would be a complaint within the meaning ofs. 3(A) and a water dispute unders. 2(c) ofthe Act; Supreme Court could not entertain it under either Article 131 or 142. Inter-State Water Disputes Act 1956, s. 6-Tribunal giving report and decision in 1973 andfurther report and decision in 1976-Andhra Pradesh filing suit with prayerfor declaration that both reports and decisions in their entirety were binding on the three riparian states~tates agreeing to partial dec1T!

e in terms ofsaidprayer-Kamataka contending that Scheme 'B'fanning part ofreport, its suit seeking enforcement ofScheme 'B' could not be resisted y by Andhra Pradesh in view of pa1tial decree-Andhra Pradesh contending t that Tribunal's report was like a judgment and its decision a decree in a suit which hadto be read consistent with the report-Held, Tribunal's decision was not a decree and its report not a judgment in a civil suit; further held, prayer STATE OF KARNATAKA AND ORS. v. STATE OF A. P. 303 in Andhra Pradesh's plaint had to be understood in the light of its ~ assertion regarding raising ofheight ofAlmatti Dam; partial decree could not make the entire report and further report binding on the panies-Law of Pleadings. Original Suit 1/97 The dispute between the three riparian States of Maharashtra, Karnataka and Andhra Pradesh with respect to use, distribution and .... ,, ' .

-' control of the water of inter-State river Krishna stood resolved by the decisions of the Krishna Water Dispute Tribunal ('Tribunal'), constituted under s. 4 of the Inter-State Water Disputes Act, 1956 ('Act'). The Tribunal's first report submitted on December 24, 1973 as well the further report dated May 27, 1976 evolved two Schemes. Scheme "A" made the mass allocation in favour of three riparian States of the dependable flow at 75% which had been arrived at 2060 T. M. C. , indicating that ~ in any water year Maharashtra shall not use more than 560 T. M. C. , Karnataka not more than 700 T. M. C. and Andhra Pradesh not more than 800 T. M. C. It has also indicated that Andhra Pradesh which was the last riparian owner, would be at liberty to use the remaining water that may be flowing in the river Krishna but by such user the State shall not acquire any right whatsoever in respect of the excess quantity, which it -'¥ would use beyond the allotted quantity of 800 T. M. C.

For giving effect to the allocation on percentage basis in surplus as · well as deficit years of flow the Tribunal evolved Scheme ''B" and indicated the same in its original report as well as in its further report. For proper implementation of Scheme ''B", the constitution of the Krishna Valley Authority (KVA) was absolutely necessary, Andhra Pradesh not having agreed for the constitution of the KVA, the Tribunal did not make Scheme ''B" as part of its Final Order and thought it fit to leave the matter either ·to the good sense of the rival States or for the Parliament to make a legislation to that effect under Entry 56 List I of the Seventh Schedule to the Constitution. According to Karnataka Scheme ''B" being a part of the decision of ·Y the Tribunal was also required to be notified by the Central Government under s. 6 of the Act, making it binding on the parties. Andhra Pradesh did not agree.

Karnataka then filed this suit in this Court under Article 131 against Andhra Pradesh, Maharashtra and the Union of India r - I seeking a decree that the surplus water in river Krishna i. e. in excess of ~ 2060 TMC at 75% dependability be shared in accordance with the determinations and directions of the Tribunal; a declaration that Andhra Pradesh was not entitled to insist on its right to use the surplus water i. e. ..... in excess of 2060 TMC at 75% dependability, so long as Scheme ''B" framed by the Tribunal was n_ot fully implemented and a mandatory injunction to Union of India to notify Scheme ''B" framed by the Tribunal and make provisions for establishment of a KVA for implementation of 'v . the Tribunal's directions. Karnataka also prayed for an order of --.. injunction, restraining Andhra Pradesh from continuing to execute several '. projects until Scheme ''B" framed by the Tribunal was effectively implemented.

Andhra Pradesh in its written st~tement took a preliminary objection that the adjudication sought for by Karnataka was itself a water dispute and, therefore, the suit under Article 131 was barred in view of • the mandate under Article 262 of the Constitution read with s. 11 of the Act. Further it was contended that only Scheme "A" could be held to be the decision of the Tribunal. Whatever the Tribunal had observed in relation to framing of Scheme ''B" was obiter and not a part of its r decision as such was un-enforceable. It was further asserted that Scheme "A" having been acted upon by the parties for over two decades and under ~ the said Scheme review having been provided for after May 31, 2000, the question of implementation of Scheme ''B" at this length of time was not only inequitable but uncalled for.

Maharashtra also took the stand that the suit was not maintainable inasmuch as the implementation of Scheme ''B" depended upon the consent of the States and the Court could not force the States to give consent nor direct the Parliament to enact a legislation for the same. Union of * India in its written statement took the stand that the suit as framed was not maintainable by virtue of s. 11 of the Act read with Article 262 of the Constitution. So far as the user of water by the State of Andbra Pradesh ! was concerned, it contended that the award having set out in gross the quantity of water which could be used in a given water year by Maharashtra, 'y- Karnataka and Andhra Pradesh with the liberty to Andhra Pradesh to use the surplus water, the said lib~rty did not confer or create any right in Andhra Pradesh and such user would be subject to right of upper riparian States of Maharashtra and Karnataka. It further asserted that the award STATE OF KARNATAKA AND ORS. v. STATE OF A. P.

305 did not give a project-wise allocation but docs the gross allocation and each ~ of the States was bound to give effect to the award given by the Tribunal. On"the basis of the pleadings this court framed 13 issue including the following: (a) Whether the suit was barred by Article 262(2) of the Constitution read with s. 11 of the Act? ... ,, ' (b) Whether Scheme "B" was part of the "decision" of the Tribunal under s. 6 of the Act and whether it was capable ofor just and equitable to implement Scheme ''B" at this stage?

Original Suit 2/97 / Andhra Pradesh filed this suit in this Court under Article 131 against 4' Karnataka, Maharashtra and the Union of India on the basis that though in the Final Order of the Tribunal, there was a mass allocation of water in favour of the three riparian States out of the 2060 TMC of water under 75% of dependability, a closer scrutiny of the report in its entirety revealed that the allocation in respect of different sub-basins had been made on the basis of projects undertaken in those sub-basins and consequently, no State -"'jwould be entitled to use the entire quantity of water allocated in their favour in any particular sub-basin. In the circumstances the post award constructions undertaken by Karnataka, including its intention to raise the height to Almatti Dam to 524. 256 meters, were a gross violation of the decision of the Tribunal.

Accordingly, Andhra Pradesh inter alia sought a declaration that the Trihunal's report and decision dated December 24, 1973 and further report and decision dated May 27, 1976 in their entirety ...... were binding on the three riparian states; a permanent injunction against Karnataka restraining it from undertaking or continuing with any further constitution with its projects, including Almatti Dam, in the post award phase. Karnataka in its written statement took the stand that the Tribunal ~ had not made any project-wise allocation and on the other hand, the allocation was enbloc. As such the question of interpreting the decision of the Tribunal to the effect that there was restriction in the user of water in any particular basin was not correct. Karnataka had contemplated the height of the Dam at Almatti as 524. 256 meters in the Project Report of ~ 1970 itself. That Report had been filed before the Tribunal and had been marked as document MYPK-3.

Neither Andhra Pradesh nor any other State had raised any obje implemented by a notification wider Section 6 of the Act. It may be noticed at this stage that in Cauvery Water Dispute Case (1993 (Suppl. ) 1 SCC 96) while considering the question as to what formed the decision of the Tribunal under Section 5(2) of the Act this Court examined the interim order which had been passed by the Tribunal and came to the conclusion that if the order is not meant to be merely declaratory in nature but is meant to be implemented and given effect to by the parties, then it would constitute a decision within a meaning of Section 5(2) and is required to be published by the Central government under Section 6 of the Act. Applying the aforesaid ratio to the case in hand and in view of the unequivocal statement made by the Tribwial while deciding Issue No. II to the effect that Issue No.

