The State of Karnataka by Its Chief Secretary vs State of Tamil Nadu by Its Chief Secretary & Ors.

Water dispute raised by State of Tamil Nadu – Against State of Karnataka – Alleging that the executive action taken by State of Karnataka in constructing Kabini, Hemavathi, Harangi, Swrnavathi and other projects has affected the interest of the State of Tamil Nadu in the waters of Cauvery, an inter-State river – Also alleged that the executive action were in violation of agreements entered into between the erstwhile Madras Presidency and State of Mysore in the years 1892 and 1924 – Central Government referred the dispute to Cauvery Water Disputes Tribunal – Claims also raised by State of Kerala to the waters of river Cauvery on account of the areas transferred to it from the State of Madras after State Reorganization Act, 1956 – Claim by Union Territory of Puducherry in the waters of Cauvery river since it was located within Cauvery basin and seven branches of Cauvery did flow through the said region – Tribunal held the agreements of 1892 and 1924 as valid and determined the utilisable quantum of waters of the Cauvery to be 740 thousand Million Cubic Feet (TMC) – The Tribunal allocated the waters of Cauvery, following the principle of equitable apportionment – It allocated 419 TMC to State of Tamil Nadu, 270 TMC to State of Karnataka 30 TMC to State of Kerala and 7 TMC to Union Territory of Puducherry – In addition, the Tribunal reserved 10 TMC for environmental protection and 4 TMC for inevitable escapages into the sea – Aggrieved by allocation of sharing of waters of Cauvery awarded by the Tribunal, appeals by way of SLP were filed by the States of Tamil Nadu, Karnataka and Kerala – Held: Waters of an inter-State river passing through corridors of the riparian States constitute a national asset and no single State can claim exclusive ownership of its water – Principle of equitable apportionment internationally recognized by the Helsinki Rules, Compione Rules and Berlin Rules which have also been incorporated in 1987 and 2002 National Water Policies, have been regarded to be the guiding factors for resolving disputes qua apportionment of waters of an inter-Sate river – The Tribunal was correct in its approach – Tribunal correctly determined the irrigated area of Tamil Nadu – Allocation of water to Tamil Nadu for domestic and industrial purposes and allocation of water to Kerala and Puducherry also requires no interference – Reservation of 10 TMC for environment protection and 4 TMC for inevitable escapages into sea also does not need any interference – However, the admission of facts and empirical data suggests that around 20 TMC of water is available in Tamil Nadu which has not been taken into account by the Tribunal – Therefore, keeping in view the risks associated with over-extraction of groundwater, 10 TMC of the available groundwater in Tamil Nadu to be taken into account for final determination of State of Tamil Nadu – Tribunal has also drastically reduced the share of Karnataka towards Domestic and Industrial purpose – Therefore, 4.75 TMC is awarded to Karnataka for this purpose – Thus, it would be appropriate to award to the State of Karnataka an additional 14.75 TMC (10 TMC on account of availability of groundwater in the State of Tamil Nadu and 4.75 for domestic and drinking purposes) – Inter-State Water Disputes Act, 1956 – ss. 3 and 5.

Inter-State Water Disputes:

Water Dispute – Between States of Tamil Nadu and Karnataka – Pertaining to waters of Inter-State river Cauvery – Complainant State (State of Tamil Nadu) inter-alia alleged that the executive action of State of Karnataka (affecting the interest of State of Tamil Nadu) was in violation of the agreements entered into, in the years 1892 and 1924 between the erstwhile State of Mysore and Madras Presidency, in respect of distribution of waters of Cauvery river – State of Karnataka questioned the validity of the agreements on the ground of applicability of doctrine of paramountcy; and on the ground of unconscionability of the agreements – On appeal, held: After coming into force of Indian Independence Act, 1947, doctrine of paramountcy has no room for application – The agreements had neither any political arrangement nor touched any facet of sovereignty of India, but they covered areas of larger public interest – The agreements did not come to an end either after coming into force of 1947 Act or after coming into force of the Constitution – State of Mysore might not have bargaining power in 1892 or 1924 but such power came alive after the 1947 Act or coming into force of the Constitution – State of Karnataka did not choose to denounce the same – Even after coming into force of States Reorganization Act, 1956, newly formed States did not raise any dispute to controvert the agreements – Thus, the State of Karnataka waived its right to question the legal tenability of the agreements – Therefore, the agreements are neither inoperative nor completely extinct – However, 1924 agreement was not intended to be of permanent character – It contemplated a fixed term of 50 years and its continuance after 50 years was dependent on certain aspects – Therefore, the 1924 agreement expired after 50 years i.e. in the year 1974 – Indian Independence Act, 1947 – s. 7 – States Reorganization Act, 1956.

Inter-State Water Disputes:

Complaint by State of Tamil Nadu – Against State of Karnataka – Regarding allocation of waters of inter-State river Cauvery – Adjudicability of the complaint – Held: When States make a request under Inter-State Water Disputes Act, 1956 for adjudication of disputes, interest of the inhabitants of the State is involved – Both the States are governed by parens patria principle – The matter deserved to be adjudicated on the bedrock of equal status of the States and doctrine of equitability – Inter-State Water Disputes Act, 1956.

Inter-State Water Disputes Act, 1956:

s.6A – Interpretation of – Held: Central Government does not have discretion to frame scheme u/s. 6A – Framing of the Scheme is exclusively meant for implementation of the award or as the same gets modified by Supreme Court.

Constitution of India:

Arts. 143, 262 and 363 – Inter-State water dispute – Between States of Tamil Nadu and Karnataka – Non-maintainability of the disputes on the basis of agreements entered between erstwhile State of Mysore and Madras presidency – Held: Bar under s. 363 is not applicable in the present case as the issues in the present case have no connection with the concept of sovereignty and integrity of India. Constitution of India:

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

Interpretation of Statutes:

Rules of interpretation – Purposive interpretation – A provision should not be interpreted to given a different colour which has a technical design rather than serving object of the legislation. Doctrines/Principles:

Doctrine of paramountcy – Applicability of – Discussed. Principle of apportionment – Discussed.

