IN THE MATTER OF :

A

CAUVERY .WATER DISPUTES TRIBUNAL

NOVEMBER 22, 1991

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Constitution of India, 195 0:

Articles 131 and 262-0riginal Jurisdiction of Supreme Court-lnter- State rive~ water dispute-Adjudication of-Excluded from pwview of q Court and vested in Water Ttibunal under the Inter-State Water Disputes Act, 1956-Question of grant of interim relief-Whether could he agi- tated before Court.

Article 143-Advisory Jurisdiction-Whether Court can review its · opinion-Whether I',-esident can refer a question of law already decided D, by the Court-Advisory opinion on Presidential Reference-Nature and effect of

Articles 245,246,248,262, Seventh Schedule, List I-Entries 56 and 97, List //--Entries 14, 17 and 18-Inter-State river water--Karnataka Cauve1y Basin Irrigation Protection Ordinance, 1991/Act No. 2 7 of E 1991--Constitutional validity of-Legislative competence of State Legislature-Whether denuded by Parliamentar)' legislation-Whether State Legislature can change the law declared by Court-Whether can set aside decision of inter-parties and affect their rights and liabilities alone-Whether Inter-State Disj,·utes Act P.nacted under Article 262 or·Entry 56--Distinc- tion inter se between Article 262, Entry 56 of List I and Entry 17 of List ·· ~ II-Executive Order or legislative enactment of State Legislature inte1fer-, : ing with adjudicatory process of Water Tribunal-Whether dnterference with judicial power of State. ..,

Karnataka Cauvery Basin Irrigation frotection ·Urdinance, 19911 Act No.2 7 of 1991: Constitutional validity of G

Inter-State Water Disputes Act, 1956:

Sections 5(2) and 6-lnter-State river water dispute-Order of Tri- i bunal granting interim relief-Whether a report and decision-Whether requires to be published in the official gazette. H

497

498 SUPREME COURT REPORTS [1991] SUPP. 2 ·S.C.R.

A Section 1J~xclusion ofjurisdiction of Courts, including Supreme Court-Question ofgrant of interim relief-Whether falls outside purview of the Section.

' Practice and Procedure: " '

B Supreme Court Rules-Order XL, Rule I-Advisory opinion of Su- preme Court under Article 143 of the Constitution-Whether could be reviewed.

In pursuance of the directions given by this Court in a Writ Petition filed by the Tamil Nadu Ryots' Association, the Union Gov- c ernment, by its notification dated June 2, 1990, constituted the Cauvery Water Disputes Tribunal under Section 4 of the Inter-State Water Disputes Act, 1956 for adjudication of the dispute regarding sharing of water of the inter-State river Cauvery between the States ofKarnataka, the upper riparian State, Tamil Nadu, .the lower riparian State, and Kerala and the Union Territory of Pondicheriry. By another notifi- D cation of the same date, it also referred the water dispute emerging from the Letter of Request lodged by the State of Tamil Nadu under Section 3 of the Inter State Water Disputes Act with the Cenfral Government on the failure of the negotiations between the partres in this regard, for reference of the dispute to a Tribunal for adjudi- cation. E In the Letter of Requesnhe State had made a grievance against construction of works in Karnataka area and the appropriation of water upstream so as to prejudice the interests downstream in the State of Tamil Nadu, an(( also ~ought the implementation of the :'--- agreements of 1892 and 1924, which had been entered into when F most of the areas in these States comprised in the then Presidency of Madras and the then State of Mysore. The last of the agreements had expired in 1974 and though the understand.ing of 1976 had been reached, further negotiations in the matter had failed and hence the State of Tamil Nadu had lodged the aforesaid Letter of Request. G Before the Tribunal, the State of Tamil Nadu submitted an application for interim relief praying that State of Karnataka be directed not to impound or utilise water of Cauvery river beyond the extent impounded or utilised by them as on 31.5.1972, as agreed to by the Chief Ministers of the basin States and the concerned H Union Minister and an order restraining Karnataka from undertak-

CAU\TERY WATER DISPUTES TRIBUNAL 499

ing any ~ew projects, dams, reservoirs, canals and/or from proceed- A ing further with the construction of those already commenced in the Cauvery basin. The Union Territory of Pondicherry also sought a direction both to Karnataka and tamil Nadu to release the water already agreed to during the months of September to March.

Meanwhile, Tamil Nadu filed an urgent petition to direct B Karnataka, as an emergent measure, to release at least 20 TMC of water as the first instalment, pending final orders on their interim application. ·

Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary objection that the Tribunal consti- c tuted under the Act had a limited jurisdiction, and had no inherent powers as an ordinary Civil Court has, and there was no provision of law which authorised or conferred jurisdiction on the Tribunal to grant any interim relief. The Tribunal held that since the question of gran.ting interim relief was not referred to it, the applications for interim relief were not maintainable. D

On appeal by the State of Tamil Nadu and the Union Territory of Pondicherry, this Court held that reliefs prayed fo~ in the appli- cations for interim relief and directions, were covered in the refer- ence and fell within the purview of the dispute referred to it by the Central Government under Section 5 of the Inter-State Water Dis- E putes Act. Accordingly, the Court directed the Tribunal to decide _!~e applications for interim relief and directions on merits.

Rejecting tht objections once again raised by the State of Karnataka, as regards the maintainability of the applications for interim relief, the Tribunal passed an_ order directing the State of F Karnataka, to ensure that 205 TMC water was available in Tamil Nadu's Mettur reservoir every year. Tamil Nadu was also directed to deliver to Pondicherry 6 TMC water. The Tribunal also directed Karnataka not to increase its area under irrigation by the waters of Cauvery, beyond the existing area. The order was to remain opera- tive till the final adjudication of the dispute referred to it. G

The Tribunal's order thus gave rise to the issuance of the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 by the State of Karnataka nullifying the Tribunal's order. The ordi- nance was· subsequently replaced by Act No. 27of1991. H

p. 500

A The State of Karnataka also instituted a suit under Article 131 agafnst the State of Tamil Nadu and others for a declaration that the Tribunal's order granting 'interim relief was without jurisdic- tion and, therefore, null and void, etc.

Under these circumstances, the President of India made a Ref- B erence to this Court under Article 143(1) of the Constitution seek- ing advisory opinion on: (a) whether the Ordinance and the provi- sions thereof were in· accordance with the provisions of the Consti- tution, (b) whether the Tribunal's order constituted a report and a decision within the meaning of Section 5(2) of the Inter-State Water Disputes Act, and whether the same was required to be published by the Government of India in order to make it effective, and {c) whether a Water Disputes Tribunal constituted under the Inter-State Water Disputes Act was competent to grant any relief to the parties to the dispute.

It was contended on behalf of the State of Karnataka that the legislation clearly fell within the competence of the State Legisla-· ture under Entry 17 as well as Entries 14 and 18 of List II in the Seventh Schedule of the Constitution and the State Legislature had every right to legislate on the subject and this legislative power was subject only to Entry 56 of List I which, however, did not denude the States of the power to legislate under Entry 17, and, in the absence of the constitution of a River Board for CaL1very, as envis · aged under Entry 56, the State retained full legislative power to make laws as if Entry 17 had remained untouched; that the execu- tive power of the Union under Article 73 could not extend to any State with respect to matters on which the State alone could 'legis- late, in view of the field having been covered by Article 162 of the F Constitution; that since the Inter-State River Disputes Act enacted under Article 262 of the Constitution did not attract any Entry in List I, it was law essentially meant to provide for the adjudication of a dispute with respect to the use., distribution or control of waters of, or in, any inter-State river or river valley and did not; therefore, step on the toe of Entry 17, that the Ordinance, which became Act G subsequently, only sought to impose by section 3, a duty on the State Government to protect, preserve and maintain irrigation from Cauvery waters in the irrigable areas falling within the various projects specified in the Schedule to the said legislation, and, therefore, the legislation was clearly within the scope of the State's power to legislate and was intra vires the Constitution. A fortiori, the power to legislate conferred on the State Legislature by Entries 14, 17 and 18 of List

CAlNERY WATER DISPUTES TRIBUNAL 501

II, could not be inhibited by an interim order of the Tribunal, since the scheme of the Act envisaged only one final report or decision of

- ~ tl!e Tribunal under section 5(2) which would have to be gazetted under section 6 thereof, and therefore, it was open to the Karnataka Legislature to make a law ignoring or overriding the interim order of the Tribunal; that the scheme of the Act did not envisage the making of an interim order by the Tribunal; once a water dispute was referred to the Tribunal, it must 'investigate' the matters re- ferred to it and forward a report to the Central Government setting out the facts found by it and giving its decision on the matters referred to it, and the Central Government must publish this deci- ..... sion in the official gazette to make it final and binding on the par- ties to the dispute, and since the interim order was not preceded by c such an investigation, the said order could not be described as 'a decision' under section 5(2) of the Act, and consequently, the Ceo- tral Government was under no obligation to publish the interim order, that the words 'any matter appearing to be connected with or relevant to water dispute' employed in section 5(1) of the Act did . not contemplate reference of an interim relief matter, nor could the D same empower the Tribunal to make an interim order pendente lite, .. and, therefore, having regard to the purpose, scope and intendment of the Act, the Tribunlll constituted thereunder had no power or authority to grant any interim relief which would have the effect of adversely interfering with its existing rights, although while finally adjudicating the dispute it could override any executive or legisla- E tive action taken by the State, and since the allocation of flow of waters between the concerned States was generally based on the principle of 'equitable apportionment', it was incumbent on the Tri- bunal to investigate the facts and all relevant materials before de- ciding on the shares of the concerned States which was not possible at the interim stage and hence the legislature had advisedly not F conferred any power on the Tribunal to make an interim order affecting the existing rights of the concerned parties, and that the President could refer any question of law under Article 143 and therefore, also ask the Supreme Court to reconsider anv of its deci- sions. G In its written statement, the State of Kerala, by and large, ..,.__ supported the stand of the State of Kerala. However, subsequently it was submitted that since neither the scheme of the Act conferred any power on the Tribunal to make an interim order nor the scope of Article 262 read with the scheme of Act contemplated making of a Reference in that regard, the only remedy available to a State H

p. 502

A which apprehended any action by the upper riparian State likely to adversely affect the rights of its people, was to move the Supreme Court under Article 131 of the Constitution, notwithstanding the provisions of Article 262 and section 11 of the Act; and accordingly, this Court's view that there was a Reference to the Tribunal for grant of interim relief was not consistent with the true meaning and - B scope of Article 262 and the provisions of the Act and this Court should not feel bound by it.