II and its sub-issues are decided as per the clauses of the final order which contains Scheme 'A', it is difficult to sustain the argument of Mr. Nariman, appearing for the plaintiff- State that Scheme 'B' also is a decision of the Tribwial. As has been indicated earlier that in course of the proceedings before the Tribunal all the party States, no doubt, have consented to the points of dispute to be resolved by the Tribunal as per Exhibit MRK 340. But the Tribunal itself records the finding that on account of non-agreement between the parties it has not been possible to reach a decision on the principle of allocation agreed to under MRK 340 and, therefore, the Tribunal thought it fit to evolve Scheme 'A' which could be implemented on its own, the same being notified under Section 6 of the Act.

In terms of the judgment of this Court in Cauvery Water Disputes case, Scheme 'B' had not been meant to be implemented and given effect to by the parties to the dispute and as such cannot be a decision of the Tribwial under Section 5(2) of the Act. It can be held to be 'facts found' in the report submitted. The Tribunal in considering different proposals submitted by the States came to hold "unless a joint control body or inter State authority was established, it would be difficult to divide the waters ofriver Krishna between the parties in every water year on the lines suggested by the parties. " (at page 161 Ex. PK-1). The Tribunal also recorded a finding: "It is not possible for us to take the view that we can infer the consent of the parties from Ex. MRK-340 filed on 4tb May, 1973.

" In its further Report after answering the references made to it under Section 5(3) of the Act, in Exhibit PK-2 the Tribunal negatived the contentions :-· of the State of Karnataka that allocation of water under Scheme "A" is not the STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ) 331 .. Scheme for the division of water in accordance with the provisions of the Act. In said PK-2 at page 24 the Tribunal did observe: • "The apportionment of water of the inter-State river Krishna must be adapted to the peculiar characteristics of the river system. We may also point out that until 1971-72 less than 1000 T. M. C. was utilised in the entire Krishna basin, and until the entire dependable supply of 2060 TMC is fully utilised, the complaint regarding the apportionment of the remaining water is unrealistic. " In answering Clarification No.

III filed by the State of Kamataka, requiring the Tribunal to give direction for implementation of Scheme "B" the Tribunal, no doubt, drew up a complete Scheme "B' and came to the conclusion that Scheme "B' provides for a fuller and better utilisation of the Waters of river K. tishna, but hasten to add "We cannot make Scheme "B" part of our final order as requested by the learned counsel for the Government of India because the final order should contain only such provisions as may be implemented independently of any agreement or law made by Parliament. " (see Ex. PK 2 at page 26) In its furtl1er report Ex.. PK-2 after considering the question of abolition of Tungbhadra Board the Tribunal held : "In these circumstances we do not think it proper that Scheme 'B' should be implemented by our order.

" The aforesaid findings of the Tribunal both in the Original report as well as the further report unequivocally indicate that the Tribunal never considered Scheme 'B' to form a part of its decision for being implemented even though there cannot be any doubt about the efficacy of the Scheme in question. A water dispute having arisen between the three riparian States in relation to sharing of water of river Krishna and the said dispute having been referred to the Tribunal for its adjudication and the Tribunal having investigated the matters referred to it and having submitted its report containing the facts found as well as its decision, it is that decision which conclusively decides the dispute referred and is capable of being implemented on its own can be said to be the decision of the Tribunal under Section 5(2).

In the case in hand the Tribunal itself being of the opinion that it is unable to implement Scheme 'B' by its own order and having apportioned the water of river Krishna as per Scheme 'A', the said Scheme 'B' cannot be held to be a decision of the Tribunal. It is also true, as contended by Mr. Nariman that the Tribunal did entertain clarification sought for by the State of Kamataka under Section 5(3) of the Act to some of the clauses in Scheme 'B' and a party is entitled to invoke the jurisdiction of the Tribunal under Section 5(3) only in respect of a decision but that by itself, in our opinion, will not clothe Scheme 'B' with the character of a decision of the Tribunal. Mr.

Nariman may be right in his submission that there has been an adjudication by tlie Tribunal in evolving Scheme 'B' indicating the manner in which tlie water of said river Krishna could be shai·ed by three States in surplus and deficit water year, but every adjudication made by the Tribunal cannot be held to be a decision within the meaning of Section 5(2) unless such adjudication is capable of being implemented on its own and applying the aforesaid test Scheme 'B' not being 1' capable of being implemented on its own so long as the back bone of tlie Scheme, namely, the constitution of Monitoring Authority is not agreed to, the said Scheme cannot be held to be a decision within the meaning of Section 5(2) of the Act.

In the aforesaid premises, we answer aforesaid three issues by holding that the Scheme 'B' framed by the Tribunal is not the decision of the Tribunal and as such, was not required to be notified under Section 6 and, consequently cannot be enforced at the behest of the plaintiff. The issues are accordingly answered against the plaintiff. Though we have come to the aforesaid conclusion yet we think it approp1iate to notice that the disputes for sharing waters ofan inter-State river are not easy to be solved. A Tribunal presided over by a judge of tl1is Court took several years in formulating its conclusion. For arriving at its conclusion the Tribunal has attempted several negotiations between the rival States and also has taken into account the experts' evidence adduced by the parties. In evolving the two Schemes - Scheme 'A' and Scheme 'B' it has also taken into account several schemes produced by each of tlie State.

The Tribunal also thought while evolving Scheme 'B' that though it cannot be implemented as it was unable to constitute the Monitoring Authority on account of lack of consent between the parties yet it placed on record the said Scheme 'B' which according to the Tribunal is a better one for fuller utilisation of water resources of Krishna basin amongst the three States. While placing Scheme 'B' in its Rep011 the idea was that the labour of the Tribunal in evolving the Scheme would not be totally lost and that is why it hoped that the parties may agree STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ] 333 for constituting an authority or if they fail to agree the Parliament also could make a law but unfortunately, neither of the two contingencies has happened.

Though Scheme 'B' has been held by us not to be a decision of the Tribunal and as such, is not capable of being implemented by a mandatory injunction from this Court yet we have least hesitation to agree with the findings of the Tribunal itself that said Scheme 'B' provides for a fuller and better utilization of the water resources in river Krishna and in future if the question of allocation of river Krishna is gone into by any auth01ity then the said authority will certainly look to the Scheme 'B' which had been evolved on the data available then and acceptability of the same will be duly considered. We may, however, hasten to add that it will be for the appropriate authority to be entrusted with the task of resolving the long simmering water dispute in Krishna basin between the three riparian States to come to its own decision on the basis of the data placed before it by the contesting States.

t Scheme-B formulated by the earlier Tribunal can only serve as a useful blueprint to this authority, though it may not strictly be binding on it. Our aforesaid observations on Scheme-B be understood in that light. Needless to mention that in course of proceedings before the Tribunal not only the three iiparian States had requested the Tribunal by submitting a document Ex. MRK - 340 on 4'h May, 1973, indicating the principles of allocation signed by three counsel appearing for the three States which, however, was not agreed to later on, but also the learned counsel appearing for the Union of India had submitted before the Tribunal when the Tribunal was considering the 1 clarificatory applications filed by different States on 8h May, 1975, to the effect :- "The Government of India have examined both Schemes 'B' and 'A'. They feel that Scheme 'B' is better and easier to implement than Scheme 'A'.