Partly allowing the appeal filed by State of Karnataka and disposing of the appeals filed by the States of Tamil Nadu and Kerala, the Court

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

1.1 It cannot be said that after coming into force of the 1947 Act and thereafter the Constitution of India, the agreements of 1892 and 1924 became inoperative and totally extinct. [Para 84] [932-A]

1.2 After coming into force of the 1947 Act, the doctrine of paramountcy has no room for application, as the Government of India became the full sovereign authority. The two agreements of 1892 and 1924 had neither any political arrangement nor touched any facet of sovereignty of India. Per contra, the agreements cover the areas of larger public interest which do not have any political element and in this backdrop, the agreements are neither inoperative nor completely extinct. [Para 404(i)] [1120-D]

H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and others v. Union of India and another (1971) 1 SCC 85 : [1971] 3 SCR 9 – relied on. Dr. Babu Ram Saksena v. State [1950] SCR 573 : AIR 1950 SC 155; Hemchand Devchand v. Azam Sakarlal Chhotamlal (1905) 33 IA 1 : (1906) ILR 33 Cal 219; State of Tamil Nadu v. State of Kerala and another (2014) 12 SCC 696 : [2014] 12 SCR 875; Mullaperiyar Environmental Protection Forum v. Union of India and others (2006) 3 SCC 643 : [2006] 2 SCR 740; Virendra Singh and others v. State of U.P. [1955] 1 SCR 415 : AIR 1954 SC 447 – referred to.

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

2. Unconscionability of the Agreements of 1892 and 1924 : On a keen scrutiny of the evidence on record, there is no proof that the State of Mysore, at the relevant time, had denounced the agreements. The agreements did not automatically come to an end either after coming into force of the 1947 Act or after coming into force of the Constitution because of the “Standstill Agreement” and further owing to the fact that there had been no denouncement. The bargaining power may not have existed in 1892 or 1924 but definitely, the said power to bargain or to choose, came alive after the 1947 Act and, undoubtedly, after the Constitution came into being. However, the State of Karnataka chose not to do so. Therefore, the agreements should not be declared as void because of unconscionability. [Para 119] [957D, E-G] New Bihar Biri Leaves Co. and others v. State of Bihar and others (1981) 1 SCC 537 : [1981] 2 SCR 417; Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly & Another (1986)

3 SCC 156 : [1986] 2 SCR 278; O.P. Bhandari v. ITDC (1986) 4 SCC 337 : [1986] 3 SCR 923; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others 1991 Supp. (1) SCC 600 : [1990] 1 Suppl. SCR 142; Balmer Lawrie & Company Limited and others v. Partha Sarathi Sen Roy and others (2J) (2013) 8 SCC

345 : [2013] 4 SCR 1018; West Bengal State Electricity Board and others v. Desh Bandhu Ghosh and others AIR 1985 SC 722 : [1985] 2 SCR 1014 – referred to.

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

3. Status of Agreements after coming into force of States Reorganisation Act, 1956:

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

2 SCR 691 – referred to.

4. Issue relating to expiry of the agreements: A scrutinized perusal of the 1924 Agreement reveals that the said Agreement was never intended to be of permanent character. On the contrary, it contemplated a fixed term of 50 years. Having perused the clause in entirety and considering the words, namely, ‘reconsideration’, ‘mutually agreed upon’ and ‘be open to’, it is clear that certain clauses in the Agreement had a restricted life span. Inasmuch as the relevant clauses which are open to reconsideration are absolutely essential parts of the contract and it is extremely difficult to place appropriate construction on the contract without them. The clauses in the contract do not indicate permanency but, on the contrary, indicate fixed term. The continuance of contract, was further a subjective consideration and merely agreed upon and, therefore, to hold that it continued solely because of the experience gathered would not be appropriate and it would be contrary to the concept of understanding the clauses in a contract to give effect to its continuance. The continuance after 50 years was dependent on certain aspects and, therefore, the agreement expired after 50 years i.e. in the year, 1974. [Paras 404(v), 146 and 147] [1121-A; 975-H; 976-A-D]

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

5. Infraction of Article 363 of the Constitution of India and non- maintainability of the dispute on the basis of agreements of 1892 and 1924:

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

State of Tamil Nadu v. State of Kerala and another (2014) 12 SCC 696 : [2014] 12 SCR 875 – followed. H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and others v. Union of India and another (1971) 1 SCC 85 : [1971] 3 SCR 9 – relied on. State of Seraikella v. Union of India and another [1951] SCR 474 : AIR 1951 SC 253 – distinguished.

State of Karnataka v. State of Tamil Nadu and others (2017) 3 SCC 362 : [2016] 8 SCR 499; In Re:

Presidential Reference (Cauvery Water Disputes Tribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl. SCR 497; Maharaja Shree Umaid Mills Ltd. v. Union of India [1963] Supp. 2 SCR 515 : AIR 1963 SC 953 – referred to.

6. Adjudicability of the Complaint:

6.1 It is not correct to say that the complaint deserves to be dismissed in the absence of proven injury. The complaint does not contain the words “prejudicially affected’ but the antecedents of the complaint, the view of the Central Government while referring water dispute and the expression of opinion of this Court in *Presidential Reference (Cauvery Water Disputes Tribunal) case. In the backdrop of the language of the Inter-State Water Disputes Act, 1956 the expiration by the efflux of time and the role of this Court, the Court is not inclined to entertain such a plea. The matter (complaint) deserves to be adjudicated on merits. [Paras

149 and 150] [977-F; 978-B-C, D]

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

6.2 On a perusal of the Helsinki Rules, 1966, it is clear that the said Rules have not accepted the Harmon doctrine. It has, on the contrary, laid emphasis on the need of equitable utilization of such international rivers. It is noticeable from Articles IV and V of the Helsinki Rules that they recognize equitable use of water by each basin State, setting out the factors, not exhaustive though, to be collectively taken into consideration for working out the reasonable and equitable share of the riparian States. The indicated factors, inter alia, include the geography of the basin, the hydrology of the basin, the climate, past utilization of waters, economic and social needs of each basin State, population dependent on the waters of the basin in each basin State, availability of other resources and the degree to which the needs of a basin State may be satisfied without causing substantial injury to a co-basin State. The emphasis clearly is that in determining the reasonable and equitable share, all relevant factors are to be considered together and a conclusion is to be reached on the whole. [Para 161] [985-G-H; 986-A-B]

State of Wyoming v. State of Colorado 259 US 419 (1922); State of Nebraska v. State of Wyoming 325 US

589 (1945); Kansas v. Colorado 206 US 46 (1906); Colorado v. Kansas 206 US 46 (1906); State of New Jersey v. State of New York 283 US 336 (1931); State of Connecticut v. Commonwealth of Massachusetts 282 US 660 (1931); State of Colorado v. State of New Mexico 459 US 176 (1982) – referred to.