The State of Tamil Nadu contended that ordinarily a dispute between two or more States would be governed by Article 131 of the Constitution and, subject to the provisions of the Constitution, the c Supreme Court alone would have jurisdiction if and in so far as the .... dispute involved any question whether of law or fact on which the existence or extent of a legal r!ght depended, that the Tribunal was required to perform a purely judicial function which, but for Arti- cle 2-62 and section 11 of the Inter-State Water Disputes Act, would have b~erformed by a court of law, that since tt1e Tribunal was D a substitute for the Supreme Court, it was reasonable to infer that all the powers exercised by the Supreme Court under Article 131 could be exercised by the Tribunal while adjudicating a water dis- pute and, therefore, the ancillary and incidental power to grant interim relief inhered in such a Tribunal without the need for an express provision or any specific reference to it in that behalf; that E apart, the decision of this Court dated 26th April, 1991 that the reference to the Tribunal included the question of grant of interim relief operated as res judicata and was binding on the contesting parties regardless ,of the view that this Court might take on the generality of the question referred for decision; if the question of granting of interim relief formed part of the Referenfe, the Tribu- F nal was duty bound to decide the same and even otherwise, it had inherent jurisdiction to grant interim relief, whether or not the question regarding grant of interim relief was specifically referred, and therefore, its decision would c-onstitute a report under section 5(2) of the Act and was liable to be published in the official Gazette as required by section 6; that if there was any ambiguity in the interim order the same could be taken care of under section 5(3) of, the Act; that the Ordinance in question was ultra 1 ires the Constitu- ' 1

tion for diverse reasons; the real object and purpose was to unilat.:. erally nullify the Tribunal's interim order after having failed in the first round of litigation; the State of Karnataka had no right to unilaterally decide the quantum of water it would appropriate or the extent to which it would diminish the flow of Cauvery waters to

CAUVERY WATER DISPUTES TRIBUNAL 503

the State of Tamil Nadu and thereby. deny to the people of Tamil A Nadu their rightful share in the Cauvery waters; the right to 'just and reasonable use of water being a matter for adjudication by the Tribunal, no single State could, by the use of its legislative power arrogate unto itself the judicial function of equitable apportionment and decide for itself the quantum of water it would use from the inter-State river regardless of the prejudice it would cause to the other State by its unilateral action; such a power could not be read in Entry 17 as it would be, destructive of the principle that such water disputes were justiciable and must be left for adjudication by an independent and impartial special forum to which it was re- ferred, namely, the Tribunal constituted for resolving the dispute, and not by unilateral executive or legislative interfer~ce, an~, therefore, the object of the legislation not being bona fide, the same could not be allowed to stand as it had the effect of overruling a judicial order · passed by a Tribunal specially appointed to adjudicate on the water dispute between the parties thereto; it sought to override or neu- tralize the law enacted by Parliament in exercise of power con- ferred by Article 262 ~and not Article 246 read with the relevant entryin the Seventh Schedule) of the Constitution; a State Legisla- ture could have no power to legislate with regard to a· water dispute as it would be incongruous to confer or infer such power in a State Legislature to destroy what a judicial body has dQne under a C~n- tral law; it had extra-territorial operation, in that, it directly im- pinged on the rights of the people of Tamil Nadu to the use ,of E Cauvery waters; it was also contrary to the Rule of Law, and a power not comprehended even by Article 262 could not be read into the legislative power of the State for. it would pervert the basic concept of justice; and was also violative of the fundamental rights of the inhabitants of Tamil Nadu guaranteed by Articles 14 and 21 of the Constitution, in that, the action of Karnataka was wholly F arbitrary and in total disregard of the right to life of those inhabit- ants in Tamil Nadu who survived on Cauvery waters; it was further contended that in a civilisc<!_society governed by the Rule of Law, a party to a 'lis' -water dispute- could not be allowed to arrogat~ to itself the right to decide on the dispute or to nullify an interim order made by a Tribunal in obedience to the decision of the apex · G court, by abusing the legislative power under Entry 17 under which the legislation purported to be; moreover, the jurisdiction of tliis Court under Article 143 of the Constitution was discretionary and this Court should refrain from answering a Reference which was in general terms without background facts and was likely to entail a roving inquiry which may ultimately prove academic only; secondly, H

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p. 504

A the State of Karnataka had immediately after the interim order instituted a suit in this. Court in which it had prayed for a declara- tion that the interim order of the Tribunal dated 25th June, 1991 was without jurisdiction, null and void, and for setting aside the said order; while on the one hand, the decision of this Court had become final and was res judicata between the parties thereto, on B the other hand, ithe State of Karnataka was raking up the same question of jurisdiction before this Court in a substantive suit with a view to over-reaching this Court's earlier order; the Presidential

.. Reference in terms referred to disputes and differences having arisen out of the Tribunal's interim order which was said to have given rise to a public controversy likely to result in undesirable conse- c quences; 'such matters could be effectively countel'"ed by the con- cerned Government and did not call for a Presidential Refe~ence; if there was any doubt or difficulty in the implementation of the order in question, recourse could always be had to section 5(3) of the Act and hence,' this Court should refuse to answer the Reference.

D The U.ition Territory of Pondicherry, contended that the prom- ulgation of the Ordinance (now Act) was intende~ to fur~'1er pr~­ t.ract the long standing water dispute which came to '1e referr~d tp the Tribunal only after this Court issued a mand~~u~ ~!1 th?t behalf and was likely to prejudicially ·affect the interest Mme State as well as the farmers and other inhabitants who utilised th\? water from rh'er Cauvery; that the said legislation was unconstitutional and was a piece of colourable legislation, that in the case of flowing water the riparian States· had no ownership or proprietary right therein except in the usufruct thereof and, therefore, the power to legislate therein under Entry 17 of List II could extend to only the usufructuary right subject to the right of a riparian State to get the customary quantity of water; that the Ordinance was also yoid for re·pugnancy, being in conflict with the Central legislation, and also violative of Article 21 of the Constitution as it was intended to diminish the supply of water to Tamil Nadu and Pondicherry, which was also against the spirit of Articles 38 and 39 of the Constitution, that sii1t"e the water dispute referred to the Tribunal comprised the issul' rt.>garding the grant of interim relief, as held by this Court, the interim order made by the Tribunal cpnstituted a report within the meaning of section 5(2) of the Act and, consequently, the Central Government was obliged to publish it, as required by section 6 of the Act; and when so published it would operate as a dccisit>n i11 rem: hut even without put:lication it was binding on Karnataka as a dcrhi11n in jwrs01w111, since the jurisdiction of all courts including

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CAUVERY WATER DISPUTES TRIBUNAL 505 ' the Supreme Court was taken away by virtue· of section 11 of the A Act read with Article 262(2) of the Constitution, and the Tribunal had all attributes of a Court; it was required to discharge the judi- . cial function of adjudicating a water dispute between two or more States and must be deemed to possess the inherent incidental and ancillary power to grant interim relief which inhered in all such· judicial bodies, and absence of an express provision in that behalf B did not detract from the view that such power inhered in a Tribu- nal.

Six intervention applications were also filed by· different per- sons and bodies from Karnataka, including the Advocate General of the State in support of the case of Karnataka. C 1 An. intervention application raising the contentions similar to those of State of Tamil Nadu was also filed by the Tamil Nadu Ryots' Association which had preferred the original Writ Petition on which a mandate to constitute the Tribunal was given. [) Answering the Reference, this Court,

1.2 The object of the provisions of the Ordinance is obvious coming close on the Order of the Tribunal and in the context of the stand taken by the State of Karnataka that the Tribunal has no pow·er or jurisdiction to pass any interim relief, it is to override the said decision of the Tribunal and its implementation. The Ordi- nance has thus the effect of defying and nullifying any interim order .of the Tribunal appointed under a law of the Parliament. The other effect of the Ordinan'ce is to reserve to the State of Karnataka exclusively the right t? appropriate as much of the water of river Cauvery and its tributaries as it deems requisite and in a manner and at periods it deems fit and proper, although pending final adju- dication by the Tribunal. (546 F-G]

1.3 The Ordinance affects the jurisdiction of the Tribunal ap~ pointed under the Central Act, viz., the Inter-State Water Disputes Act, which has been made under Article 262 of the Constitution. H

p. 506

A The State of K~rnataka has arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the in- terim order or not and whether the order is binding on it or not. The State has presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the con- B sequences of such action on the lower riparian States, that it has superior rights over the said waters and it can deal with them in any manner, and the lower riparian States have no equitable rights and that it is th~ sole judge as to the share of the other riparian States in the said waters. Moreover, it has assumed the role of a judge in its own cause. [552 C, F-G] c 1.4 Apart from the fact that the Ordinance directly nullifies the decision of the Tribunal, it also challenges the decision of this Court, which has ruled that the Tribunal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordinance further has an extra-territorial operation inas- D much as it interferes with the equitable rights of Tamil---Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Ordinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly un- constitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is E made, but being also in conflict with the judicial power of the State. [552 H, 553 A) 1.5 The legislature can change the basis on which a decision is given by the Court and thus change tlie law in general, which will affect a class of persons and events at large but it cannot set aside an individual decision inter-parties and affect their rights and li- F abilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal. [554 H, 555 A) Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co., Ltd. etc. [1971) 1 SCR 288; Madan Mohan Pathak v. G Union of India & Ors. etc., [1978] 3 SCR 334 and P.Sambamurthy & Ors. etc. etc. v. State of Andhra Pradesh & Anr., (1987) 1 SCR 879, referred to.