If Scheme 'B' comes as part of the final order of this Hon'ble Tribunal, the Government of India will take necessary steps for putting it into operation. Scheme 'B' may be put as part of the final order in the manner as the Hon'ble Tribunal feels fit. We would like to have a complete scheme formulated by this Hon'ble Tribunal. " This really indicates how the Union Govenment was anxious to have an order of the Tribunal to make Scheme 'B', a part of its decision though ultimately for the reasons already indicated the Tribunal did not accede to the same. · Issue No. 1. The next imp01tant issue is Issue No. l which raises the question as to the maintainability of the suit in view of the bar provided under Article 262 (2) of the Constitution read with Section 11 of Inter-State Water Disputes Act. Learned Solicitor General Mr. Salve, appearing for the Union of India in fact piloted this issue which was, of course, supported by Mr. Parasaran appearing for the State of Andhra Pradesh.

According to Mr. Salve the relief sought for by the plaintiff-State is itself a water dispute under the Act, and therefore, the suit is not maintainable in view of Section 11 of the Act. Referring to different avennents made in the plaint learned Solicitor General contends that under the plaint the plaintiff really ask for implementation of the allocation already made under Scheme 'A' in respect of 2060 TMC at 75% dependability and the sharing of surplus as evolved under Scheme 'B' and as such the prayer tantamounts to have a new Scheme altogether not evolved by the Tribunal itself and, consequently, a fresh water dispute and therefore, such a dispute cannot be ente1tained by this Court under Aiticle 131 of tl~e Constitution, the same being barred under Section 11 of the Act.

Learned Solicitor General elaborated his argument with reference to the constitutional scheme and even went to the extent of contending that in a given case even the prayer for implementation of an Award of the Tribunal may become a water dispute under Section 2(c) of the Act and the moment it becomes a water dispute this Court will have no jurisdiction to entertain a suit under Article 131 of the Constitution. Learned Solicitor General also refen-ed to issues 4 and 5 formulated in this proceeding and contended that the very issues indicate a water dispute has arisen and consequently suit will not lie. According to Mr.

Salve, even in a suit for implementation of the decision of a tribunal, if issues p arise, which would be a water dispute under Section 2(c)(i) of the Act or fall under Section 3(b) or 3(c) of the Act, then the jurisdiction of the Court under Article 131 must be held to be barred and in the case in hand, in fact, the relief sought for by the plaintiff-State tantamounts to a fresh water dispute.

Learned Solicitor General contends that the language of Section 2(c) read with Section 3 is wide enough to enable any riparian State to raise a dispute in relation to the use, control or distribution of the waters of an Inter-State river and the machinery for resolution of such a dispute is referable to Article 262 of the Constitution, which provision manifests an intent to insulate the Courts from disputes which may assume political overtones and applying the test to the case in hand, the conclusion is irresistible that this Court will not be entitled to entertain a suit under Article 131 of the Constitution. ). STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ] 335 Mr. Parasaran appearing for the State of Andhra Pradesh supported the argument advanced by Mr.

Saive, the learned Solicitor General and contended, that the suit being one not merely for implementation of Scheme 'B', as contended by the plaintiff, but an amalgam of both the Schemes, sharing of 2060 TMC under Scheme 'A' and sharing of surplus above 2060 TMC as per Scheme 'B' it is obviously an innovation which the Tribunal has itself not thought of and more appropriately a fresh water dispute within the meaning of Section 2(c) of the Act and consequently a suit under Article 131 would not lie. Mr. Nariman appearing for the plaintiff-State on the other hand contended, that a suit filed under Article 131 is not exactly a suit filed in ordinaiy Civil Court.

The pleadings of the parties cannot be construed in pedantic maimer and reading the plaint as a whole the conclusion is iiTesistible that the plaintiff has made out a case to the effect that Scheme 'B' evolved by the Tribunal is also the decision of the Tribunal, though it could not be implemented in the absence of Constitution of Monitoring Authority and taking into account the time and energy spent by the Tribunal in evolving such a beneficial Scheme for better and fuller utilisation of the water resources of River Krislma, this Court should issue appropriate direction for implementation of the said Scheme 'B'. According to the learned counsel the dispute relating to sharing of water of River Krislma having been adjudicated by the Tribwial and two Schemes having been evolved for that purpose and the relief being for implementation of Scheme 'B', it is essentially a suit for implementation of.

an adjudicated dispute and no longer forms a dispute under Section 2(c) of the Act, as contended by the learned Solicitor General. In this view of the matter the bar under Section 11 of the Act cannot be attracted. Before examining the rival stand of the parties it may be stated at the outset that the question ofmaintainability has to be decided upon the averments made by the plaintiffs and the relief sought for and taking the totality of the same and not p by spinning up one paragraph of the,plaint and then deciding the matter. In interpreting the scope of Article 131 of the Constitution, in the case of State ofRajasthan v. Union ofIndia, [1978] 1 SCR 1 Chandrachud, J. , as he then was, held that the requirement is that the dispute must involve a question, whether of law or fact, on which the existence or extent of a legal right depends. It is this qualification which affords the true guide for determining whether a particular dispute is comprehended within Article 131.

The purpose ~- of Article 131 is to afford a fornm for the resolution of disputes which depend for their decision on the existence or extent of a legal right. In the very same decision Bhagwati, J. , as he then was, analysing the provisions of Article 131 of the Constitution came to hold that there are two limitations in regard to the nature of the suit whether can be ente1tained by the Supreme Court under the Article. One is in regard to parties and the other is in regard to the subject ~ matter. In the present case, so far as parties are concerned, it is covered by clauses (a) and (c), inasmuch as the grievances of the plaintiff is that an adjudicated decision of the Tribunal in evolving Scheme 'B' was not ..... notified by the Government of India under Section 6 of the Act and, as such, a dispute between the plaintiff and the defendant no.

3 - the Union of India and further it is a dispute between the State of Kamataka and the State of Andhra Pradesh under Clause (c) of Article 131 as the said State of Andhra ..! Pradesh did not agree to the constitution of a Monitoring Authority for '""" \ ~ implementation of an adjudicated decision of the Tribunal by evolving Scheme 'B'. In the very same decision Bhagwati, J. , also further indicated that the Supreme Comt would have the power to give whatever reliefs are necessary for enforcement of legal right claimed in the suit if such legal right is established. In State of Karnataka v. Union ofIndia & Am:, [1978] 2 SCR 1 this Court again considered the scope of Article 131 of the Constitution. Chandhrachud, J. , as he then was, held thus : ' "The jurisdiction confeITed on the Supreme Court by Aritcle 131 of the Constitution should not be tested on the anvil ofbanal rules which are applied under the Code of Civil Procedure for dete1mining whether a suit is maintainable.

Article 131 undoubtedly confers 'original jurisdiction' on the Supreme Court and the commonest form • J of a legal proceeding which is tried by a court in the exercise of its original jurisdiction is a suit. But a constitutional provision, which . · confers exclusive jurisdiction on this Comt to entertain disputes of a certain nature in the exercise of its original jurisdiction, cannot be equated with a provision confeITing a right on a civil cowt to entertain a common suit so as to apply to an original proceeding under Article 131 the canons of a suit which is ordinarily triable under section 15 of the Code of Civil Procedme by a court of the lowest grade competent to try it. Advisedly, the Constitution does not describe the proceeding which may be brought under Article 131 as a 'suit' and significantly, aiticle 131 uses words and phrases not commonly employed for detennining the jurisdiction of a court of first instance to ente1tain and try a suit.