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

6.4 When the States make a request under the Inter-State Water Disputes Act, 1956 for adjudication of the disputes, the interest of the inhabitants of the State is involved. Both the States are governed by the parens patriae principle. The Tribunal in its approach primarily referred to Helsinki Rules, 1966. The Tribunal was correct in its approach. For determining reasonable and equitable shares, relevant factors have to be considered together, in reaching a conclusion. Keeping in view the various intricacies involved in the present case and the duty ordained upon this Court by the Constitution of India, the matter deserved to be adjudicated on the bedrock of equal status of the States and doctrine of equitability. Resultantly, it cannot be said that the complaint of the State of Tamil Nadu did not warrant any adjudication. [Paras 165 and 404(vi)] [987-E-F; 1121-B-D]

7. Principles of apportionment to be followed:

7.1 The waters of an inter-State river passing through the corridors of the riparian States constitute national asset and cannot be said to be located in any one State. Being in a state of flow, no State can claim exclusive ownership of such waters or assert a prescriptive right so as to deprive the other States of their equitable share. It has been propounded therein that the right to flowing water is well-settled to be a right incident to property in the land and is a right publici juris of such character, that while it is common and equal to all through whose land it runs and no one can obstruct or divert it, yet as one of the beneficial gifts of Nature, each beneficiary has a right to just and reasonable use of it. [Para 363] [1092-A-C]

7.2 To conceive that equality rests on equal sharing of water within an arithmetical formula, would be fundamentally violative of the established conception of equitable apportionment because the said concept inheres a multiple factors. It is the obligation of the Tribunal to address the same and the duty of this Court is to adjudge within the permissible parameters of the justification of the said adjudication. The dissension has to be addressed in the backdrop of equal Status of the States and the doctrine of equitability. [Para 364] [1092-H; 1093-A-B]

7.3 The principles laid down in Helsinki Rules can be regarded as functional dynamics while equitably distributing the water in an inter-State river disputes. The salient feature of all these factors has to have inherent variability and inevitable flexibility thereof having regard to the local conditions, for it is difficult to ignore the undeniable and common emphasis necessary to ensure beneficial use of the available resources for a basin State and logically for its dependent populace warranted by the economic and social needs. While determining the said needs, amongst others, past and existing utilization of the water have to be borne in mind. To remain oblivious to the same would amount to playing possum with the doctrine of equitable distribution in praesenti. The noticeable quintessence of the determinants is the predication for a delicate balance in adjustments of the needs based on realistic, reasonable, judicious and equitable canons so much so that while satisfying the requirements of a basin State, a co-basin State is not subjected to any substantial injury. Though in terms of Articles VI and VII of Helsinki Rules, any other category of users is not entitled to any inherent preference over any other use or category of users, yet the precedence of an existing reasonable use of a basin State over a proposed future use of a co-basin State has been recognized. Significantly, in terms of Article VIII, an existing reasonable use may continue in operation, unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use clearly signifying that an existing use is also not absolute in terms and is subject to exigency based adjustments. [Para 367] [1094-H; 1095-A-E]

7.4 Substantially on the same lines is the Campione Consolidation of ILA Rules on International Water Resources 1966-1999. The distinguishing attribute of these Rules is the inclusion of water of an aquifer, i.e., underground water or “fossil waters” intercepted by the boundary between the two or more States as international ground-water so much so that it would form an international basin or part thereof qua the relevant factors to determine reasonable equitable share. These Rules include the criterion of interdependence of underground waters and other waters, including any interconnections between aquifers and any leaching into aquifers caused by activities in areas under the jurisdiction of the basin states. [Para 368] [1095-E-G]

7.5 Another set of rules on international drainage basin is called the Berlin Rules adopted by the International Law Association in its Berlin Conference in the year 2004. On the aspect of equitable utilization, Article 12 thereof provides that basin States, would in their respective territories manage the waters of an international drainage basin in an equitable and reasonable manner, having due regard for the obligation not to cause significant harm to other basin States and in particular, the basin States, would develop and use the waters of the basin in order to attain optimal and sustainable use thereof. The interest of the other basin States are to be kept in view. Article 13 of the Rules catalogues as well the relevant factors to determine the equitable and reasonable use of a basin State. While reiterating in essence the Rules as prescribed by the Helsinki Rules, the additional aspect to be considered is minimization of environmental harm. Article 14 of these Rules stipulates that in determining an equitable and reasonable use, the States shall first allocate waters to satisfy vital human needs and that no other use or category of uses shall have an inherent preference over any other use or category of uses. Article 17 postulates that every individual has a right of access to sufficient, safe, acceptable, physically accessible and affordable water to meet his vital human needs and it is the obligation of the States to ensure the implementation of right of access to water on a non-discriminatory basis. [Paras 369 and 370] [1095-G-H; 1096-A-D]

7.6 The common thread decipherable from these Rules is the universal acknowledgment of the principle of equitable utilization as an effective and workable tool for the management of waters of an international drainage basin. [Para 371] [1096-DE]

7.7 The National Water Policy of 1987 sounded a threshold caveat that water is a prime natural resource, a basic human need and a precious national asset. While emphasizing that this resource is one of the most crucial elements in development planning, the policy announced that it is a scarce and precious national asset to be planned, developed and conserved on an integrated environmentally sound basis, keeping in view the needs of the States concerned. It underlined that resource planning in the case of water has to be done for a hydrological unit such as drainage basin as a whole or for a sub-basin and that all individual developmental projects and proposals should be formulated by the States and considered within the framework of such an overall plan for a basin or sub-basin so that the best possible combination of options can be made. As is manifest from the policy, it enjoined that water should be made available to water deficient areas by transfer from other areas including transfers from one river basin to another based on national perspectives after taking into account the requirements of the areas/basins. That apart, making provision for drinking water should be a primary consideration which was also highlighted. As regards the ground-water resources, it was marked that exploitation thereof should be so regulated as not to exceed the recharging possibilities as also to ensure social equity and to prevent ingress of sea water into sweet water aquifers. In the realm of planning and operation of systems, water allocation priorities were broadly outlined as (a) drinking water, (b) irrigation, (c) hydropower, (d) navigation and (e) industrial and other uses. [Paras 372 and 373] [1096-F-H; 1097A-C]