1.6 Any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to

CAtNERY WATER DISPUTES TRIBUNAL 507

nullify the order of the Tribunal, it impinges upon the judicial power of the State. [555 C-D] 1.7 Further, admittedly, the effect of the Ordinance is to af- fect the flow of the waters of the river Cauvery into. the territory of Tamil Nadu and Pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra-territorial operation, and is thus beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1) of the Constitution. [555 E] 1.8 The Ordinance is also agains.t the basic tenets of the rule of law inasmuch as the State of'Karnataka by issuing the Ordinance has sought to take law in its own hand and to be above the law. Such an act is an invitation to lawlessness and anarchy, inasmuch as the c Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an D Act of Parliament but also the provisions of the Constitution. If the power of a ~tate to issue such an Ordinance i~ upheld it will lead to the break down of the Constitutional mechanism and affect the unity and integrity of the nation. [SSS F-G] -- 2.1 Under Article 131, this Court has original jurisdiction, among E other things, in any dispute between two or more States where the dispute involves any question whether of law or fact on the exist- ence and extent of which a legal right depends except those matters which are specifically excluded from the said jurisdiction by the proviso. However, the Parliament has also been given power by Artiele 262 of the Constitution to provide by law that neither the F Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint with respect to the use, distribu- tion or control of the water of, or in, any inter-State river or river valley. Section 11 of the Inter-State Water Disputes Act, 1956, has in terms provided for such exclusion of the jurisdiction of the Courts. Thus, Section 11 of the Act read with Article 262 excludes original jurisdiction of the inter-State water dispute which may be referred to the Tribunal established. under the Act from the purview of any Court including the ·Supreme Court under Article 131. [544 H, 545 ·A-BJ .

2.2 The Inter-State Water Disputes Act, 1956 has been enacted only under Article 262 of the Constitution, and not under Entry 56,

p. 508

A as it relates to the adjudication of the disputes and with no other aspect either of the inter-State river as a whole or of the waters in it. [550 G] .

2;3 Entry 56 speaks of regulation and development of inter- State rivers and river valleys and does not relate to the disputes B between the riparian States with regard to the s·ame and adjudica- tion thereof. Even assuming that the .expression "regulation and development" would in its~width, include resolution of disputes aris- ing out therefrom and a provision for adjudicating them, the Act does not make the declaration required under Entry 56. This is obviously not an accidental omission, but a deliberate disregard of c the Entry since it is not applicable to the subject-matter of the legislation. Further no Entry in either of the 'three Lists refers spe- cifically to the adjudication of disputes with regard to inter-State river waters, the reason being that Article 262 of the Constitution specifically provides for such adjudication. [547 A-CJ

D 2.4 An analysis of Article 262 shows that an exclusive power is given to the Parliament to enact a law providing for the adjudica- tion of disputes or complaints relating to "use, distribution or con- trol" of the waters of, or in any inter-State- river or river valley. The words "use", "distribution" and "control" are of wide import and may include regulation and development of the said waters. E The provisions clearly indicate the amplitude of the scope of adjudi- cation, inasmuch as it would take within its sweep the determination of the exterit, and the manner, of the use of the said waters, and·the power to give directions in respect of the same. [508 F-G]

2.5 The language of the Article has, further to be distinguished from that of Entry 56 and Entry 17. Whereas Article 262(1) speaks of atljudication of any dispute or complaint and that too with re- spect to the use, distribution or control of the waters of or in 1any inter~State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys. Thus, the dis- tinction between Article 262 and Entry 56 is that whereas former speaks of adjudication of disputes with respect to use, distribution ."- or control of the waters of any inter-State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys. Entry 17 likewise speaks of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry

H 56. It does not speak either of adjudication of disputes or of an

CAuv.E.KY WATER DISPUTES TRIBUNAL 509

inter-State river as a whole and State can only deal with water within its territory. [547 H, 548 A-CJ

2.6 The Inter-State Disputes Act, 1956 is made pursuant fo. the pro:visions of Article ·262 specifically for adj udfration of the disputes between the riparian States with regard to the use, distribution or control of the waters of the inter-State rivers or river valleys, and is not relatable to Entry 56 and, therefore, does not cover either the field occupied by Entry 56 or by Entry 17. Since the subject of adjudication of the said disputes is taken care of specifically and exclusively by Article 262, by necessary implication the subject stands excluded from the field covered by Entries 56 and 17. It is not, therefore, permissible either for the Parliament under Entry 56 or for a State legislature under Entry 17 to enact a legislation provid- ing for adjudication of the said disputes or in any manner affecting or interfering with the adjudication established by law under Arti- cle 262. This is apart from the fact that the State legislature would even otherwise be incompetent to provide .for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the'inter-State river waters beyond its territory or with regard to disputes between itself and another State relating to the use, distributiOn or control of such waters. Any such act on its part will be extra-territorial in nature and, therefore, beyond its competence. [549 C-F] E

2. 7 It is not correct to say that it is Entry 97 of the Union List, which deals with the topic of use, distribution and control of the waters of an inter-State river. This is so bec~use the expression "regulation and deveiopment of inter-State rivers and river valleys" in Entry 56 would include the use, distribution and allocation of the waters of the inter-State rivers and river valleys between different F : riparian States. Otherwise, the intention of the Constituent Assem- bly to' provide for the Union to take over the regulation and deve- lopment under its co'ntrol makes no sense and serves no purpose. Further, the River Boards Act, 1956, which is admittedly enacted under Entry 56 for the regulation and development of inter-State rivers and river valleys, does cover the field of the use, distribution G and allocation -of the waters oflhe inter-State rivers and river val- leys, indicating .that t~e expression "regulation and development" in Entry 56 has legislat.ively also been construed to include the use, distribution or allocation of the waters of the inter-State rivers and river valleys between riparian States. To contain the operation of Entry 17 -to the waters of an inter-State river and river valleys H

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p. 510

A within the boundaries of a State and to deny the competence to the State legislature to interfere with or to affect or to extend to the use, distribution and allocation of the waters of such river or river valley beyond its territory, directly or indirectly, it is not necessary to fall back on the residuary Entry 97, as an appropriate declara- tion under Entry 56 would suffice. The very basis Of a federal Con- B stitution mandates such interpretation and would not bear an inter- pretation to the contrary which will destroy the constitutional scheme and the Constitution itself. Although, therefore, it is possible techni- cally to separate the "regulation and development" of the inter- state river and river valley from the "use, distribution and alloca- tion" of its waters, it is neither warrante~ nor necessary to do so. c [549 G, 550, B-F) 2.8 Though the waters of an inter-State river pass through the territories of the riparian States such waters cannot be said to be located in any one State. They. are in a state of flow and no State can claim exclusive ownership of such waters so as to deprive the- D other States of their equitable share. Hence in respect of .such wa- ters, no State can effectively legislate for the use of such waters since its legislative power does no~ extend beyond its territories. It is further an acknowledged priPciple of distribution and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State. What the equitable E share will be will depend upon the facts of each case. (551 H, 552 A-R)

3.1 The order of the Tribunal dated 25th June, 1991 granting interim relief constitutes a report and a decision within the meaning of Section 5(2) of the Inter-State Water Disputes Act, 1956. The said order is, therefore, required to be published by the Centr.al Govern- F ment in the Official Gazette under Section 6 of the Act in order to make it effective. [565 F-G] 3.2 Sub-section (1) of Section S expressly empowers the Cen- tral Government to refer to the Tribunal not only the main water dispute, but any matter appearing to be connected with or relevant G to it. A request for an iitterim relief, whether in the nature of man- datory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute. In fact, this Court, by its decision of April 26, 1991, has in terms held that the request of the St~te of H Tamil Nadu for granting interim relief had been referred by the Central Government to the Tribunal and directed the Tribunal to

CAUVERY WATER DISPUTES TRIBUNAL 511

consider the request on merits, the same being a part of the Refer- A ence. Hence the order of the Tribunal will be a report and decision within the meaning of Section 5(2) and would have, therefore, to be published under Section 6 of the Act in order to make it effective. [S62 A-CJ

3.3 It is not correct to say that since the Order does not say B that it is a report and decision it is not so under Section 5(2) of the Act. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. The contents of the order clearly show that it is a report and a decision within the meaning of Section 5(2). [563 BJ C 3.4 The scope of the investigation that a Tribunal or a Court makes at the stage of passing an interim order is limited compared to that made before making the final adjudication. The eXtent and the nature of the investigation and the degree of satisfaction re- quired for granting or rejecting the application for interim relief D !

would depend upon the nature of the dispute, and the circumstances in each case. No hard and fast rule can be laid down in this respect. However, no Tribunal or court is prevented or prohibited from pass- ing interim orders on the ground that it does not have at that stage all the material required to take the final decision. To read such an, inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is made. l{ence, the Tribunal constituted under the Act is not prevented from passing an interim order or direction, or granting an interim relief pursuant to the reference merely because at the interim stage it has not carried out a complete investigation which is required to be done before it makes its final report and gives its final decision. It can pass interim orders on such material as according to it is appropri- ate to the nature of the interim order. [563 E-H]

3.5 The interim orders passed or reliefs granted by the Tribu- nal 'when they are not of purely procedural nature and have to be implemented by the parties to make them effective, are deemed to be a report and a decision within the meaning of Sections 5(2) and 6 G of tl>e Act. (564 A]

3.6 In the instant case, Order of the Tribunal discusses the material on the basis of which it is made and gives a direction to the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC of water is available in Tamil Nadu's H

p. 512

A Mettur reservoir in a year from June to May. It maKes the order effective from 1st July, 1991 and also lays down a time-table to regulate the release of water from month to month. It also provides L for adjustment of the supply of water during the said period. It further directs the State of Tamil Nadu to deliver 6 TMC of water for the Karaikal region of the Union Territory of Pondicherry. In B addit.ion, it directs the State of Karnataka not to increase its area under irrigation by the waters of the river Cauvery beyond the existing 11.2 lakh acres. It further declares that it will remain op- erative till the final adjudication of the dispute. '.fhus, the order is not meant to be merely declaratory in nature but is meant to. be implemented and given effect to by the parties. Hence, the.order in c question constitutes a report a.nd a decision within the meaning of Section 5(2) and is required to be published by the Central Govern- ment under Section 6 of the Act in order to be binding on the parties and to make it effective. [564 B-D)1 . "