It does not speak of a 'cause of action', an expression of known and definite legal impo1t in the world of witness actions. Instead, it employs the word 'dispute', which is no part of the elliptical jargon of law. But above all, Article 131 which STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ] 337 in a manner of speaking is a self-contained code on matters falling within its purview, provides expressly for the condition su~ject to which an action can lie under it. That condition is expressed by the clause: "if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends". By the very terms of the article, therefore, the sole condition which is required to be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties ret(m-ed to in clauses (a) to (c) must involve a question on which the __, -11 existence or extent o~- a legal right depends.

The quintessence of Article 131 is that there has to be a dispute between the pmties regarding a question on which the existence or extent of a legal right depends. A challenge by the State Government to the authority of the Central Government to appoint a Commission of Inquiry clearly involves a question on which the existence or extent ; of the legal right of the Central Government to appoint the Commission of Inquiry depends and that is enough to sustain the proceeding brought by the State under Article 131 of the Constitution. Far from its being a case of the "omission of the obvious". Justifying the reading of words into Article 131 which are not there, I consider that the Constitution has purposefully cohferred on this Court a jurisdiction which is untrammelled by considerations which fetter the jurisdiction of a court of first instance, which entertains and tries suits of a civil nature.

The very nature of the disputes arising under Alticle 131 is different, both in form and substance, from the nature ofclaims which require adjudication in ordinary suits. " The learned judge had also further observed : "A proceeding under Alticle 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is between two or more govenunents - either the one or the other possesses the constitution power to act. " Bhagwati, J. agreeing with Chandrachud, J. had a:so observed thus : "The only requirement necessary for attracting the applicability of Article 131 is that the dispute must be one involving any question "on which the existence or extent of a legal right" depends, irrespective 338 SUPREME COURT REPORT'S [2000] 3 S. C. R. whether the legal right is claimed by one party or the other and it is ~· not necessary that some legal right of the plaintiff should be infringed before a suit can . be brought under that article. " Kailasam, J. and Beg, J.

agreed with the conclusions airived at by Chandrachud, J. and Bhagwati, J. The eminent Jurist Shri H. M. Seervai, in his book on "Constitutional Law of India" , dealing with the scope of Alticle 131 of the Constitution states . ~ : "when a Court is given exclusive jurisdiction in respect of a dispute between t- ' patties, it is reasonable to hold that the Court has power to resolve the whole dispute, including the enforcement of its decrees or orders, especially when provision has been made for such enforcement. The words 'if and in so far as the dispute involves any question (whether of law or fact) on which the existence of a legal right depends' are meant to emphasize the fact that the ..... __ dispute must be one relating to leg f Kamataka also at one point of time having taken the stand that the Scheme "B" should not be implemented, it would not be appropriate for this Court to issue any direction for implementation of the said Scheme "B". In course of arguments, Mr.

Andhyarujina, the learned senior counsel, appearing for the State of Mahar·ashtra, emphasised the fact that even as late as 30th of August, 1993, the Secretary to the Government, Irrigation Department, Kamataka, had intimated to the Secretary to the Government, Ministry of Water Resources, Government of India as per Exh. PK-94 that the Karnataka Government is of the firm opinion that establishment of Krishna Valley Authority is not called for, since even without reference to Scheme "B", the surplus water can be shared by the parties by mutual agreement. This indicates the stand of the Kamataka Government with regard to the implementation of the so-called Scheme "B" evolved by the tribunal. STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ] 341 Mr. Nariman, appearing for the plaintiff on the other hand contended that the State of Kamataka has all along been keen in requesting for implementation of Scheme "B", though in that letter PK 94, referred to by Mr.

Andhyarujina, it has been merely stated that at that point of time it may not be necessary to have the Krishna Valley Authority. According to Mr. Nariman, rights in relation to sharing of water of river Krishna having been crystalised by formulation of both the schemes, that right cannot be negatived merely because it has not been operated for this length of time. Having considered several correspondence between the parties, we find that though initially the State of Kamataka had requested the Union Govemment for implementation of Scheme "B'', thinking the same to be the decision of the tribunal and even though at one point of time the Union itself through its counsel Mr. Seyid Muhammad, had requested the tribunal itself to make Scheme "B" operative but later on each of the states began their water management projects on the basis of the mass allocation made under Scheme "A". Mr.

Nariman is right in his submission that the states had no other altemative inasmuch as it was only Scheme "A" which was notified and was made binding between the parties but the fact remains that having planned their respective projects on the basis of mass allocation made by the tribunal, the State of Kamataka did tbink in the year 1993 in response to the letter from the Union Government for constitution of the Krishna Valley Authority that the State does not think it proper to have the Authority at that point of time. Thus all the three states have made their respective planning for utilisation of the allocated water in their respective share by the tribunal under Scheme "A" which as until today continues to be effective but for the apprehension and dispute between the State of Andhra Pradesh and Kamataka, when Kamataka started construction of dam at Almatti and Andhra Pradesh went on with large projects like Telugu Ganga, Nagarjunasagar and others.

In the matter of sharing of waters of inter- State river when the tribunal constituted under the Inter-State Water Disputes Act, evolved a scheme of mass allocation as under Scheme "A" and that scheme has remained operative for all these years and could be reviewed at 1 any time after 31' of May, 2000 even as per the decision of the tribunal itself, the contention of the State of Maharashtra that direction to implement scheme "B" at this length of time should not be given effect to is of considerable substance. In a dispute of the present nature when the Court is in cession of the matter before issuing any direction, the Court is not examining merely the rights of the parties, if any, flowing from any earlier order of tribunal but also the question of the equitability and the question of the efficaciousness of any such direction. It is in this context, the submission of Mr.

Parasaran, the learned senior counsel, appearing for the State of Andhra Pradesh to the effect that a tested scheme like Scheme "A" which has remained operative for all these years should not be given a go-bye, abruptly by directly implementation of Scheme "B", particularly, when it is an admitted fact that not only the backbone of said Scheme "B", the Krishna Valley Authority, has not been constituted but alsci the States themselves have not been able to build-up their reservoirs for storage of surplus water, which is also a part of Scheme "B" itself. We, however need not further delve into this matte~ in view of our conclusion earlier that Scheme "B" is not a decision of the tribunal and as such k the Court will not be justified in issuing . any direction in implementation of the said scheme. This issue is answered accordingly. ISSUE NOS. JO AND 11. These two issues are inter-linked and, therefore are taken up together for consideration.

The plaintiffs stand in this respect is that while making mass allocation in favour of tlrree States in respect of 2060 TMC of Krishna river, which was found at 75% of dependability and while allocating specified quantity of water in a water year in respect of the three states, the tribunal has also observed that Andhra Pradesh will be at liberty to use in any water year, the remaining water that may be flowing in river Krishna but such liberty will not confer any right whatsoever nor can the State claim any right in respect ofany water in excess of the quantity specified namely 800 TMC.

The relevant Clause of the Final Order as notified in the Gazette by the Government ofIndia is extracted hereto: "(C) The State ofAndhra Pradesh will be at liberty to use in any water year the remaining water that may be flowing in the river Krishna but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year, water of the river Krishna in excess of the quantity specified hereunder:- (i) as from the water year commencing on the 1st June next after the date of the publica~on of the decision of the Tribunal in the Official Gazette up to the water year 1982-83. 800 T. M. C. (ii) as from the water year 1983-84 up to the water year 1989-90. 800 T. M. C. plus STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J.

] 343 a quantity of water equivalent to 10 per cent of the excess of the· average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its own projects using 3 T. M. C. or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects. (iii) as from the water year 990-91 up to the water year 1997-98 800 T. M. C. plus a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1982-83, 1983-84 and 1984-85 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water 1968-69 from such projects. (iv) as from the water year 1998-99 onwards 800 T. M. C.

plus a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from i•; own projects using 3 T. M. C. or more annually over the utilisation for . ,. _ such irrigation in the water year 1968-69 from such projects. " But notwithstanding the aforesaid observations made by the tribunal, the State of Andhra Pradesh is going ahead with large-scale water projects for utilisation of all the surplus water, flowing in river basin to pre-empt the upper riparian States like Maharashtra and Kamataka from claiming their share in surplus water in excess of 2060 T. M. C. , allocated under Scheme "A".