7.8 The 1987 policy laid stress that in view of vital importance of water for human and animal life, for maintaining ecological balance and for economic and developmental activities of all kinds and considering its increasing scarcity, the planning and management of this resource and its optimal, economical and equitable use has become a matter of utmost urgency. It emphasized that the success of the National Water Policy would depend entirely on the development and maintenance of a national consensus and commitments to its underlying principles and objectives. Significantly, the Policy, which is a national charter for Planning and Development of Water Resources for its disciplined and judicious utilization recognizes and accepts it to be scarce and valuable bounty of nature to be developed, conserved and put to planned use on an environmentally sound basis with due regard to the needs of the State concerned. The Policy, thus, sustains the concept of basin State as contemplated in the Helsinki Rules, Campione Rules and Berlin Rules. [Para 374] [1097-D-F]

7.9 The National Water Policy of 2002 which is a revised and updated form of the earlier model, reiterates the emphasis on the need for planning, development and management of the water resources from the national stand point. Pertaining to water allocation priorities, this Policy added to the list, in particular, ecology and agro industries and non-agricultural industries, qualifying that the priorities as enumerated could be modified or added if warranted by the specific considerations of the areas/regions. The primacy of drinking water was reiterated. On the aspect of ground water development, it was stated that a periodical re-assessment of the ground water potential on the scientific basis should be made taking into consideration the quality of water available and the economic viability of its extraction. Same caution against over-exploitation of ground water was sounded. It was, inter alia, mandated that adequate safe drinking water facility should be provided to the entire population, both in urban and in rural areas, and irrigation and multipurpose projects should invariably include in it drinking water component wherever there is no alternative source of drinking water. It was clarified that drinking water needs of human beings and animals should be the first charge on any available water. Qua irrigation, the Policy stated that planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost effective irrigation options possible from all available sources of water and appropriate irrigation techniques for optimising water use efficiency. The aspect that the irrigation intensity should be such as to extend the benefits of irrigation to a large number of farm families as much as possible, keeping in view the need to maximize production, was also underlined. It was most importantly provided that water sharing/distribution amongst the States should be guided by national perspective with due regard to the availability of water resources and the needs within the river basin. The Policy, therefore, did not bar as such the sharing or allocation of water in areas within the basin State. In conclusion, the Policy recorded that its success would depend entirely on evolving and maintaining national consensus and commitment to its underlying principles and objectives. It also laid emphasis on the needs of the community that requires to be taken into account for the development and management of water resources. [Para 376] [1098-A-G]

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

7.11 The Helsinki Rules and the other Rules envisage a basin State on the issue of equitable apportionment of an interState river. Though the Rules predicate that in determining the share of one basin State, the other co-basin States would not be subjected to substantial injury, yet the clear emphasis is to fulfill the economic and social needs of the population of the State and in the sphere of irrigation, its farmer community. Indubitably, the principle of apportionment would apply uniformly to all river basins in a State. The sharing of an inter-State river, as the professed norms of distribution suggest, has to be with the spirit of harmonious disposition and equanimous dispensation. The norms or the factors suggested can never be exhaustive and designed only a balanced framework of pragmatic measures to ensure beneficial use of water resources in an inter-State river on needbased application thereof and reciprocal adjustments for common good. In the regime of a welfare State wedded to the guarantees enshrined in the National Charter, any yardstick for distribution of any national asset like water would have to be essentially in furtherance thereof. The criteria identified in the Rules and supplemented by the national policies in letter and spirit, though in quite detail, can only be construed as illustrative and cannot be perceived as a strait-jacket formula or put in a compartment of mathematical exactitude to exclude any other consideration or exigency to effect a desirable apportionment of water of an inter-State river depending on the prevalent eventualities. Having regard to the geographic, hydrographic, hydrological, hydrogeological, climatic, ecological and other fluvial phenomena attendant on time, the spectrum of priorities and the factors associated therewith are bound to vary. [Para 377] [1099-A-E]

7.12 While no precise formula can be adopted, there has to be a sincere and pragmatic endeavour to have a rational amalgam of globally accepted norms and the local necessities founded on the doctrine of fairness and equity. The factors already enumerated, may inter se demand precedence of one over the other depending on the ground realities, the ultimate test being to ensure that the allocations on the basis thereof in favour of one basin State ought not to be substantially detrimental to the co-basin States. The order of precedence in the areas of necessity, as set out in the National Policy, is not incompatible with the acknowledged determinants for ascertaining the reasonable and equitable share of an inter-State river. Nevertheless, the weightage of one item of need would depend in a given situation on the degree and priority thereof thereby necessitating grant of preference of one over the other in departure of the sequence set out in the policy. This again is to underline the attribute of variability in the approach of application of the otherwise identified criteria, the ultimate goal being equitable apportionment of the resources. This concept gains more significance where the resource is scarce and inadequate qua the demand thereof. It is warrantable as the dispute involves the inhabitants of one State with the inhabitants of another State. Such involvement by statutory command engulfs the principle of obtaining situational adjustment having due regard to priority. [Para 377] [1099-F-H; 1100-A-B]

7.13 The factors as set out in the Helsinki Rules and endorsed as well as supplemented by the Campione Rules and the Berlin Rules and further consolidated by our national policies as above are efficient, rational, objective and pragmatic guidelines to conduct any exercise for determining the reasonable and equitable share of basin States in the water of an inter-state river like Cauvery as in the present case. With these guidelines at disposal, the endeavour has to be essentially to ensure an appropriate balance of the genuine competing demands and interests of the basin States. The balancing has to be done in a pragmatic and feasible manner so that it will be ultimately functional and meet the aspirations of the riparian States. In such a working process, there has to be adjustment of the available resources. That apart, the process indeed has to be informed with egalitarian vision for achieving utilitarian ends keeping in view the inclusive spirit and the pluralistic ethos. Thus viewed and understood, periodical reviews to update the allocations merited by changes in the aforementioned natural and environmental phenomena bearing on the resources for supply and resultant reorientation of the inter se needs of the basin States, would have to be unfailingly undertaken on time. [Paras 377 and 378] [1100-C-F]