3.7 It is not correct to say that Section 5(3) of the Act cannot apply to the interim orders as it is only the fina! decision· which is meant to undergo the second reference to the Tribunal provided for in it. If the Tribunal has power to make an interim decision when a reference for the same is made, that decision will also attract the ... said provisions. The Central Government or any State Government after considering even such decision may require an explanation or guidance from the Tribunal as stated in the said provisions and · such explanation and guidance may be sought within three months from the. date of such decision . .The Tribunal may then reconsider the decision and forward to the Central Government· a further· re- port giving such explanation or guidance as it deems fit. Jn such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective. Therefore, there is no reason why the provisions of Section 5(3) should prevent or incapacitate the Tribunal from passing the interim order. Once a decision, whether interim or final, is made ·under Section 5(2) it attracts· the provi- sions .both of sub-section (3) of that Section as well as the provisions of Section 6 of the Act. (564 E-G)

4.1 A Water Disputes Tribunal constituted under the Inter- State Water Disputes Act is competent to grant any interim relief to the parties to the dispute when a reference is made by the Central Government. Whether the Tribunal ~as power to grant relief when no reference is made for such relief is a question which does n.ot

CAUVERY WATER DISPUTES TRIBUNAL 513

arise in the facts and circumstances under which the Reference is made. (565 H, 566 A]

.-· 4.2 This Court has held by its order dated 26th April, 1991 .- that the Central Government had made a reference to the Tribunal for the consideration of the claim for interim relief prayed for by the State of Tamil Nadu and hence t~e Tribunal had jurisdiction to consider the said request being a part of the Reference itself. Im- plicit in the said decision is the finding that the subject of interim relief is a matter connected with or relevant to the water dispute within the meaning of Section 5(1) of the Act. Hence the Central Government could refer the matter of granting interim relief to the Tribunal for adjudication. Although this Court has kept open the question, viz., whether the Tribunal has incidental, ancillary, inher- ent or implied power to grant the interim relief when no reference for grant of such relief is made to it, it has in terms concluded the second part of the question. [557 A-C]

4.3 It is impermissible for this Court to sit in appeal even in adjudicatory jurisdiction, nor is it competent for the President to invest this Court with an appellate jurisdiction, over the said decision through a Reference under Article 143 of the Constitution. [557 DJ

4.4 It is not correct to say that the question of grant of interim relief falls outside the purview of the provisions of Section 11 of the E Inter-State Water Dispute Act and can be agitated under Article 131 of the Constitution. The effect of the provisions of Section 11 of the Act read with Article 262· of the Constitution is that the entire judicial power of the State, and, therefore, of the courts including that of the Supreme Court to adjudicate upon original dispute or complaint with respect to the use, distribution or control of the water of, or in any inter State river or river valleys has been vested in the Tribunal appointed under Section 4 of the said Act. [555 B-DI

5. It is not correct to say that the President can refer any question of law under Article 143 and, therefore, also ask this Court j._ to reconsider any of its decisions. In the first instance, the language of clause (1) of Article 143 is opposed to such a proposition. The -,, clause empowers the President to refer for this Court's opinion a question of law or fact which has arisen or is likely to arise. When this Court in its adjudicatory jurisdiction. pronounces its authorit:t- tive opinion on a question of law, it cannot he said I hat there is any doubt about the question of law or the sam1• is re.\ i11tef.:l'tl so as to H

p. 514

A· require the President to know what the true position of law on the question is. The decision of this Court on a question of law is bind- ing on all courts and authorities. Hence, und2r the said clause the President cu refer a question of law only when this court has not decided it. Secondly, a decision given by this Court can be reviewed ·• only under article 137 read with Rule I of Order XL of the the B Supreme Court Rules 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delive.red in C the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. [557 E-H, 558 A-CJ

The Delhi Laws Act, 1912, The Ajmer-Menvara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950 (1951) SCR 747, distinguished. D The Bengal Immunity Company Ltd. v. The State of Bihar & Ors., (1955] 2 SCR 603, relied on.

Jatindra Nath Gupca v. 1he Province of Bihar & Ors., (1949] FCR 595; Hari Vishnu Kamath v. Syed Ahmad lshaque & Ors., f1955) 1 SCR E 1104; Delhi Judicial Service Association. Tis Hazari Court, Delhi etc. v. Sta 1e of Gujarat & Ors. etc., JT (1991) 3 SC 617and .State o.f Bombay v. Gajanan Mahadev Badley, AIR 195-' Bomhay 351, refer.red to.

5.2 Under the Constitution appellate jurisdiction owr the ear- lier decision does not vest in this Court; nor can it be vested in it hy F the President under Article 143. If it is accepted that the President can ask this Court to reconsider any of its decisions it would mean that the advisory jurisdiction under Artidt: 143 is also an appellate jurisdiction of this Court over its own derision between the same parties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143 it would he a G serious inroad into the independence of judiciary. [558 DJ

5.3 The facts in A.R.Antulay's case arc peculiar and the deci- sion therein has to be confined to those special facts. Further the decision heing inter-parties operates as res j1uliwt11 and cannot be H reopened. [560 G, 561 EJ

C:AUVERY WATER DlSPUTES TRIBUNAL [SAWANf, J.] 515

A.R.Antu/ay v. R.S. Nayak & Anr., (1988) Suppl. 1 SCR 1 and A R.S.Nayak v. A. R. Antulay, [1984) 2 SCR 495, referred to.

~ 6. No opinion is expressed on the question whether the opinion -" given by this Court on a Presidential Reference under Article 143 of the Constitution, such as the present one, is binding on all courts, firstly, because the question does not form part of the Reference, B and, secondly, any opinion expressed on it would again be advisory. However, adjudicatively it has been held by this Court that the advisory opinion is entitled to due weight and respect and normally, it will be followed. The said view holds the field today and may usefully continue to do so till a more opportune time. [S6S C-D] ...-. c AD YI SO RY WRISDICTION: Special Reference No. 1 of 199 L

(Under Article 143 of the Constitution of India).

G. Ramaswamy, Attorney General, V.R.Reddy, Addi. Solicitor Gen~ era!, F.S. Nariman, T.R. Andhyarujina, Dr. Y.S. Chitale, S.S. Javali, K. D Parasaran, A.K. Ganguli, K.K. Venugopal, A.S. Nambiar, Shanti Bhushan, P.P. Rao, P.P. Muthanna, K. Subramanian, Curiae Joseph, N.N.Gangadeb, Ms. A. Subhashini, Ms. Niranjana Singh, M.Veerappa, Subhash Shamrn, Mohan Katarki, Atul Chitale, K.H. Nobin Singh, Subbanna, A. Subba Rao, G. Umapathy, E.C Agarwala, P.N. Ramalingam, Smt. Shante Vasudevan, P. Krishnamurthy, P.K. Manohar, K.V. Viswanathan, Shalid E Rizvi, Ashok Mukhoty, Mrs: Sangeeta Garg, Jayant Bhushan, T.T. Kunhikanan, M.D.B. Raju, G. Prabhakar, N. Ganpathi, S.R. Bhat, P. Mahale and P.R. Famasesh for the appearing parties. -

;, A.K. Sen, Venkataraman and C.S. Vaidyanathan for the Intervener. F. The Report of the Court was delivered by

SAWANT, J. On July 27, 1991 the President, under Article 143 of the Constitution, referred to this Court three questions for its opinion. The Reference reads as follows. : G ·-'\ "Whereas, in exercise of the powers conferred by Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred -....,,, to as "the Act"). the Central Government constituted a Water Disputes Tribunal Called "the Cauvery Water Disputes Tri\1u- nal" (hereinafter called "the Tribunal") by a notification datdd 2 June. 1990, a copy whereof is annexed hereto, for the adj udi- H

p. 516

A cation of the Water Dispute regarding the Inter-State River Cauvery; WHEREAS on 25 June 1991, the Tribunal passed an interim Order (hereinafter ref~rred to as "the Order''), a copy whereof is annexed itereto; B WHEREAS, differences have arisen with regard to certain aspects of the Order; WHEREAS, on 25 July 1991, the Governor ofKarnataka prom- ulgated the Karnataka Cauvery Basin Irrigation Protection Or- dinance, 1991 (hereinafter referred to as "the Ordinance"), a c copy whereof is annexed hereto; WHEREAS, doubts have been expressed with regard to the constitutional validity of the Ordinance and its provisions; WHEREAS, there is likelihood of the constitutional validity of the provisions of the Ordinance, and any action taken thereun- D der, being challenged in Courts of law involving protracted and avoidable litigation; WHEREAS, the said differences and doubts have given rise to a public controversy which ·may lead to undesirable conse- quences; E AND· WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have arisen and are of such nature and of such public impoflmce that it is expedient to obtain the opinion of the Supreme Court of India thereon; ..... NOW, THEREFORE, in exercise of the powers conferred upon me by clause (I) of Article 143 of the Constitution of India, I, Ramaswamy Venkataraman, President of India, hereby refer the following question to the Supreme Court of India for con- sideration and report thereon, namely: (I) Whether the Ordinance and the provisions thereof are in accordance with the provisions of the Constitution; (2) (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of section 5 (2) of the Act; and -\ : (ii) Whether the Order of the Tribunal is required to be published by the Central Government in order to make it \ effective;

CAlNERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 517

(3) Whether the Water Disputes Tribunal constituted under ,A the Act is competent to grant any interim relief to the parties to the dispute."

To appreciate the significance of the questions referred and our answers to them, it is necessary to understand the factual background which has led to the Reference.