The State of Maharashtra as well as the Union Government also support the aforesaid stand of the State of Kamatak:a but the State of Andhra Pradesh on the other hand takes the stand that Andhra Pradesh being the lowest riparian State in the river basin and the tribunal having granted the liberty to use the remaining water which may be flowing in river Krishna, there should not be any fetter in exercise of that libe1ty by the State and the apprehension of the State of Kamataka as well as the State of Maharashtra is unfounded. In the context of the rival stand of the parties, the question that arises for consideration is whether the liberty granted by the tribunal in favour of the lowest riparian State, namely the State of Andhra Pradesh to use the excess water is unfettered and the State can use the same in any manner it likes, or there \ should be some restrictions in such use.

At the outset, it may be noticed that in the very clause, while giving liberty to State of Andhra Pradesh to use the remaining water, the tribunal itself has hastened to hold - "but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year, water of the river Krishna in excess of the quantity specified. " The aforesaid direction of the tribunal itself curtails the so-called liberty granted to the State of Andhra Pradesh but since the tribunal was givip. g a mass allocation in respect of the three States and unless such liberty is granted in favour of the lowest riparian State, the water would have otherwise entered into the Bay of Bengal and, therefore, it was thought fit that the lowest riparian State could utilise the same, but can never claim a right by using the excess water.

In the context of the expenses involved for such major projects and the national loss, which the country cannot afford to sustain in a Federal Structure like our country, it is the duty of the Central Government to bear this in mind. while sanctioning any such major project of the lowest riparian State like Andhra Pradesh. A bare reading of the report of the tribunal and its decision in the form of a Final Order, which has been notified by the Central Government, unequivocally indicates that the so-called liberty granted to the lowest riparian state does not confer any right beyond the allocable share, in other words, what the lowest riparian state bas been granted under the decision of the tribunal is a liberty to utilise the surplu~ water flowing without creating any right in favour of the State concerned.

Such a liberty, therefore would mean that so long as the mass allocation ;,, in force, the lowest riparian State can certainly utilise any excess water, flowing in the river basin, before it merges into the sea but such user should not be, by way of permanent construction of large-scale projects and water reservoirs, particularly, when the so-called mass allocation under Scheme "A" itself is liable to be reviewed after 31" of May, 2000, which is fast approaching. The contention of Mr. Parasaran, appearing for the State of Andhra Pradesh, in this regard to the effect that there is no fetter on the manner of user of the surplus water, the liberty having been given, cannot be accepted in such broad basis though it cannot be denied that so long as Scheme "A" is under operation and so long as the two upper riparian States get their share of allocation of water, the lowest riparian State of Andhra Pradesh can use the excess water flowing down in the river basin.

It is true that while granting such liberty, the tribunal bas not indicated as to the manner of its user but the same must be read into the moment the other part of the Order is read namely such user will neither confer a right nor can be deemed to have been allocated in favour of the said lowest riparian State. This being the nature of direction of the tribunal, it is . l STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTA.. 'fAIK, J. ] 345 appropriate for the Central Government to exercise the discretion while granting any scheme or project of the lowest riparian state and bearing in mind, what is really meant by the liberty granted, so that the lowest riparian state should not be allowed to proceed ahead with large-scale water projects for utilisation of the surplus water in excess of the allocated quantity over which, the State has no right.

It is the Central Government which has to exercise this discretion while clearing projects of the lowest riparian State and it should be so exercised that there should not be any apprehension in the minds of the upper States that for all times to come, their right of sharing the surplus water would in any manner be endangered. These two issues are answered accordingly. ISSUE NO. 9 In view of what has been stated by us while answering Issues 10 and 11, this issue, no longer survives for any further consideration and this jssue is accordingly answered against the defendant State of Andhra Pradesh. ISSUE NO. 2 This issue has to be answered on the basis of the assertions made in tlie plaint as well as the cause of action for filing of the suit.

As has been stated earlier, the State of Karnataka being of the opinion that Scheme "B" evolved by the tribunal is also a decision of the tribunal, which unfortunately could not be given effect to, on account of lack of consent of all the States for constituting a Monitoring Authority and having failed in its attempt to get the said scheme implemented by getting a Monitoring Authority constituted, the said state filed the present suit. It is the refusal of the State of Andhra Pradesh to agree to the constitution of an authority, thereby making the scheme un- p implementable, which gave the cause of action to file the present suit on the basis of which the suit has been filed and taking into account the fact that the State of Andhra Pradesh has never agreed to the constitution of the Krishna Valley Authority, which was thought to be the back-bone of Scheme "B", it cannot be said that the plaintiff-State has no cause of action for filing the suit.

This issue is answered in favour of the plaintiff and against the defendants. ISSUE NO. 3 The aforesaid issue really does not arise for any further elucidation and discussion inasmuch as it has been held by us that Scheme "B" is not the decision of the tribunal, though the same is mentioned in the report. The relief sought for, therefore, in the plaint cannot be held to be contrary to the report as the report submitted by the tribunal did contain both the schemes- Scheme "A" and Scheme "B" but it is certainly contrary to the decision of the tribunal inasmuch as tribunal itself resolved the dispute referred to it by formulating Scheme "A" for distribution of the water on mass allocation basis and which according to the tribunal itself is contained in the Final Order of the tribunal. This issue is answered accordingly. ISSUE NO. 8 The aforesaid issue arises in view of Prayer (c) of the plaint, whereunder, the plaintiff has prayed that Defendant No.

3 be directed by mandatory order to notify Scheme "B" and make provisions for establishment of Krishna Valley Authority, as contemplated under Section 6(A) of L'ie Inter-State Water Disputes Act. It is the contention of the plaintiff that constitution of the Monitoring Authority under Scheme "B" being the back-bone of the scheme and Section 6(A) having been brought on the Statute book by amendment, such authority could be constituted by the Central Government in exercise of powers under Section 6(A) and, therefore, though on the date, the further report of the tribunal was submitted, it would not have been possible for tl1e Union Government to constitute tl1e Monitoring Authority but now after insertion of Section 6(A) of the Act, there is no impediment for exercise oi that power and, therefore, this Comt should issue appropriate directions in that regard. According to Mr.

Nariman, the very object ofinsertion of Section 6(A) of the Act, being the implementation of the decision of the tribunal under the Act, which decision may involve of setting up of a machinery for the purpose, as is indicated in the Statement ofObjects and Reasons and in the case in hand, setting up of such authority, not having been agreed to by the parties, nor the Parliament having come forward with any legislation under Entry 56 of List I of the Seventh Schedule and at the same time the said Scheme "B" having been evolved for better and fuller utilisation of the water of river Krishna by all the riparian States, this Court should issue necessary mandatory orders, calling upon the Union Government to constitute the authority. According to Mr.

Nariman, the learned senior counsel for the State of Karnataka, Section 6(A) confers power upon the Central Government and correspondingly, casts a duty on the said Government and if the Statute confers a power coupled with duty, the Court can always compel the authority concerned to perform the said duty, if the same is not performed at all. Mr. Nariman contends that though the tribunal devoted a good deal of its time in evolving Scheme "B" for better STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ] 347 and fuller utilisation of the water of river Krishna amongst the three riparian '.. ,~,.... States, but could not make it a part of the Final Order as one of the States did not give consent to the tribunal for constituting the Monitoring Authority, which in fact is said to be the back-bone of the scheme.