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

8. Determination of ‘irrigated areas” in Tamil Nadu and Karnataka:

8.1 The Tribunal, after adopting the principle of equitable apportionment, in the process of computing the reasonable and equitable shares of the basin States as the first initiative, determined the irrigated areas of the States and in doing so, noted from the report of the Cauvery Fact Finding Committee submitted in the year 1972 that the utilization of waters of Tamil Nadu including Karaikal region of the Union Territory of Puducherry, Mysore and Kerala had been 566.60 TMC, 176.82 TMC and 5 TMC respectively. In view of the fact that river Cauvery is deficit in its water content compared to the demands of the riparian States involved, restrictions and savings in the matter of use thereof are not only necessary but also natural corollaries. In that view of the matter, it is incumbent to identify the areas under irrigation with the expansion thereof with time, together with the crop pattern and the suitability thereof, having regard to the extent of utilization of the deficient surface flow available. On the basis of the reports of the various Committees and the recorded data, the bearing of the 1924 Agreement in particular over the march of events cannot also be totally disregarded. [Para 380] [1101-C-E, G-H; 1102-A]

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

8.2 The Tribunal, after taking into account all the factors, vis-a-vis Tamil Nadu, applied the restrictions to work out the irrigated area to which it would be entitled to assert its share of allocation, namely, no area for summer paddy; area of summer paddy raised prior to 1924 to be replaced by semi-dry crop; annual intensity of irrigation to be restricted to 100%; cropping period to be restricted within the irrigated season, i.e., 31st June to 31st January and ambitious lift irrigation schemes to be discouraged. It, thus, quantified such area for Tamil Nadu to be 24.71 lakh acres against its claim of 29.26 lakh acres. As far as Karnataka is concerned, the Tribunal noticed that in the pre 1924 Agreement era, irrigation in the then State of Mysore was primarily from direct diversion channels from the rivers together with the system of tank irrigation and that in the absence of any reservoir, the waters of Cauvery and its tributaries like Kabini, Hemawathi, Harangi and Suvaranwathi used to flow through the State but their ultimate destination was the Delta State of the then State of Madras as a result whereof, even as admitted by the State of Tamil Nadu, Karnataka could develop only 3.14 lakh acres of land by 1924. This inability of the State of Karnataka to develop its land for irrigation in the background of its persistent cavil of being deprived of its legitimate share and use of the water of Cauvery cannot be ignored. It is a recorded fact that though under the 1924 Agreement, Karnataka in terms of the relevant provisions thereof ought to have developed 7.45 lakh acres by 1974, it could achieve only 2.15 lakh acres. However, the Tribunal in all allowed

18.85 lakh acres of area to Karnataka being under irrigation prior to 1974 against its claim of 20.98 lakh acres. In case of Karnataka as well, the Tribunal excluded the development of second crop in view of the scarcity of water in the basin with due regard to the rainfall pattern and even suggested restrictions on the crop variety and the duration thereof. On an overall consideration of the relevant materials and having regard to the imperative of economy of consumption of water, the approach of the Tribunal cannot be found fault with having regard to the existing situation. [Para 380] [1102-A-G]

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

9.1 The Tribunal, on the basis of the overall materials before it, took note, amongst others, of the crop pattern, duration of the crops, consumption of water thereby, soil conditions conducive thereto, rainfall pattern, Delta and system efficiency along with the drought conditions of Karnataka as projected by it, in conjunction with the testimony of the expert witnesses of both the States of Tamil Nadu and Karnataka, and in the interest of economical use of the water of the deficit basin, allocated 250.62 TMC to Karnataka for its irrigated area of 18.85 lakh acres and

390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh acres. Further, the Tribunal has considered the crop water requirement, namely, crop duration, ET crop, puddling requirements, percolation losses, effective rainfall and system efficiency. [Para 382] [1104-A-C]

9.2 Keeping in view the accepted principles, neither the analysis undertaken by the Tribunal nor the findings relatable thereto can be regarded as implausible by any standard. Certain parameters have been exhaustively examined by the Tribunal on the basis of the materials brought on record with supporting reasons and, therefore, the conclusion as regards assessment of water for irrigation needs cannot be termed as untenable, warranting interference in the exercise of this Court’s jurisdiction under Article 136 of the Constitution of India. [Para 382] [1104C-E]

9.3 The assessment by the Tribunal, encapsules the factual and characteristically complex situation. Lands have already been irrigated. It is an issue of sustenance at the ground reality level. To reduce the allocation of water on this score would be inequitable. Therefore, in the obtaining fact situation, no interference is warranted. That apart, having regard to the degree of wiredrawn complexities involved, requiring in-depth expertise to dislodge the otherwise well-reasoned findings of the Tribunal founded on an exhaustive appreciation of the materials on record, the determination made by it in this regard cannot be upset. [Para 383] [1105-B-C]

10. Water allocation for the State of Kerala: In respect of the claim of Kerala, it is a matter of record that rainfall is evenly distributed over the months of May to November so much so that occasional support by artificial irrigation is required in the instances of shortfall in rains and that too during small periods. Against its demand of 99.8 TMC under different heads, it had demanded 35 TMC for transbasin diversion to generate hydro-electrical power. The Tribunal rejected the State’s request for transbasin diversion for hydro-power projects which, in terms of the National Water Policy of 2002, was even otherwise lower in preference to drinking water and irrigation. The Tribunal in adjudging the State’s share did notice that it had been unsuccessful in furthering its projects so much so that pending the completion and utilization thereof, the unutilized water allocated to it subject to the mechanism set up by the Cauvery Management Board/Regulatory Authority, would be received by Tamil Nadu. The Tribunal examined the information furnished by it in the common format and adjudged 29.76 TMC which was rounded upto 30 TMC as its share after due regard to its demand, amongst others, pertaining to different projects in Kabani, Bhavani, and Pambar basins having regard to their individual features and corresponding crop water requirement. This allocation included the share for domestic and industrial water purposes as well with the population projection for 2011. The findings of the Tribunal are not belied by the materials in support thereof and, therefore, the same is accepted by this Court. [Para 384] [1105-E-H; 1106-A]

Tamil Nadu Cauvery Neerppasana Vilaiporulgal

Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India and others (1990) 3 SCC 440 : [1990] 3 SCR

83 – referred to.