The river Cauvery is an inter-State river and is one of the major rivers of the Southern Peninsula. The basin area of the river and its tribu- taries has substantial spread-over within the territories of the two States, namely, Karnataka and Tamil Nadu, Kamataka being the upper riparian State and Tamil Nadu being the lower riparian State. The other areas which are the beneficiaries of the river water are the territories comprised 'C in the State of Kerala and in the Union Territory of Pondicherry. The total length of the river from its head to its outflow into the Bay of Bengal is about 802 kms. It travels about 381 kms. in Southem-Eastemly direction before it reaches the border of Karnataka and Tamil Nadu. It also consti- tutes boundary between the said two States to an extent about 64 kms. and then traverses a distance of about 357 kms. in Tarriil Nadu before joining b the sea. ·

There were two agreements of 1892 and 1924 for sharing the water of the river between the areas .which are predominantly today comprised in the State of Kamataka and Tamil Nadu,. and which were at the time of the agreements comprised in the then Presidency of Madras on the one E ·hand and the State of Mysore on the other. The last agreement expired in

1974. The river presently covers three States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Pondicherry. The present State of ,.., Tamil Nadu has an area of about 43,868 sq. Jans. of the Cauvery River basin, reducing the basin area which at the time of the agreement was about 49, 136 sq. kms. As against this the basin area of the said river F which was about 28,887 sq. kms. in the State of Mysore has increased to about 34,273 sq. kms. in the present State of Karnataka\.

The contributions made to the flows of the Cauvery River by Karnataka. Tamil Nadu and Kerala, according to the State of Karnataka is 425 TMC, 252 TMC and 113 TMC respectively ·together amounting to 790 TMC. G According to the State of Tamil Nadu, the contributions of the three States respectively are 392 TMC, 222 TMC and 126 TMC respectively together amounting to 740 TMC. The Study Team appointed by the Central Gov- ernment in 1974 worked out the appropriations of the respective States as follows: Karnataka-177 TMC, Tamil Nadu including Pondicherr~89 TMC and Kerala-5 TMC. B.

p. 518

A In 1956 the Parliament enacted the River Boards Act, 1956 for the purpose of regulation and development of inter-State rivers and river val.,. leys and also the Inter-State Water Disputes Act, 1956 for adjudication of ·disputes with regard to the use, distribution or control etc. of the said waters. In 1970 Tamil Nadu invoked the provisions of Section 3 of the Inter-State Water Disputes Act, 1956 and requested the Central Govern- B ment for reference of the dispute between the two States, viz. Tamil Nadu and Kamataka to a Tribunal under the Act. The Central Government initiated negotiations between the two States. Simultaneously, Tamil Nadu moved this Court by means of a suit wider Article 131 of the Constitution being Suit No. I of 1971 seeking a direction to the Union Government to constifute a Tribunal and to refer the dispute to it. In the said suit, Tamil c Nadu applied for an interim order to restrain the S!ate of Karnataka from proceeding with and executing the projects mentioned therein. This Court by its Order of 25th January, 1971 dismissed .the application for interim relief. It appears that the negotiations between the two states which were D going on in the meanwhile, resulted in the constitution of a Fact Finding Committee in June 1972 which was set up to ascertain facts, amongst others as to the availability of water resources, the extent of utilisation and the nature of the areas in the respective States within the river basin, and their requirements. In view of the constitution of the Committee, Tamil Nadu withdrew its suit. E. The. Fact Finding Committee submitted its Reports in December, 1972, and August 1973. A Central Study Team headed by Shri CC. Patel, then Addi. Secretary to Government of India, in the Ministry of Irrigation was also set up to examine the question of assessing the savings of water in the existing and. planned projects of the three States in the Cauvery F basin. The recommendation of the Study Team on improvement and mod- ernisation of the irrigation system including the strengthening of the works and the lining of channels, integrated operations of the reservoirs within the Cauvery basin., scientific assessment of water requirement in the com- mand area and for monitoring the releases from the reservoirs for an efficient tie up between the rainfall and command, water requirement and release were announced at the Inter-State Conference of June 1974. r-·

Further negotiations resulted in what is known as "the 1976 Under- ,-- standing". This Understanding envisaged the apportionment of the surplus \- water in the ratio of 30:53: 17 amongest the States of Tamil Nadu, Karnataka and Kerala respectively. In the case of savings, the Study Team proposed the apportionment in the ratio of 87 TMC to Kamataka, 4 TMC to Tamil Nadu and 34 TMC to Kerala.

1

' CAlNERY WATER DISPUTES TRIBUNAL [SAWANI, J.] 519

It appears that in spite of the information gathered through the Fact A Finding Committee and the Study Team set up by the Union Government, the negotiations were not fruitful. In 1983, Tamil Nadu Ryots Association presented a petition to this Court under Article 3.2 of the Constitution being Writ Petition No. 13347 of 1983. The petition sought issue of a writ of mandamus to the Central Government requiring it to refer the dispute to a Tribunal under the Act. The petition was also accompanied by an B application seeking interim relief. The State of Tamil Nadu supported the Writ Petition. Notices were issued to the respondents including the Union Government and the State of Karanataka. The petition remained pending in this Court for nearly seven years. No application for interim relief was moved during this period.

Although the inter-State meetings continued to be held during this period, nothing worthwhile emerged out of them. Hence, in June 1986, the State of Tamil Nadu lodged a Letter of Request under Section 3 of the Act with the Central Government for the Constitution of a Tribunal and for reference of the water dispute for adjudication to it. In the said letter, Tamil Nadu primarily made a grievance against the construction of works D in the Karnataka area and the anpropriaion of water upstream so as to prejudice the interests down-stream in the State of Tamil Nadu. It also sought the implementation of the agreements of 1892 and 1924 which had expired in 197 4.

At the hearing of the Writ Petition filed by the Tamil Nadu Ryots E Association, the Central Government left the matter to the Court. This Court taking into consideration the course of negotiations and the length of time which had passed, by its judgment dated May 4, 1990 held that the negotiations between the two States had failed and directed the Union Government to constitute a Tribunal under Section 4 of the Act. In pursu- ance of the directions given by this Court, the Union Government by its F notification dated June 2, 1990, constituted the Cauvery Water Disputes Tribunal and by another Notification of the even date referred to it the water dispute emerging from Tamil Nadu's Letter of Request dated July 6, 1986.

2. The Cauvery Water Disputes Tribunal ·(hereinafter referred to as the G "Tribunal") commenced its first sitting on 20th July, 1990. On that day, Tamil Nadu submitted a letter before the Tribunal seeking interim reliefs. The Tribunal directed Tamil Nadu to submit a proper application. There- upon Tamil Nadu and the Union Territory of Pondicherry submitted two separate applications for interim reliefs being CMP Nos. 4 and 5 of 1990. H

520 SUPREME COURT REPORTS {19911 SUPP.2 S.C.R.

A The interim relief claimed by Tamil Nadu was that Kamataka be directed not to impound or utilise water of Cauvery river beyond the extent impounded or utilised by them as on 31-5-1972, as agreed to by the Chief Ministers of the basin States and the Union Minister for Irrigation and Powers. It further sought passing of an order restraining Kamataka . from undertaking any new projects, dams, reservoirs, canals and/or from B proceeding further with the construction of projects, dams, reservoirs, canals etc. in the Cauvery basin.

In its application for interim relief Pondicharry sought a direction from the Tribunal both to Kamataka and Tamil Nadu to release the water already agreed to i.e., 9.355 TMC during the months of September to C March.

The Tribunal considered simultaneously both the applications for interim reliefs as well as the procedure governing the trial of the main dispute. It directed the disputant States to file their pleading by way of statements of cases and also required the States of Kamataka and Kerala D. to submit their replies to the applications for interim reliefs made by tamil Nadu and Pondicherry. By September 1990, all the disputant States submitted their first round of pleadings or statements of cases. By Novem- ber 1990, Karnataka and Kerala also submitted their replies to the applica- tions for interim reliefs. The Tribunal gave time to the States to submit their respective counter statements in reply to the Statements of cases filed earlier in the main dispute.

Jt appears that before the disputant states submitted their counter statements in the main dispute, the Tribunal heard the applications for interim reliefs since Tamil Nadu had, in the meanwhile, filed an applica- tion being CMP No.9 of 1990 as an urgent petition to direct Karnataka as an emergent measure to release at least 2~ TMC of water as the first instalment, pending final orders on their interim application CMP No.4/

90. It appears that this application was filed on the ground that the samba crop could not be sustained without additional supplies at Mettur reservoir in the Tami! Nadu State. Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary objection to the jurisdic- G tion of the Tribunal to entertain the said application and to grant any interim relief. The preliminary objection was that the Tribunal constituted under Act, had a limited jurisdiction. It had no inherent powers as an ordinary Civil Court bas, and there was no provision of law which author- ised or conferred jurisdiction .on the Tribunal to grant any interim relief. The Tribunal heard the parties both on the preliminary objection as well H