But to obviate such difficulties when the Parliament itself has come forward, engrafting Section 6(A) on the Statute Book, which confers ample powers on the Central Government to form the authority for implementation of the decision of the tribunal, the Court, if it comes to the conclusion that Scheme "B" is the Al decision and should be implemented, can issue appropriate directions to the Central Government for constituting the Monitoring Authority. According to ·Mr. Nariman, Section 6(A)(l) is purely an executive function and does not contain an iota of flavour of subordinate legislation and, therefore, there should be no difficulty for the Court in issuing mandatory injunction. Mr. Parasaran, appearing for the State of Andhra Pradesh, on the other hand contended that the power under Section 6(A) is not executive, but legislative ilt in nature and, therefore, Cowt would not be justified in issuing a mandamus ?

"" or mandatory injunction for performance of a legislative function in the same way as the Court cannot call upon the legislature to frame a law. Mr. Parasaran also further argued that sub-section (7) of Section 6(A) contemplates that the scheme framed under Section 6(A) has to be laid before each House of · Parliament and it is only after the Parliament ratifies the scheme, will have effect and in the event, the Parliament does not agree for the framing of the )" Scheme, the same shall not have any effect. This being the position, the Court will not pass a decree which ultimately is capable of being nullified by the Parliament Mr. Parasaran further argues that Section 6(A) having come into existence in 1980, long after the decision of the tribw1al, even if it is held that Scheme "B" is a decision of the tribunal and the performance of duty by the Central Goveminent under Section 6(A) is executive in nature, yet the power _........

cannot be exercised vis-a-vis the decision of the tribunal except those subject matter which would fall within the power related to Entry 56 of List I. According to the learned counsel, the Central Govemment can establish an authority only if Parliament makes law under Entry 56 of List I and also makes a further declaration as required. Mr. Andhyarujina, the learned senior counsel for the State of Maharashtra, also supported the contention of Mr. Parasaran and submitted that the power under Section 6(A) is essentially a delegated legislative power and, therefore, no court would be justified in issuing -lf mandamus for exercise of such power. This issue really does not require to be answered since question of direction to constitute an authority like Krishna Valley Authority would crop up, only if it is held that Scheme "B" evolved by the tribunal is the decision of the tribunal and for its implementation an Authority is required to be constituted.

We have already held that Scheme "B" cannot be held to be the decision of the tribunal, while deciding issue Nos. 4, 5 and 7 and in that view of the matter, we are not inclined to examine the contentious issues as to whether the exercise of power by the Central Government under Section 6(A) is an executive one, as contended by Mr. Narirnan or is legislative in nature, as contended by Mr. Parasaran. We, therefore, leave this issue open, not deciding the same. ISSUE NO. 12 This issue has been framed at the instance of the State of Maharashtra, in view of the stand taken by the said State that a review having been provided for, in 2000 A. D. , the suit filed by the plaintiff is pre-mature. While providing mass allocation in favour of three riparian States on the basis of 2060 T. M. C.

bf water at 75% dependable flow, the tribunal itself has observed in its Original Report, which has been marked as Exhibit PKl that the Order of the 1 tribunal could be reviewed at any time after 31' of May, 2000 and this period is considered reasonable in view of the fact that during the intervening period there will be increasing demands for water for irrigation and other purposes in the Krishna basin which may have to be examined in the light of the fresh data that may be available and further in view of the stupendous advance in the technology in the matter of conservation of water and its uses and also for other reasons. But the aforesaid review which has been indicated in the Order of the tribunal is in relation to the allocation made under Scheme "A" and has nothing to do with Scheme "B".

Since plaintiff-State has filed the suit on the assumption that Scheme "B" is the decision of the tribunal and should be p implemented by a mandatory order of the Court, such a suit cannot be held to be pre-mat:ure on the ground that a review has been provided for after 2000A. D. This issue is, therefore, answered in favour of the plaintiff and against the defendants. ISSUE NO. 13 In the context of the prayer made in the plaint as well as the basis of the said prayer and in view of our findings on Issues 3, 4 arid 7, question of granting relief sought for by the plaintiff State does not arise. But at the same· time this being a suit under Article 131 of the Constitution, and in view of the nature of disputes raised by the parties and in view of our discussion in the STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J.

] 349 judgment relating to Scheme 'B' evolved by the Tribunal, we think it appropriate to observe that in the event any of the riparian State approaches the Central Government, the Central Government would do well in constituting a Tribunal which Tribunal can go into the entire gamut of disputes and in the said proceedings the parties can certainly place the datas and materials on the basis of which Bacchawat Tribunal had evolved the two Schemes for efficacious allocation of water in river Krishna. It will also be open for the parties to place fresh datas on the basis of improved method of gauging even for finding out the availability of water in Krishna basin. In fact the learned Solicitor General, fairly stated that in the event any of the riparian States approaches the Central Government, it would not hesitate to discharge its statutory obligation for constitution of a Tribunal and that is the only solution at this juncture.

The suit is accordingly dismissed with these observations. There would, however, be no order as to costs. PATTANAIK, J. The State of Andhra Pradesh has filed the suit under Article 131 of the Constitution of India, impleading the State of Karnataka, Union of India and State of Maharashtra as party defendants, seeking relief of ·declaration and mandatory injunction on the allegation that the State of ,· Karnataka, in particular has made gross violations of the decision of Krishna ' y· Water Disputes Tribunal and such violations have adversely affected the residents of the State of Andhra Pradesh. The relief sought for in the suit are as under: "(a) declare that the report /decision dated 24. 12. 1973 and the further report/decision dated 27. 5.

1976 of the Krishna Water Disputes Tribunal (KWDD in their entirety are binding upon the three riparian States of Maharashtra, Kamataka and Andlu·a Pradesh and also the Union of India; (b) declare that the riparian States are duty bound to fully disclose to each other and also to the Union of India all particulars of all projects undertaken or proposed after December, 1973 and May, 1976 and to direct the defendants to ensure that execution thereof are in confonnity with and do not conflict with or violate the decisions of the KWDT and they do not adversely affect the rights of the other riparian States; (c) declare that the party States are entitled to utilise not more than the quantity of water which is allocated or permitted by the decisiop.

s of the KWDT for the respective projects of the respective party States before the Tribunal; and that any variation in either storage or utilisation of the waters by each such state in respect ofeach of such projects could only be with the prior consent or concurrence of the other riparian States; (d) declare that all the projects executed and/or which are in the process of execution by the State of Kamataka which are not in conformity with and conflict with or violate the decisions of the KWDT, as illegal and unauthorised. (e) declare that approvals I sanctions I clearances I in-principle clearances granted by the Union of India on or after KWDT decisions ' • on 24. 12. 1973 and on 27. 5.

1976 in respect of schemes I projects I undertaken by the Government of Karnataka are invalid and direct the Union Government to review I reconsider all such schemes I projects proposed I undertaken by Karnataka, afresh, after obtaining the views thereon of the other riparian States; (f) declare that the State of Kamataka and Maharashtra shall not be entitled to claim any rights preferential or otherwise in respect of ~torage, control and use of waters of the inter- State river Krishna in respect of the schemes /projects not authorised by the decision of the KWDT; (g) declare that the Uniop.

Government is duty bound to consult all the riparian States of Maharashtra, Kamataka and Andhra Pradesh before according any approvals I sanctions I clearances I inprinciple clearances to any schemes I projects proposed I unde1taken by any of t11e riparian States on the inter-State river Krishna and direct the Union Government to act in terms of the said declaration; (h) grant a mandatory injunction directing the State of Kamataka to undo al! its illegal, unauthorised actions regarding projects/ schemes and in pa1ticular the following projects executed by it contrary to the decisions of KWDT so as to bring them in conformity with the said 't decisions: Almatti Dam under UKP Construction of Canals/Lifts Schemes on Almatti Reservoir. Upper Krishna Projects in K-2 Sub-basin. Hippargi Weir/Irrigation Schemes. STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ) 351 Construction of lndi and Rampur lift schemes on Narayanpur reservoir and the canals.