11. Water allocation for the Union Territory of Puducherry:

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

12. Recognition of ground water as an additional source in Tamil Nadu:

12.1 While exploring the possibility of ground water as an additional source to be conjunctively used along with the surface flow of river Cauvery, the factual matrix reveals, based on empirical data, that the contributions thereto are from surface water through infiltration into the ground by way of natural recharge, stream flow, lakes and reservoirs. The recharge of ground water is principally from rainfall as well as artificial modes, namely, application of water to irrigate crops, flooding of areas caused by overflowing of streams to their sites and seepage from unlined canals, tanks and other sources. Ground water, as the study by the Central Ground Water Board, Ministry of Water Resources, Government of India attests, caters to more than 45% of irrigation in the country. As against the stand of Tamil Nadu that the ground water within its Delta areas is mainly by way of recharge from the supplies of Mettur Dam which really is a component of the surface flow of river Cauvery and further that the same is utilized by the farmers for raising of early nurseries ahead of releases from Mettur and for irrigating belated crops after stoppage of Mettur releases, exhaustive studies undertaken, amongst others, by the Central Ground Water Board, Ministry of Water Resources, Government of India, Irrigation Commission, 1972 and United Nations Development Programme evidenced availability of replenishable ground water in Tamil Nadu. [Para 386] [1106-D-H; 1107-A]

12.2 The United Nations Development Programme in its report, amongst others, mentioned that yearly quantity of ground water that can be extracted by using centrifugal pumps in the Cauvery sub-basin, Vennar sub-basin and in the new Delta was

33.7 TMC, 5.4 TMC and 32.5 TMC respectively and in addition

56.5 TMC of ground water per year can also be made available in the Cauvery sub-basin by lowering seasonally ground water level to 10 meters depth below the regional ground water level. Other studies made by the team of the Central Ground Water Board indicated ground water potential in the Delta area of Tamil Nadu to the extent of 64 TMC. The report of Mr. W. Berber, Consultant, World Bank on Ground Water Resources of Cauvery Delta estimated the available ground water in Cauvery Delta at 51.56 TMC. Tamil Nadu, in its pleadings, admitted that the total ground water extraction during the year 1989 was approximately 28.4 TMC in the Cauvery sub-basin, 7.3 TMC in the Vennar sub-basin and 11.3 TMC in the Grand Anicut Canal area (new Delta area) totaling 47 TMC. Tamil Nadu, in its pleadings, also mentioned that in the old Delta, there was a scope of conjunctive use of ground water to the extent of 30 TMC. [Para 386] [1107-A-D]

12.3 On the basis of these recorded and empirical inputs, the Tribunal returned a finding that in a normal year when there would be regular releases of water from Mettur, the bulk of contribution to ground water in the Cauvery sub-basin would be from such releases, but in any case, the contribution from surface irrigation and rainfall could by no means be overlooked. On weighing the pros and cons and having regard to the severe limitations in the mechanism for assessment of ground water resource, the Tribunal made an extremely safe estimate of 20 TMC of ground water which, in its view, could be used by Tamil Nadu conjunctively with surface water. In categorical terms, the Tribunal clarified that this quantum was arrived at after excluding the component of ground water recharge from river water bilateral infiltration. [Para 386] [1107-E-F]

12.4 The assertion made on behalf of Karnataka that ground water being a renewable resource, if not extracted regularly, would reduce the absorption capacity of the underlying aquifer resulting in rain water/surface water turning into wastage as run-off and that the admission of Tamil Nadu in its pleadings of availability of 30/47 TMC as ground water warranted reduction of at least 20 TMC, as estimated by the Tribunal, from the final allocated share of Tamil Nadu with proportionate reduction in the quantum of water to be provided by Karnataka at the interstate border, assumes significance. Having regard to the overwhelming empirical data following multiple research studies by different authorities authenticating beyond doubt availability of replenishable ground water in the Delta areas of Tamil Nadu,

20 TMC of ground water quantified by the Tribunal is an eminently safe quantity to be accounted for in finally allocating/apportioning the share of Cauvery water. Though over-extraction of ground water in the absence of adequate replenishment and further in the areas proximate to the coastal zone is generally avoidable. However, in the attendant facts and circumstances, in view of the studied scrutiny of all pertinent facets of the issue by balancing all factors, at least 10 TMC of ground water available in the Delta areas of Tamil Nadu can be accounted for in finally determining the apportionment of the share of the otherwise deficit Cauvery basin without touching the yield of 740 TMC. [Para 386] [1107-H; 1108-A-D]

12.5 The national policies, do not, as such, debar the conjunctive use of ground water, the only caveat being periodical assessment on a scientific basis thereof and to guard against exploitation of the said resource so as not to exceed the recharging possibilities. [Para 387] [1108-E-F]

12.6 The series of research studies made by different authorities and the range of availability of ground water as indicated by the experimental data, not only demonstrate availability of ground water in the Deltas in the State of Tamil Nadu but also that adjustment of 10 TMC thereof, as proposed, would be safely permissible. Noticeably, the kind of experiment and research that had been made in the realm of ground water availability in the Deltas of Tamil Nadu has not been undertaken in Karnataka and there is no reliable empirical data with regard thereto vis-a-vis that State. [Para 387] [1108-F-G]

13. Water allocation for Domestic and Industrial purposes in Tamil Nadu:

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

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

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

14.2 The Tribunal, at the first instance, presumed that 50% of drinking water requirement would be met from the ground water sources as it is generally seen that wells and tube-wells in urban and rural areas cater to substantial requirement of drinking water. While noting that it had called for information in the common format whereby the States had been required to project their population for the year 2000 and 2025 for working out drinking water requirement, the Tribunal, however, decided to assess the drinking water requirement as in the year 2011. On the basis of the information available, it held that only 1/3rd of the Bengaluru city lay within the Cauvery basin. It, therefore, limited its consideration of drinking water requirement of Bengaluru to that area only which was located within the Cauvery basin. It noticed that Karnataka had stated that the existing and ongoing drinking water schemes for the city were for 14.52 TMC in all as in June 1990 and also that it had claimed 30 TMC for Bengaluru city in its projection for 2025. The Tribunal, was disposed to work out the water requirement for urban and rural population on the basis of population projection of the basin for the year 2011 by adopting the percentage decennial growth for the year 1981-1991 census, district-wise and the area of each district falling within the Cauvery basin as furnished by Karnataka. The population projection of Bengaluru city on the Census Report of 2011, as furnished by Tamil Nadu, was taken note of as well. The Tribunal next quantified the water requirement of urban population to be

