IN THE MATTER OF :

A

CAUVERY .WATER DISPUTES TRIBUNAL

NOVEMBER 22, 1991

'

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

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

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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

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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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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

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

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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,

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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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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

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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

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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.

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

~ 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

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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.

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