(i) grant a permanent injunction restraining the State of Kamataka from unde1taking, continuing or proceeding with any further construction in respect of the following proj~cts: Almatti Dam under UKP Constmction of Canals/Lifts Schemes on Almatti Reservoir Upper Krishna Projects in K-2 Sub-basin. Hippargi Weir/Irrigation Schemes. Construction of lndi and Rampur lift Schemes on Narayanpur reservoir and the canals. G) appoint a team of experts for making a comprehensive technoeconomic evaluation and environmental impact analysis in respect of the following projects and, pending orders of this Hon'ble Court on the report of the team of experts, grant an order of injunction restraining the Defendant No. 1 - State of Karnataka from proceeding with any further construction in any of the following projects/ schemes: Almatti Dam under UKP Construction of Canals/ Lifts Schemes on Almatti Reservoir. Upper Krishna Projects in K-2 Sub-basin. Hippargi Weir/Irrigation Scheme.

Construction of lndi and Rampur lift schemes on Narayanpur Reservoir and the canals. (k) to issue a permanent injunction restraining the Defendant No. 1 State of Kamataka from growing or allowing to grow sugarcane or raising other wet crops in the command areas falling under the projects/schemes within the Upper Krishna Project; (I) pass a decree in terms of prayers (a) to (k); and (m) award costs of the present proceeding in favour of the Plaintiff; (n) pass such further decree or decrees or other orders as this Hon'ble Court may deem fit in the facts and circumstances of the case. " Though there are as many as 14 reliefs sought for as stated above, but essentially the reliefs relate to the construction of Almatti Dam under Upper ... ,.. : Krishna Project by the State of Karnataka to a height of 524. 256 M.

Though the averments of facts in the plaint have been made in 71 paragraphs, shorn of minute details, the same may be stated as under: \" That the dispute between the three riparian States namely Maharashtra, Karnataka and Andhra Pradesh with respect to use, distribution and control of the water of inter-State river Krishna stood resolved by the decisions of the . Aii.. tribunal, constituted under Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as 'the Act') by the decision rendered in 1973 and the Further decision rendered in 1976. The said decision having been notified by the Central. Government under Section 6, became binding on all parties.

·All the parties-States being constituents of the Federation of Republic of India, the plaintiff expected that each State, while undertaking their projects for utilisation of the quantity of water allocated in their favour by the tribunal would consult with the other concerned States and would so use, which will ~ not be against the decision of the tribunal in any manner. But the State of Karnataka has not been acting in accordance with the letter and spirit of the d,ecision of the tribunal and on the other hand has violated the expressed terms and conditions of the tribunal, which compelled the State of Andhra Pradesh to invoke the jurisdiction of the Supreme Court under Article 131 of the Constitution.

After indicating the topography of the river as well as the three -( riparian States and the disputes which arose between the States that lead the Central Government to constitute the Krishna Water Disputes Tribunal, the plaintiff has stated that the tribunal framed seven main issues and under issue No. II with its eight sub-issues, decided the question of equitable apportionment of the beneficial use of the waters of the river Krishna and the river Valley by evolving Scheme "A" and making the same as its Final Order or decision, which became binding on all the parties, after the same was notified ___. __ - . by the Union Goveinment under Section 6 of the Act. It is not necessary for us to reiterate all the facts leading to the raising of disputes and constitution of the tribunal, which we have already narrated in judgment in O. S. l of 1997, filed by the State of Karnataka.

The plaintiff then has averred as to how on the basis of agreement between the parties, the 75% dependable flow at Vijayawada was found to be 2060 TMC and while considering the case ofeach State for allocation of their respective share of water in respect of the aforesaid ~ 75% ofdependable flow, several projects in the river basin, already undertaken by the States as well as the quantity of water required for the projects were considered by the tribunal on the basis of which the ultimate figure of STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ] 353 allocation were arrived at. According to the plaint, the tribunal, while restraining the States of Maharashtra and Mysore from using more water than allocated in their favour, granted liberty to the plaintiff-State of Andbra Pradesh to use the remaining water with the rider that the State of Andbra Pradesh will not acquire any right to the user of such water except to the extent allocated to it.

The plaintiff also averred that while making allocation to the three States, no express provisions were made for sharing of any deficiency and further the tribunal took note of the fact that out of 100 years, deficiency may occur in 25 years. It was also averred that to relieve the State of Andbra Pradesh from the aforesaid difficulty, the tribunal permitted the State of Andbra Pradesh to store water in the Nagai:junasagar Dam and in Srisailam Dam and held that for such storage, there would not be any deduction from its share out of the dependable flow on the ground that if the water is not allowed to be stored by the plaintiff-State, then it would flow down and get submerged in the sea.

According to the plaint, the tribunal did consider the different project reports which had been produced before it, in relation to the Upper Krishna Project and allowing the protected utilisation of 103 TMC, it came to the conclusion that the demand of State of Kamataka to the extent of 52 TMC to be utilised by Narayanpur Right Bank Canal is worth consideration. After enumerating the different clauses of the Final Order of the ·~ tribunal in its original report of 1973, the plaintiff has averred that though the tribunal has made allocation enbloc in a negative form namely that the State cannot utilise more than the allocable quantity of water in its share in any water year but the said enbloc allocation has to be read in the light of the relevant stand of the parties before the tribunal, the facts and figures produced before the tribunal and the ultimate basis on which the conclusion was arrived at.

According to the plaintiff, by taking recourse to the aforesaid method, it would be crystal clear that party- States were restrained from utilising in ......... different sub-basins of river Krishna within their respective territory, beyond what was considered as the protective use and the additional quantity allocated to their share. It has been averred in the plaint that' so far as Upper Krishna Project is concerned within the State of Kamataka, the tribunal has allocated only 160 TMC of water for being used and the construction of Almatti Dam to the height of 524 Meters, as indicated by the State of Kamataka, would, therefore, on the face ofit, is in violation of the decision of the tribunal.

After referring to the different applications for clarifications sought for by different States under Section 5(3) of the Act and the answer of the tribunal on the same, the plaintiff has also avened as to how the tribunal dealt with the contentions raised by the State of Maharashtra before it, in relation to the allocation of 52 TMC of water from Narayanpur Right Bank Canal. According to the plaintiff, though, no doubt in the Final .

Order of the tribunal, there has been a mass allocation of water in favour of the three riparian States out of the 2060 TMC of water under 75% of dependability at Vijayawada, which figure was arrived at by consent of the parties, but a closer scrutiny of the report in its entirety being examined, it would be apparent that the allocation in respect ofdifferent sub-basins had been made on the basis of projects undertaken in those subbasins and consequently, no State would be entitled to use the entire quantity of water allocated in their favour in any particular sub-basin. The plaintiff, then has averred that the post award developments undertaken by the State of Karnataka, intending to raise the height of Almatti Dam to 524 Meters is nothing but a gross violation of the decision of the tribunal and, therefore, this Court should injunct the State of Karnataka in going ahead with the Almatti Dam upto the height of 524 Meters, as indicated in its project.