8.70 TMC and for rural population at 8.52 TMC. The Tribunal, as a consequence, proceeded to quantify the total drinking water requirement for urban and rural population to be 17.22 TMC (8.70 TMC + 8.52 TMC). It next assumed that 50% of the drinking water requirement would be met from ground water and the remaining 50% from the surface water. Thus, segregating

8.75 TMC to be catered to by the surface water, it worked out the consumptive use, i.e., 20% of the total for the human population including live stock to be 1.75 TMC (20% of 8.75 TMC). [Para 389] [1109-F-H; 1110-A-E]

14.3 Apart from the fact that there is no basis whatsoever for the Tribunal for having quantified the water requirement for urban population to be 8.70 TMC as well as for rural population to be 8.52 TMC, its assumption that 50% thereof would be met from ground water only in view of its perception that wells and tube-wells in urban and rural areas cater to the substantial requirement of drinking water, is unacceptable and cannot be sustained. That apart, in the context of Bengaluru city, especially in view of the growth and rise of population in space and time, the Tribunal’s approach of confining the entitlement of its population in general to only 1/3rd of their requirement only in view of the location of 1/3rd of its physical entity within the Cauvery basin demands scrutiny. True it is, the concept of a basin and the beneficial uses of the water thereof ought to be traced generally to the sites and population thereof located in the basin, nevertheless, the principles of apportionment and the conception of reasonable and equitable share perceived for such uses comprehend a basin State addressing the social and economic needs of its community as a whole. Territorial or geographical demarcation for extension of beneficial uses of an inter-state river basin cannot always be strictly construed. The perception of a basin State inheres in it a degree of flexibility in approach in a unique fact situation to justify a warrantable flexibility and departure from such rigoristic approach. The requirements of its dependent population as a whole for drinking and other domestic purposes, therefore, cannot justifiably, in the prevailing circumstances, be truncated to their prejudice only for consideration of its physical location in the context of the river basin. It will be inconceivable to have an artificial boundary and deny the population the primary need of drinking water. The Court holds so in the special features of the case keeping in view the global status the city has attained and further appreciating the doctrine of equitable proportionality on the bedrock of pressing human needs. [Para 390] [1110-E-H; 1111-A-B, D, E-F]

14.4 As per the national water policies, not only drinking water has been placed at the top of the other requirements in the order of priority, but it has also been predicated that adequate drinking water facilitates should be provided to the entire population, both in urban and rural areas and that drinking water should be made a primary consideration. It was declared as well that drinking water needs of human beings and animals should be the first charge on any available water. Article 14 of the Berlin Rules also mandates that in determining an equitable and reasonable use, the States shall first allocate water to satisfy vital human needs. [Para 391] [1111-F-H]

14.5 The approach of the Tribunal cannot be approved in the facts and circumstances. The allocation of water for drinking and domestic purposes for the entire city of Bengaluru has to be accounted for. Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing water schemes for Bengaluru and 8.00 TMC for the ongoing drinking water schemes for the city as in June, 1990. It had demanded 30 TMC as drinking water requirement for the city with the projection of 2025. Having regard to the percentage of decennial growth, as has been adopted by the Tribunal, in 2011, the demand of Karnataka for drinking water requirement for Bengaluru city would be in the vicinity of 24 TMC. Even excluding the computation for urban population of the State to be 8.70 TMC as arrived at by the Tribunal and that too without any basis and accepting the water requirement of rural population to be 8.52 TMC though also without any basis, the total figure representing drinking and domestic water requirement of the urban and rural population would be 32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimed by Karnataka in its statement. Having rejected the assumption that 50% of the drinking water requirement would be met from ground water, this 33 TMC would, be a safe and acceptable figure qua drinking and domestic water requirement of the State of Karnataka for its urban and rural population. By applying the consumptive percentage of 20%, the volume of water to be allocated to Karnataka on this count would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase by 4.75 TMC. [Para 392] [1112-A-E]

14.6 Qua the view against transbasin diversion, not only in the context of Bengaluru city, a digression from the confines of the concept of in-river basin would be justified, since the National Water Policy of 1987, in categorical terms, enjoined that water should be made available to water short areas by transfer from other areas including transfers from one river basin to another. This very conspicuously emphasizes on an inclusive comprehension and in a deserving case like Bengaluru city, it would not be incompatible with the letter and spirit of the factors that ought to inform the determination of reasonable and equitable share of water in an inter-state river as well as of the national policies formulated for planning and development of the precious natural resource involved. [Para 393] [1112-F-H]

15. Allocation of water towards environmental protection:

On the aspect of allocation qua environmental protection, the Tribunal, in order to secure the purity of environmental and ecological regime in view of the injudicious use of available resources by human beings compounded by population explosion and distorted lifestyles and having regard to the spectre of river water pollution on account of industrial development and deforestation leading to siltation of reservoirs, etc., assigned 10 TMC to be reserved from the common pool to meet the environmental aspects. The endeavour and the initiative of the Tribunal is appreciable, having regard to the sustenance of purity of environment to which every individual is entitled and also simultaneously obliged to contribute to cultivate the feeling of environmental morality. Therefore, the Court is not inclined to interfere in any manner in the allocation of the quantum of 10 TMC towards environmental protection. [Paras 394 and 395] [1113-A-D]

16. Revised allocation amongst competing States:

16.1 With the evolution of the principle of equitable apportionment which is really to ensure equal justice to the basin States, the concept of prescriptive right or right to the natural flow of any inter-state river has ceased to exist. Having regard to the historical facts which demonstrate the constraints suffered by Karnataka resulting in its limited access and use of the surface flow of Cauvery in spite of being the upper riparian State, compared to Tamil Nadu, then Madras presidency, as well as severally drought conditions in its 28 districts/taluks, the Court is inclined to award an additional quantity of water to it in the measure of 14.75 TMC in all, i.e., 10 TMC (on account of availability of ground water in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes including such need for the whole city of Bengaluru). On these considerations, Karnataka is more deserving amongst the competing States to be entitled thereto. Out of this, 14.75 TMC would be deducted from the quantum allocated by the Tribunal in favour of Tamil Nadu. Thus, the final allocation of the shares in view of this determination would be as under:-