CAlNERY WATER DISPUTES TRIBUNAL [SA WANT, J.) 521

as <;n merits, and by its Order of January 5, 1991, held, among other A

- things, as follows :-

" ...... This Act is a complete code in so far as the reference of a dispute is concerned. In the circumstances, in our opinion, the Tribunal is authorised to decide only the 'water dispute' or disputes which have been referred to it. If the Central Govern- B ment is of the opinion that there is any other matter connected. with or relevant to the ·water dispute' which has already been referred to the Tribunal, it is always open to the Central Gov- . ernment to refer also the said matter as a dispute to the Tribu- nal constituted under Section 4 of the Act. Further, no water dispute can be referred by the Central Government unless the : C Central Government is of the opinion that the said dispute · cannot be settled by negotiations. In fact, no water dispute can be adjudicated without its reference to the Tribunal. · The interim reliefs which have been sought for even if the same are connected with or relevant to the water dispute al- D ready referred, cannot be considered because the disputes in respect of the said matters have not been referred by the Cen- tral Government to the Tribunal. Further, neither there is any averment in these petitions that the dispute related to interim relief cannot be settled by negotiations and that the Central Government has already fom1ed the opinion that it shall be . E referred to the tribunal. In case the petitioners of CMP Nos. 4,5 and 9 of 1990 are aggrieved by the conduct of the State of Karnataka and an emergent situation had arisen, as claimed, they could have raised a dispute before the Central Govern- ment and in case the Central Government was of the opinion that the said dispute could not be settled by negotiations, the said dispute could also have been referred by the Central Gov- f ernment to the Tribunal. In case such a dispute bad been re- ferred then it would have been open to the Tribunal to decide the said dispute which decision would then be final 'and bind- ing on-the parties. x x x x x x x x From the letter dated 6.7.1986. which was the request made on behalf of the State of Tamil Nadu to the Central Government for referring the dispute to the Tribunal, it is clear that the dispute which has been referred to this Tribunal in regard to the executive action taken by the Kamataka State in construct- H

p. 522

A ing Kabini, Hemavathi, Harangi, Swarnavathi and other projects and expanding the ayacuts and the failure of the Karnataka Government to implement the agreements of 1892 and 1924 relating to the use, distribution and the control of Cauvery waters. No interim dispute iti regard to the release of waters by the Karnataka Government from year to year subsequent to the B date of the request made by the State of Tamil Nadu was at all referred to the Tribunal. The Tribunal has been called upon to decide the main water dispute, which, when adjudicated upon, would undoubtedly be binding on the parties. In view of the above, we are of the opinion that the Tribunal cannot entertain the prayer for interim relief unless the dispute relating to the c same is specifically referred to the Tribunal. x . x x x x x x x x

The observations made by Hon 'ble Supreme Court in Union of India v. Paras Lamines (P) Ltd., [1990] 4 SCC 453-supplied were in relation to the Appellate Tribunal constituted under D the Customs Act, 1962. It was held that the Tribunal functions is a court within the limits of its jurisdiction. Its area of juris- diction.is defined but within the bounds of its jurisdiction it has all the powers expressly and impliedly granted. The Su- preme Court while discussing the extent of the power of the E Tribunal in respect of the grant made by a particular Statute held that the Tribunal will have all incidental and ancillary powers for doing of such acts or employing all such means as are reasonably necessary to make the grant effective. The im- port of the decision of the Hon'ble Supreme Court is that the Tribunal will have incidental and ancillary powers while exer- F cising the powers expressly conferred. These incidental and ancillary powers must relate to the actual dispute referred and not to any other matter including granting of interim reliefs which are not at all subject matter of reference. In our opinion what the Supreme Court intended to hold was that the Tribunal has incidental and ancillary powers to pass orders in respect of a reference for adjudication of which it has been constituted. It·has not, however, further laid (sic.) that it has also incidental and ancillary powers to grant relief in re- spect of a dispute which has not at all been referred. In the instant case, the water dispute which has been referred to us is that which emerges from the letter of the State of

CAUVERY WATER DISPUfES TRIDUNAL (SAWANT, J.) 523

Tamil Nadu dated 6th July, 1986. The Tribunal will have the power to pass such consequential orders as are required to be , made while deciding the said dispute and will also have inci- dental and ancillary powers which will make the decision of the reference effective but these powers are to be exercised' only to enable it to decide the reference effectively but not to decide disputes not referred including a dispute in regard to grant of interim relief/interim reliefs.

x x x x x x x x x

The Second submission raised by the learned counsel for Tamil Nadu namely to the effect that the Tribunal alone could exer- C cise jurisdiction in respect of a water dispute by virtue .of Article 262 of the Constitution of India and in case Tribunal holds otherwise the State of Tamil Nadu will be left with no remedy available to it, it may be stated that since we have taken the view that in case a water dispute really arises and such water dispute could not be resolved by negotiations then it will be open to the Central Government to refer the said dispute to the Tribunal for adjudication, the question of not having a remedy for a wrong does not arise before the Tribu- nal. The Central Government if it finds that the dispute is connected with or related to the water dispute already referred to the Tribunal, it is open to it to refer the said dispute also to the Tribunal in regard to the granting of an interim relief." ·

In the view that it took, as above; the Tribunal held that it could not entertain the said applications for grant of interim reliefs as they were not maintainable in law, and dismissed the same. F

3. Being aggrieved, the State of Tamil Nadu approached this Hon'ble Court by means of special leave petitions under Article 136 of the Consti- tution against the orders passed both in the original application for interim relief being CMP No.4 of 1990 as well as in the application for urgent . interim relief being CMP No.9 of 1990. So did the Union Territory of Pondicherry against the order passed by the Tribunal in its application for G interim relief being CMP No.5 of 1990. These special leave petitions which were later on converted into Civil Appeals Nos.303-04 of 1991 and Civil Appeal No. 2036 of 1991 respectively, were heard together and disposed of by this Court by its judgment dated April 26, 1991. While allowing the appeals this Court held as follows: H

p. 524

A "Thus, we hold that this Court is the ultimate interpreter of the provisions of the Inter-State Water Disputes Act, 1956 and has an authority to decide the limits, powers and the. jurisdiction of the Tribunal constituted under the Act. This Court has not only the power but obligation to decide as to whether the Tribunal has any jurisdiction or not under the Act, to entertain any B interim application till it finally decides the dispute referred to it. x x x x x x x x x A perusal of the order of reference dated 2.6.90 as already extracted above clearly goes to show that the Central Govern- C ment had referred the water disputes regarding the inter-State river Cauvery and the river valley thereof, emerging from let- ter dated 6th July, 1986 from the Government of Tamilnadu. Thus all the disputes emerging from letter dated 6th July, 1986 had been referred to the Tribunal. The Tribunal committed a serious error in omitting to read the following-important para- D graph contained in the aforesaid letter dated 6.7.86." This Court then quoted the said paragraph from· the said letter of6.7.1986 which reads as follows:

"REQUEST FOR EXPEDITIOUS ACTION IN REFERRING THE DISPUTE TO TRIBUNAL: E From 1974-75 onwards, the Government of Karnataka has been impounding all the flows in their reservoirs. Only after their reservoirs are filled up, the surplus flows are let down. The injury inflicted on this State in the past decade due to the unilateral action of Karnataka and the suffering we had in F running around for :i few TMC of water every time and crops reached the withering stage has been briefly stated in note (Enclosure-XXVIII). It is patent that the Government ofKarnataka have badly violated the inter-State agreements and caused ir- reparable harm to the age old irrigation in this State. Year after year, the realisation at Mettur is falling fast and thou- G sands of acres in our ayacut in the basin are forced to remain fallow. The bulk of the existing ayacut in Tamil Nadu concen- trated mainly in Thanjavur and Thiruchirappalli districts is already gravely affected in that the cultivation operations are getting long delayed, traditional double crop lands are getting reduced to single crop lands and crops even in the single crop H lands are withering and falling for wmtt of adequate wettings

CAUVERY WATER DISPUTES TRIBUNAL (SAWANT, J.] 525

at crucial times. We are convinced that the in ordinate delay in ' .< • ... solving the dispute is taken advantage of by the Government \ of Karnataka in extending their canal systems and their ayacut _,Jo ' in the new projects and every day of delay in adding to the '

,.,., injury caused to our existing irrigation." The Court then proceeded to observe as follows: B "The above passage clearly. goes to show that the State of Tamilnadu was claiming for an immediate relief as year after year. the realisation of Mettur was falling fast and thousands of acres in their ayacut in the basin were forc£·d to remain .,;._ fallow. It was specifically mentioned that the inordinate delay .in solving the dispute is taken advantage of by the Government c of I<.arrtataka in extending their canal systems and their ayacut in the new projects and every day of delay is adding to the injury caused to their existing irrigation. The Tribunal was thus clearly wrong in holding that the Central Government had not made any reference for granting.any interim relief. We are not concerned, whether the appellants are entitled or not, for any interim relief on merits, but we are clearly of the view that the reliefs prayed by_the appellants in their C.M.P. Nos. 4, 5 "' and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government under Section 5 of the Act. The Tribunal has not held that it had not incidental and ancillary powers for granting an interim relief, but it has re- fused to entertain the C.M.P. Nos.4,5 and 9 on the grow1d that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circum- stances we think it is not necessary for us to decide in this -t case, the larger question-whether the Tribunal constituted un- F der the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become enti- tied to succeed on the basis of the finding recorded by us in their favour that the reliefs prayed by them in their C.M.P. Nos. 4,5 and 9 of 1990 are covered in the reference made by the Central Government. It may also be noted that at the fag .. ~ end of the arguments it was submitted before us on behalf of G I

the State of Karnaiaka that they were agreeable to proceed with the C.M.P.s on merits before the Tribunal on the terms that all party States agreed that all questions arising out of or connected with or relevant to the water dispute (set out in the respective pleadings of the respective parties), including all H

526 SUPREME COURT REPORTS [1991) SUPP. 2 S . C.R.

A applications for interim directions/reliefs by party States be determined by the Tribunal on merits. However, the above terms were not agreeable to the State of Tamilnadu as such we have decided the appeals on merits." (_ In view of its findings as above, this court by the said order directed the Tribunal to decide CMPs Nos. 4, 5 and 9 of 1990 on merits. In B pursuance of these directions, the Tribunal heard the said applications of Tamil Nadu and Pondicherry. It appears that before the Tribunal, objec~ tions were again raised o:ii behalf of the State of Kamataka with regard to the maintainability of the applications filed by Tamil Nadu and Pondicherry for interim reliefs. The Tribunal did not countenance the said objections holding that the direction given by this Court was binding on it. The c Tribunal then proceeded to decide the applications on merits and by its order dated June 25, 1991 held as follows: "When we are deliberating whether any emergent order ought to be passed, our prime consideration ought to be to preserve, as far as possible, pending final adjudication the rights of the o- parties and also to ensure that by unilateral action of one party other party is not prejudiced from getting appropriate relief at the time of tte passing of the final orders. We ought to also . endeavour to prevent the commission of any act by the parties which might impede the Tribunal from making final orders in conformity with the principles of fair and equitable distribu- E tion of the waters of this inter-State river. x x x x x x x x x ...... At this stage it would be neither feasible nor reasonable to determine how to satisfy the needs of the each State to the greatest extent possible with a minimum of detriment to oth- F ers. We do not also propose at this stage to enter into the question whether the present use of water of the river Cauvery either by the State of Tamil Nandu or the State ofKarnataka fa the most beneficial use to which the water could be put to. . X X X X X X X Xe X ...... We do not propose to examine at this stage the legality or G justifiability of erection of these reservoirs, dams, canals, etc. The said matters may be gone into if found necessary at the appropriate stage. In this case it would be in accordance with justice to fix the annual releases into Mettur Dam by making average of the same for a number of normal years in the im- mediate past. H x x x x x x x x x

CAWERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 527

...... We have already mentioned that at the present stage we A

.. would be guided by consideration of balance of convenience and maintenance of the existing utilisation so that rights of the parties may be preserved till the final adjudication .... ". 1

The Tribunal then directed the State of Kamataka to release water, from its reservoirs in Kamataka so as to ensure that 205 TMC water is available in Tamil Nadu's Mettur reservoir in a year from June to May. B The Tribunal further directed Kamataka to regulate the release of water; every year in the manner stated in the order. The monthly quota of the water was to be released in four equal instalments every week, and if there was not sufficient water available in any week the deficit was di-: rected to be made good in the subsequent week. The Tribunal also di- rected Tamil Nadu to deliver to Pondicherry 6 TMC water for its Karaikal C 1

region in a regulated manner. In addition, the Tribunal directed Karnataka not to increase its area under irrigation by the waters of Cauvery, beyond the existing 11.2 lakh acres. The Tribunal then observed that its said order would remain operative till the final adjudication of the dispute referred to it. c Thereafter. on July 25, 1991 the Governor of Kamataka issued an Ordinance named "the Kamata.ka ·'.:.'auvery Basin Irrigation Protection Or~ dinance, 1991" which reads as follows: '

"An Ordinance to provide in the interest of the general public for the protection and preservation of irrigation in irrigable areas of the Cauvery basin in Kamataka depender.t on the waters of the Cauvery river and its tributaries. Whereas the karnataka Legislative Councii is not in Session and the Governor of Karnataka is satisfied that circumstanc~s exists which render it necess~JY for him to take immediate action, for the protection and preservation of irrigation in the irrigable areas of the Cauvery basin in Kamataka dependent on the water of Cauvery river and its tributaries. Now, therefore, in exercise of the power conferred under clause (l) of Article 213 of Constitution oflndia, I, Khurshed Alam G Khan. Governor of Kamataka, am pleased to promulgate the following Ordinance, namely:- '

1Copy pinpoint1. Short title, extent and commencement:- ( I) This Ordinance may be called the Karnataka Cauvery Ba- sin Irrigation Protection Ordinance, 1991. H

I 1 l

\I• ,.~

p. 528

A (2) It extends to the whole of the State of Karnataka. (3) It shall come into force at once.

2Copy pinpoint2. Definition: Unless the context otherwise requires:- (a) "Cauvery basin" means the basin area of the Cauvery -.:.. \- ;:: ,__ t- river and its tributaries_ lying within the territory of the B • .,.·- State of Kamataka. }

{b) "Irrigable area" means the are_as specified in the Sched- ule. (c) "Schedule" means the Schedule annexed to this Ordinance. ,.L c (d) "Water year" means the year commencing with the lst of June of a Calendar year and ending with the 31st of May of the next Calendar year.

3Copy pinpoint3. Protection of Irrigation in irrigable area: •• (I) It shall be the duty of the State Government to protect, ,- D preserve arid maintain .irrigation from the waters of the '..- Cauvery river and its tributaries in the irrigable area w1- der the various projects specified in the Schedule. ..... (2) For the purpose of giving effect to sub-section (I) the State Government may abstract or cause to be abstracted, during every water year, such quantity of water as it may E deem requisite, from the flows of the Cauvery river and its tributaries, in such manner and during such intervals as the State Government or any Officer, not below the rank of an Engineer-in-Chief designated by it, may deem fit and proper. 'lo--

4Copy pinpoint4. Overriding effect of the Ordinance:- The provisions of this Ordinance, (and of any Rules and Or- ders made thereunder), shall have effect notwithstanding any- thing contained in any order, report or decision of any Court or Tribunal (whetl1er made before or after the commencement of G this Ordinance), save and except a final decision under the provisions of sub-section (2) of section 5 read with section 6 of the Inter-State Water Disputes Act, 1956.

5Copy pinpoint5. Power to remove difficulties:- If any difficulty arises in giving effect to the provisions of this H Ordinance, the State Government may,. by order, as occasion

):-..- '

CAUVERY WATER DISPUfES TRIBUNAL [SAWANf, J.] 529

requires, do anything (not inconsistent with the provisions of A this Ordinance) which appears to be necessary for purpose of removing the difficulty. ' 6. Power to make rules:- (1) The State Government may, by Notification in the Offi- cial Gazette make rules to carry out the purpose of this B Ordinance. (2) Every rule made under this Ordinance shall be laid as may be after it is made, before each House of the State Legislature while it is in Session for a total period of i

thirty days which may be comprised in one Session or in two or more Sessions and if before the expiry of the said period, either House of the State Legislature makes any modification in any rule or order directs that any rule or order shall not have effect, and if the modification or direction is agreed to by the other House, such rule or order shall thereafter have effect only in such modified form or be no effect, as the case may be." { -'• The Schedule mentioned in the Notification refers to the irrigable areas in Cauvery basin of karnataka under various projects including mi- nor irrigation works.

Hot on the heels of this Ordinance, the State of Kamataka instituted E a suit under Article 131 against the State of Tamil Nadu and others for a declaration tht the Tribunal's order granting interim relief was without jurisdiction and, therefore, null and void etc.

Another development which may be noticed is that the Ordinance has since been replaced by Act No.27 of 1991. The provisions of the Act F are a verbatim reproduction of the provisions of the Ordinance except that in Section 4 of the Act the words "any court or" are omitted and Section 7 is added repealing the Ordinance. The omission of the above words ex- cludes this court's order dated April 26, 1991 from the overriding effect of the said provision. Reference to the OrdiJ¥lllCe hereafter will include ref- erence to the Act also unless the conte~t otherwise requires. G

4. It is in the context of these developments that the President has made the Reference which is set out in the beginning.

5. Before us are arraigned the State of Trunil Nadu and the Union Terri- tory of Pondicherry on the one hand the States of Karnataka and Kerala on · H

p. 530

A the other with the Union of Indian talcing no side on the issues arising out of the Reference. There are also interveners on both sides. The conten- tions of the pa.'iies are summarised hereafter. The contentions also include a plea on both sides not to answer either all or one or the other question raised in the Reference for reasons differently advanced. These pleas will also be dealt with at their proper places. Before we deal with the conten- B tions, it is necessary to note certain features of the Reference which are also alluded to in the contentions of the parties. The Reference is made under Article 143 (1) of the Constitution of India seeking opinion of this Court under its advisory jurisdiction. As has been stated in the preamble of the Reference and is also not disputed before us, the first two questions are obviously the outcome of the dispute relating to the sharing of waters between Tamil Nadu and Pondicherry on the one hand and Kamataka and Kerala on the other and the developments that took place in the said dispute till the date of Reference. As has been contended on behalf of Tamil Nadu and Pondicherry, even the third question has a relation to the dispute and the said events, and is not general in nature though it is couched in general terms. According to them, the question has been posed with an oblique motive of getting over the judgement of this Court dated April 26, 1991 and the consequent order of the Tribunal dated June 25,

1991. Hence the said question should not be answered. Their other con- tention is that if the question is general in nature, it requires no answer at all.

6Copy pinpoint6. The contentions of the parties on the questions referred may now be summarised.

With reference to Question l the State of 1(;1111ataka contends, in the light of the presumption of constitutional validity which ordinarily at- taches to a legislation, that the onus lies heavily on the party challenging F the same to show that the impugned Ordinance (now Act) is ultra vires the Constitution. The impugned legislation clearly falls within the compe- tence of the State legislature under Entry 17 as well as Entries 14 and 18 of List II i1i the Seventh Shedule of the Constitution. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power fall within Entry 17 of List II (hereinafter re- G ferred to as 'Entry 17') and the State Legislature has every right t6 legis- late on the subject and this legislative power is subject only to Entry-56 of List I (hereinafter referred to as 'Entry 56'). That Entry deals with regula- tion and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. H This Entry, it is contended, does not denude the States of the power to

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 531

legislate under Entry 17, since it merely empowers the Union, if Parlia-. A ment has by law declared it to be in public interest, that the 'regulation and development of inter-State rivers and river valleys . should, to the extent the declaration permits, be taken under the ·control of tte Union. 1 On a plain reading of the said Entry it is evident that barring regulation and development' of an inter-State river, subject to the declaration, the Central Government is not conferred with the power to legislate on water, JJ etc., which is _within the exclusive domain of the State legislatures. The River Boards Act, 1956 beir.g the only legislation made by Parliament under Entry 56, and the scope of the declaration in section 2 thereof being limited 'to the extent hereinafter provided', that is to say provided by that statute, and no River Board having been constituted thus far in respect of and inter-State river under the said law, the power to legislate under Entry c 17 is not whittled down or restricted. Thus, contends the State of Karnataka, the River Boards Act merely authorises the Union to set up a River Board with a view to take under its control the regulation and development of inter-State rivers without in any manner restricting or controlling the leg- islative power under Entry 17. But in the absence of the constitution of a River Board for Cauvery, it is contended that the State of Karnataka D retains full legislative power to make laws as if Entry 17 has remained •' untouched. Further, the executive power of the Union under Article 73 ca1U1ot extend to any State with respect to matters on which the State alone can legislate in view of the field having been covered by Article 162 of the Constitution. Since the Act enacted under Article 262 of the Constitution does not attract any Entry in list I, it is a law essentially meant to provide for the adjudication of a dispute with respect to the use, distribution or control of waters of, or in, any inter-State river or river valley and does not, therefore, step on the toe of Entry 17. What the Ordinance (now Act) seeks to do is to impose by section 3 a duty on the State Government to protect, preserve and maintain irrigation from Cauvery waters in the irrigable areas falling within the various projects specified in the Schedule to the said legislation. The State of Karnataka, therefore, contends that the impugned legislation is clearly within the scope of the State's power to legislate and is, therefore, intra-vires the· Constitution. A forteriori, the power to legislate conferred on the State legislature by Entries 14, 17 and 18 of List II, cannot be inhibited by an interim order of the Tribunal since the scheme of the Act envisages only one final report G "' or decision of the Tribunal under section 5 (2) which would have to be gazetted under section 6 thereof. Until a final adjudication is made by the Tribunal determining the shares of the respective States in the waters of an inter-State river, the States would be free to make optimum use of water within the State and the Tribunal cannot interfere with such use under the guise of an interim order. Consequently it was open to the H