The plaintiff then referred to several correspondence made between the State of Karnataka and State of Andhra Pradesh inter se, as well as correspondence between these States and Union Government and Central Water Commission. It has also been averred that allowing the State of Kamataka to construct the dam at Almatti up to a height of 524 Metres would be grossly detrimental to the lower riparian state of Andhra Pradesh inasmuch as for three months in a year from July to September, the State of Andhra Pradesh may go dry and the entire crop in the State would get damaged for paucity of water. The plaintiff also has averred in several paragraphs of the plaint, as to how the plaintiff-State has been demanding from the State of Karnataka to have suitable information in relation to the construction of the dam at Almatti and how the plaintiff-State has been prevented from being favoured with any such information.

In paragraph 34 of the plaint, the plaintiff refers to the letter addressed to the Chief Minister of Andhra Pradesh by the then Union Minister for Water Resources, proposing _,.. _ . to convene a meeting of Chief Ministers of the Krishna Basin States for discussing Upper Krishna Project Stage-II and along with the said letter, the observation of Central Water Commission, indicating how the project at Almatti creates a physical capability of water utilisation in excess of 173 TMC, which would be possible in view of the proposed top of the radial gate at FRL 521 meters against the required level of 518. 7 meters for utilisation of 173 TMC of water.

In the subsequent paragraph of the plaint, it has also been indicated as to how the State of Andhra Pradesh has been objecting to the proposals of the State of Karnataka to have the height of Almatti dam at 524 meters under the guise of flood protection measure and then how the plaintiff State requested the Prime Minister of India to intervene in the matter to avoid STATE OF KARNATAKA AND ORS. v. STATE OF A. P. [PATTANAIK, J. ] 355 violation of the award of the Krishna Water Disputes Tribunal.

In paragraph 39 of the plaint, it has been averred that the Union Government as well as the Central Water Commission which are responsible for clearance of inter-State Projects, bent upon clearing the Almatti Project up to a dam height of 524 meters without even consulting the State of Andhra Pradesh, though, according to the plaintiff in a Federal Structure of the Government, each constituent State would be entitled to know the progress of any project in relation to inter- State river, since it may have several adverse effects on the other States.

The plaintiff also averred that at the behest of the State of Andhra Pradesh, the United Front Government, which was at the Centre, constituted a Committee of four Chief Ministers to examine the issues relating io the construction of Almatti Dam, which committee in tum, decided to constitute an Expert Committee with a representative of the Central Water Commission and Planning Commission, who, however, did not ultimately participate in the proceedings. The said Expert Committee has found that the proposal of the Upper Krishna Project with FRL of 524. 256 meters for Almatti Dam is under consideration and has not been approved by the Government of India, though many canals have been designed and constructed for larger capacity meant for future uses and it is not necessary to build a bigger storage of 227 TMC at Almatti dam with top of shutter at 524. 256 meters. The said Committee had also observed that the FRL on the top of the shutter be fixed for the present at 519 .

6 meters and the gates be manufactured and erected accordingly and this will be adequate to take care of the annual requirements of 173 TMC presently envisaged under the Upper Krishna Project. The said Committee, therefore, suggested the restriction of the height of the dam at 519. 6 meters. The plaintiff however does not accept of the entitlement of the first defendant to use 173 TMC under UKP and the height of the dam at 519. 6 meters. From paragraph 52 onwards, the plaintiff then has made averments indicating the negotiations and further developments in the matter and then states tl1at the -~ Ministry of Power, Government of India having indicated that 'in principle' clearance of construction of Upper Krishna Hydro- electric power project at Almatti, contemplating the height of the dam at 524.

256 meters was contrary to the award of the tribunal, and therefore, the plaintiff-State lodged its objections by letter dated 18th of October, 1996, to which the reply came that 'in principle' clearance is not a techno- economic clearance and it is purely an administrative action to facilitate developmental activities. The plaintiff, · thereafter by its letter dated 18th of December, 1996, requested the Secr~tary, Ministry of Water Resources, Govt. of India to ensure forthwith the publication in the Gazette of India the decision of the Krishna Water Disputes Tribunal i. e. the report dated 24. 12. 1973 and the further report dated 27. 5. 1976 -.. ,.... in its entirety. But since it became apparent that the Defendant No.

1 State of - Karnataka was not at all inclined to resolve the problem by any amicable discussion nor did it desire any effort for mediation being undertaken by anyone whatsoever,the plaintiff had no other alternative but to approach this Court under Article 131 of the Constitution for declarations and injunctions against the Defendants for protection of the rights of the plaintiff State as well as the rights of its inhabitants flowing from the decision of the Krishna Water Disputes Tribunal.

From paragraph 65 onwards, the plaintiff has narrated ~ several facts constituting violations of the decision of the tribunal by the State of Kamataka and from paragraph 69 onwards, the plaintiff has indicated the role played by the Central Government in the matter of allowing the State of Karnataka to raise the height of the dam, which would ultimately lead to violation of the terms and conditions as well as the restrictions in the award of the tribunal and which wouW infringe the rights of the State of Andhra . - Pradesh and its inhabitants. The cause of action for filing the suit has been --- -- TMC at Narainpur will be adequate to take care of annual requirement of 173 TMC envisaged under Upper Krishna Project. In view of our conclusion in O. S.

1of1997 holdin~ that Scheme 'B' is not a decision of the Tribunal, and as such, cannot be implemented by a mandatory order from this Court and the stand of the State of Kamataka before the so called Expert Committee being that they have designed the height of Almatti Dam at 524. 256 m keeping in ,,. view that in the event Scheme 'B' fructifies the State will be able to get the smplus water and store it as a carry over reservoir, as observed by the Tribunal itself, notwithstanding the fact that the plaintiff has failed to establish a case on its own for getting the relief of injunction in relation to the construction of Almatti Dam by the State of Kamataka, it would be reasonable to hold that though the State can have the Dam at Almatti but the height of the said Dam should not be more than 519. 6 m, particularly when the State of Kamataka has ~ not been able to indicate as what is the necessity of having a height of Dam at 524.

256 m when Scheme 'B' is not going to be operated upon immediately. The Upper Krishna Project Stage II, detailed project report of October 1993 which has been exhibited in the present case as PAP 45 also indicates that minimum FRL required to get 173 TMC utilisation is found to be 518. 7 m. It is in that report it has been indicated that it is because of probable maximum flood of 31000 qmx. , the water level is expected to go upto 521 m and, therefore, the proposal is to keep the height of the gate to 521 from the crest level with 2 rats. as the gate height. It may be stated at this stage that the height of the Almatti as approved by the Competent Authority is crest Jevel 509 meter and it is in this context to have the height at FRL 524. 256 m the State of Kamataka has proposed to have the gate height of 15 meters. But as has been .. indicated earlier, since the entire basis of the State of Kamataka to have the ---height of the Dam at 524.

256 mis contingent upon implementation of Scheme 'B' of the Tribunal thereby entitling the State of Kamataka to get its share in f. ' excess water and continue the Almatti Dam as a carry over reservoir and since we have decided against the State of Kamataka in O. S. 1 of 1997 which the State had filed for implementation of Scheme 'B', there is absolutely no justification for the said State to have the Dam height at Almatti of 524. 256 m. We hasten to add that at the same time there cannot be any injunction or . ~ prohibition to the said State of Kamataka for having the Dam height at Almatti upto 519. 6m which would be in the interest of all concerned. Mr. Ganguli, the learned senior counsel, appearing for the State of Andhra Pradesh submitted that the State of Kamataka in the Project Report filed before the Central Water Commission in respect of UKP Stage II, itself indicated that the minimum FRL required at Almatti Reservoir is 519. 60 M ~ as per Exhibit PAP 46.

In the written statement also, the State of Kamataka also indicated that contemplated height of Dam at 524. 256 meters is for additional storage, though for the purpose of generation of power which is non-consumptive use and at a height of 524. 256 meters, it would utili