: 284.75 (270 + 14.75) TMC

Tamil Nadu

: 404.25 (419 – 14.75) TMC

Kerala

: 30 TMC

UT of Pondicherry

: 7 TMC

Environmental Protection

: 10 TMC

Inevitable escapagaes into sea

: 4 TMC

Total

: 740 TMC

[Para 396] [1113-E-H; 1114-A-B]

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

16.3 The Tribunal directed appointment of a Regulatory Authority to properly monitor the working of monthly schedule with the help of the concerned States and Central Water Commission and further directed that the upper riparian State shall not take any action so as to affect the scheduled deliveries of water to the lower riparian States. [Para 399] [1115-A-B]

16.4 In view of the reduction in the quantum of water, now required to be released by Karnataka at the inter-State border with Tamil Nadu, i.e., at Billigundulu, there would be, logically, a proportionate decrease in the monthly releases as worked out by the Tribunal. However, the same pattern therefor, as modeled by it would be maintained for the reduced releases. [Para 400] [1116-B]

17. Interpretation of s. 6A of inter-State water disputes Act, 1956:

17.1 The award of the Tribunal has to be treated as decree of the Supreme Court. It is so stated in Section 6(2) of InterState Water Disputes Act, 1956 to give teeth to the award passed by the Tribunal so that none of the States can raise objection to the same and be guided by the directions of the Tribunal. The purpose of framing the scheme is exclusively for implementation of the award. The purpose of Section 6A is to act in the manner in which the award determines the allocation and decides the dispute with regard to allocation or sharing of water. Therefore, it is directed that a scheme shall be framed by the Central Government within a span of six weeks from the date of the present judgment, so that the authorities under the scheme can see to it that the present decision which has modified the award passed by the Tribunal is smoothly made functional and the rights of the States as determined by this Court are appositely carried out. It is categorically conveyed that the need-based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the scheme on any ground. [Para 403] [1119-F-H; 1120-A-B]

17.2 Union of India is not correct in contending that Section 6A of the 1956 Act by employing the word “may” has left room for discretion to the Central Government for the purpose of framing a scheme. The framing of the scheme is exclusively meant for implementation of the award or as the same gets modified by this Court. Subject to the scheme to be formulated under Section 6A of the 1956 Act, in terms of the present adjudication, the recommendations/directives of the Tribunal with regard to the monthly releases and not inconsistent with anything decided herein, are hereby endorsed for the present for a period of 15 (fifteen) years hence. [Para 404] [1123-C-E]

18. Maintainability of the Appeals by Special Leave:

18.1 The legislative intendment of Section 6(2) of InterState Water Disputes Act, 1956, is not to create any kind of embargo on the jurisdiction of Supreme Court. The said provision was inserted to give the binding effect to the award passed by the Tribunal. The fiction has been created for that limited purpose. Section 11 of the 1956 Act bars the jurisdiction of the courts and that is in consonance with the language employed in Article 262 of the Constitution. The Founding Fathers had not conferred the power on this Court to entertain an original suit or complaint and that is luminescent from the language employed in Article 131 of the Constitution and from the series of pronouncements of this Court. Section 6 cannot be interpreted in an absolute mechanical manner and the words “same force as an order or decision” cannot be treated as an order or decree for the purpose of excluding the jurisdiction of this Court. It cannot be a decree as if this Court has adjudicated a matter and passed a decree. The Parliament has intended that the same shall be executed or abided as if it is a decree of this Court. A provision should not be interpreted to give a different colour which has a technical design rather than serving the object of the legislation. Therefore, Section 6(2) does not bar the jurisdiction conferred on this Court under Article 136. [Para 18] [871-H; 872-A-E]

18.2 While adjudicating a matter of such a nature the Court cannot be totally guided exclusively either by “broad” or extraordinary discretionary or “narrow” or restrictive approach but it would be appropriate to have an intermediary approach as the controversy covers a span of more than 100 years involving change in boundaries, population growth and subsequent events. Though the parameters of applicability of Article 136 can be broad to appreciate the materials and scrutinize the manner of appreciation by the Court/Tribunal depending upon the lis raised. In the present appeals preferred by special leave, it would be appropriate for the Court to adopt an approach which is neither broad nor narrow but an “intermediary one”, especially having regard to the nature of the dispute that involves the inhabitants of three States and a Union Territory. [Para 382] [1104-F-H; 1105-A] State of Tamil Nadu v. State of Karnataka and others (1991) Suppl. 1 SCC 240 : [1991] 2 SCR 501 – relied on.

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

Union of India and another v. Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131; Satyavir Singh and others v. Union of India and others (1985) 4 SCC

252 : [1985] 2 Suppl. SCR 791; A.K. Kaul and another v. Union of India and another (1995) 4 SCC 73 : [1995]

3 SCR 469; Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211; P.S.R. Sadhanantham v.

Arunachalam and another (1980) 3 SCC 141; Bengal Chemicals & Pharmaceuticals Works Ltd., Calcutta v. Their Workmen [1959] (Supp) 2 SCR 136; Jose Da Costa & another v. Bascora Sadasiv Sinai Narcornim and others. (1976) 2 SCC 917; Ram Piari v. Bhagwant and others (1990) 3 SCC 364 : [1990] 1 SCR 813; Phulchand Exports Ltd. v. O.O.O. Patriot (2011) 10 SCC 300 : [2011] 15 SCR 1129; Crompton Parkinson (Works) Pvt. Ltd., Bombay v. Its Workmen and others [1959] Suppl. (2) SCR 936; Vashit Narain Sharma v. Dev Chandra and others [1955] 1 SCR 509; Ram

Bharosey Agarwal v. Har Swarup Maheshwari (1976)

3 SCC 435; Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and another (2004) 3 SCC

214 : [2004] 1 SCR 483 – referred to.

Anisminic Ltd. v. Foreign Compensation [1969] 1 All ER 208; The State of Washington Department of Ecology v. Clarence E. and Peggy V. Grimes 121 Wash. 2d. 459; In Re: Hague v. Nephi Irrigation Co. 16 Utah 421, 52 P. 765 (1898) : 41 LRA 311 – referred to.

Craies on Statute Law Interpretation – referred to.