532 SUPREME COURT REPORTS [1991] SUPP. 2 S.C;R.

A Kamataka Legislature to make a law ignoring or overriding the interim order of the Tribunal. · ·

With regard to Question 2 (i) of the Reference, the State ofKarnataka: contends that the scheme of the Act does not envisage the making of an interim order by the Tribunal. Section 5 of the Act provides that after a B · Tribunal has been constituted under section 4, the Central Government <>hall refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication. On such Reference the Tribunal must investigate the matters referred to it and forward a report setting out the facts found by it and giving its decision on the matters referred to it. If upon consideration of the decision; the Cen- c tral Government or any State Government is of opinion that anything contained therein requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, such Government may within three months .from the decision again refer the matter for further consideration, and on such reference, the Tribunal may forward a further report giving such explanation and guidance as it deems fit and thereupon D the decision of the Tribunal shall be deemed to be modified accordingly. Section 6 then enjoins upon the Central Government to publish the deci- sion of the Tribunal in the Official Gazette and on such publication 'the decision shall be final and binding on the parties to the dispute and shall be given effect to by them'. It is contended by the State of Karnataka that the scheme of the aforestated provisions clearly envisages that once a E water dispute is referred to the Tribunal' the Tribunal must 'investigate' the matters referred to it and forward a report to the Central Government 'setting out the facts found by it' and 'giving its decision' on the matters referred to it. It is this decision which the Central Government must publish in the Official Gazette to make it final and binding on the parties ~· to the dispute. The State of Karnataka, therefore, contends that the scheme of the Act contemplates only one final report made after full investigation in which findings of fact would be set out along with the Tribunal's decision on the matters referred to it for adjudication, and does not con- template an interim report based on half-baked information. Finality is attached to that report which records findings of facts based on investiga- tion and not an ad hoc, tentative and prima facie view based on no investigation or cursory investigation. The State of Karnataka, therefore, contends that since the interim order was not preceded by an investigation of the type contemplated by the Act, the said order of 25th June, 1991 r-' \ could not be described as 'a report' or 'a decision' under section 5(2) of the Act and hence there could be no question of publishing it in the \ H gazette. It is, therefore, conte1ided that no finality can attach to such an order which is neither a report nor a decision and even if published in the \' \

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 533

gazette it cannot bind the parties to the dispute and can have no efficacy in law/. On Question 2(ii), it is, therefore, contended that since there was no in4.restigation, no findings on facts, no report and no decision, the Central Government is under no obligation to publish the interim order of the Tribunal.

With reference to Question 3, the State of Karnataka reiterates that the scheme of the Act clearly envisages a final report to be given by the Tribunal on conclusion of the investigation and after the Tribunal has reached firm conclusions on disputed questions of fact raised before it by the contesting parties. It is only thereafter that it can in its report record its decision which on being gazetted becomes· final and bindiLg on the parties. The words 'any matter appearing to be connected with or relevant to water dispute' employed in section 5(1) of the Act, do not contemplate reference of an interim relief matter nor can the same empower the Tribu- nal to make an interim order pendente lite. The Act has deliberately not conferred any power on the Tribunal to make an interim order for the simple reason that a water dispute has many ramifications, social, eco- nomic and political, and involves questions of equitable distribution of water which cannot be done without a full-fledged investigation of the relevant data-material includin~ statistical information. In the very nature of things, therefore, it is impossible to think that the Act envisaged the making of an interim order. While conceding that certain kinds of inter- locutory orders which are processual in nature can be made by the Tribu- nal to effectuate the purpose of the Act, namely, adjudication of a water dispute, no interim relief or order can be granted which will affect the existing rights of the parties because that would in effect deprive the concerned State of the power to legislate in respect of water under Entry 17 and/or make executive orders in that behalf under Article 162 of the Constitution. The jurisdiction conferred on the Tribunal under the Act to adjudicate upon a water dispute does not extend to grant of interim relief. F The State of Karnataka, therefore, contends that having regard to the purpose, scope and intendment of the Act, the Tribunal constituted there- under has no power or authority to grant any interim relief which would have the effect of adversely interfering with its existing rights, although while finally adjudicating the dispute it can override any executive. or legislative action taken by the State. Since .the allocation of flow waters G between the concerned States is generally based on the principle of 'equi- I

table apportionment', it is incumbent on the Tribunal to investigate the facts and all relevant materials before deciding on the shares of the con- cerned States which is not possible at the interim stage and hence the legislature has advisedly not conferred any power on the Tribunal to make an interim order affecting the existing rights of the concerned parties. The H

p. 534

A State of Kamataka, therefore, urges that this question deserves to be an- swered in the negative.

The State of Ker.ala has in its written submissions of l 0th August, 1991 by and large supported the stand taken by the State of Kamataka. It contends that the provisions of the Act enacted under Article 262 of the B Constitution constitute a complete Code and the Tribunal has been con- ferred the powers of a civil court under the Civil Procedure Code only in respect of matters enumerated in section 9( l) of the Act. The power to grant interim relief is conspicuously absent and in the absence of an express provision in this behalf, the Tribunal, which is a creation of the Act, can have no jurisdiction to grant interim relief. It would be advanta- C geous to state the contention of the State of Kerala in its own words:

" ..... Tribunal has no jurisdiction or power to make an interim award or grant any interim relief to a party unless the dispute relating to the interim relief has itself been referred to the TribWlal." (Paragraph 1.5) D This is further amplified in paragraph 3.3 of its submissions as un- der.:

"Such a relief can be granted to a party if that forms the subject matter of a separate reference to the Tribunal by the Central Government. In such a situation, the order of the Tri- E bunal, would constitute a separate report and decision within section 5(2) of the Act which would then be published by the Central Government and would, therefore, be binding on the parties." It is, however, the stand of Kerala that no specific reference for grant of interim relief was made to the Tribunal and hence the interim order of 25th June, 1991 does not constitute a report and a decision within the meaning of section 5(2) and hence the Central Government is not ex- pected to gazette the same. Unless the same is gazetted finality cannot attach to it nor can it bind the parties. Therefore, contends the State of Kerala, the Tribunal ltad no jurisdiction to grant interim relief which it has granted by its aforesaid interim order. Hence the said order has no effi- cacy in law nnd can be ignored.

On the question of issuance of the Ordinance, the State of Kerala --- 1·

\ contends, that such a legislation falls within the scope and ambit of Entry \ H 17 and is. therefore, perfectly legal and constitutional and is not in any manner inconsistent with Entry 56 nor does it trench upon any part of the \ \

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 535

declaration in section 2 of the River Boards Act or any of the provisions A thereof. Thus according to Kerala, the legislative competence to pass such a statute vests in the State legislature under Entry 17 and, therefore, the, Govemor of Karnataka was competent to issue the Ordinance under Arti- cle ii 3 of the Constitution. '

However, in the course of his submissions before this Court, Mr. B Shanti Bhushan, counsel for the State of Kerala departed from the stand · taken in the written submission and contended that the scheme of the. Act , does not confer any power whatsoever on the Tribu1_1al to make an interim order and, therefore, the only remedy available to a State which appre- , bends any action by the upper riparian State likely to adversely affect its right, i.e. the rights of its people, is to move the Supreme Court under C Article 131 of the Constitution notwithstanding the provisions of Article 262 and section 11 of the Act. According to the learned counsel since the scope of Article 262 read with the scheme of the Act does not contemplate 1

a Reference regarding the grant of interim relief to the Tribunal consti- tuted under the Act, the field is left open for a suit to be instituted under Article 131 of the Constitution. Mr. Shanti Bhushan went so far as to D contend that even if the Act had invested power in the Central Govern- ment such a provision would have been hit by Article 262 itself as the scope of that Article is limited while Article 131 is wider in scope. Thus, according to counsel, this Court's majority view expressed by Kasliwal, J. in Civil Appeals Nos. 303, 304 & 2036 of 1991 which held that there was a reference to the Tribunal for grant of interim relief is not consistent with ·E the true meaning and sope of Article 262 and the provisions of the Act and this Court should not feel bound by it if it agrees with counsel's interpretation for to do so would be to render wrong advice to the Presi- dent. It is thus manifest that counsel's submissions are a clear departure from the written submission filed by the State on I 0th August, 1991. F The State of Tamil Nadu contends that ordinarily a dispute between (i) the Government of India and one or more States or (ii) between the Government of India and any State or States on one side and one or more other States on the other or (iii) between two or more States would be governed by Article 131 of the Constitution and, subject to the provisions of the Constitution, the Supreme Court alone would have jurisdiction if G and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. Article 131 begins with the words 'subject to the provisions of the Constitution' and hence it must be read subject to Article 262 of the Constitution. Article 262 enables Parliament to provide by law for the adjudication of any dispute or complaint with respect to the use, distribution or control of the H