TMI Blog2016 (12) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... 956 Act gives it a broad meaning, as has been held by this Court. When the principles of statutory interpretation is applied to understand the legislative intendment of Section 6(2) it is clear as crystal that the Parliament did not intend to create any kind of embargo on the jurisdiction of this 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, as stated earlier, bars the jurisdiction of the courts and needless to say, 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. Be it clearly stated that Section 6 cannot be interpreted in an absolute mechanical manner and the words same force as on order or decision cannot be treated as a decree for the purpose for excluding the jurisdiction of this Court. The Civil Appeals are maintainable - Let the Appeals be listed at 3 p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2016 that Union of India had sought for some modification of the earlier order. The matter was taken up on 4th of October, 2016. On that day, the Court noted that the order passed by it relating to release of water had been complied with. Thereafter, it adverted to the I.A. 18 of 2016 which had been filed on behalf of the Union of India seeking modification of the orders dated 20th of September, 2016 and 30th of September, 2016. After reproducing the prayer, the Court dwelled upon the submissions of Mr. Rohatgi, learned Attorney General for India, Mr. F.S. Nariman and Mr. Shekhar Naphade, learned senior Counsel appearing for the States of Karnataka and Tamil Nadu respectively and thereafter passed the following order: It is the submission of Mr. Rohtagi that as it is a debatable issue, the Court may not advert to the issue of review or recall but defer it to be considered at the time of the final disposal of the appeal. As advised, at present, we think it appropriate to defer the same. At this stage, we are obliged to state that in course of hearing, we asked Mr. Nariman, learned senior Counsel that the note he has filed (which we have reproduced her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates relating to the Cauvery basin. Mr. Rohtagi, learned Attorney General submitted that in paragraph 15 of the IA No. 18 of 2016, he has given certain suggestions. Paragraph 15 reads as follows: (15) it is submitted that it would be in the fitness of things that a High Powered Technical Team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources. The composition of the Technical Team would Shri G.S. Jha, Chairman/Member, Central Water Commission (CWC), Government of India (who would be the Chairman of the said Team), Shri Syed Masood Hussain, Member (CWC), Shri R.K. Gupta, Chief Engineer (CWC) and such other experts as decided by Secretary, Ministry of Water Resources in consultation with Chairman, CWC to proceed immediately to the site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon ble Court. This Technical Team will inspect the entire Basin, make an assessment of the entire issue, prepare a report forthwith within 30 days thereof. It is found that Karnataka has the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be released by the State of Karnataka. At that point of time, learned Attorney General submitted that the appeals, by special leave, preferred by the States, namely, Tamil Nadu, Karnataka and Kerala are not maintainable. The submission of Mr. Rohatgi was echoed by Mr. A.S. Nambiar, learned senior Counsel appearing for the Union Territory of Puducherry. In view of the aforesaid submission, it was decided to hear the maintainability of the appeals and the interim order passed on earlier occasion was directed to be continued until further orders. The issue of maintainability of appeals was heard and ultimately the order was reserved. 4. Mr. Rohatgi, while questioning the maintainability of the appeals by special leave, submitted that Article 262(2) of the Constitution read with Section 11 of the 1956 Act bars the jurisdiction of this Court to adjudicate upon any water dispute as defined Under Section 2(c) of the 1956 Act. Expatiating the said proponent, it is urged by him that Article 262 begins with a non-obstante Clause and authorizes the Parliament to provide by law to exclude the jurisdiction of this Court or any other court in respect of a dispute or complaint t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has drawn inspiration from the authority in Rupa Ashok Hurra v. Ashok Hurra and Anr. (2002) 4 SCC 388. 6. Mr. Nariman, learned senior Counsel appearing for the State of Karnataka resisting the submissions of the learned Attorney General has referred us to the Draft Constitution dated 21.02.1948 prepared by the Drafting Committee which contained the progenitor of Article 136 of the Constitution; the Constituent Assembly debates pertaining to Article 112(1) and (2); history of Article 262 and submitted that the protective, preclusive or ouster clauses are not unknown to the legislature and the legislature has frequently used the provisions for restricting or eliminating power of judicial review, but the judicial pronouncements in this country are consistent that the jurisdiction of the courts of superior jurisdiction are unaffected by such provisions. The learned senior Counsel has referred to many authors and tests to highlight the principle that the jurisdiction of the Supreme Court is guaranteed by the constitutional provisions, and the exclusion of its jurisdiction is not to be easily inferred. It is propounded by Mr. Nariman that the decisions upon which reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by the tribunal and a tribunal always remains a tribunal, for all purposes, and it is impossible to draw the inference that it ousts the jurisdiction of this Court Under Article 136 of the Constitution. According to him, acceptance of such a stand would tantamount to rewriting Article 136 itself. Elucidating further, Mr. Nariman contends that Section 6(2) has been inserted by the Amending Act 14 of 2002 with effect from 06.08.2002 to give teeth to the final order of the tribunal in accordance with the Sarkaria Commission s recommendations given in its report on Center-State Relations, 1980. That apart, submits learned senior Counsel that it is the settled principle of law that even when there is a legal fiction, like a deeming provision, the interpretation of the said provision should not go beyond the purpose for which the fiction was created or expand the horizon which it was never meant to reach. For reinforcing the contention, reliance has been placed on Aneeta Hada v. Godfather Travels and Tours Private Limited (2012) 5 SCC 661 and State of Uttar Pradesh v. Hari Ram (2013) 4 SCC 280. 8. Mr. Naphade, learned senior Counsel appearing for the State of Tamil N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution but must also be in accordance with law and that power of judicial review is conferred by the Constitution with a view to ensure that the supremacy of law is sustained. It is further put forth by him that the tribunal which is constituted Under Section 4 of the 1956 Act is not a constitutional functionary as contemplated by the Constitution and, therefore, the argument on behalf of the Union of India that Article 262 being a part of the original Constitution, any law made Under Article 262 can oust the jurisdiction of this Court including the power of judicial review Under Article 136 is wholly untenable. It is additionally expounded in this regard that there is a qualitative difference between the provisions of the Constitution and the law made under the Constitution. For the aforesaid purpose, he has drawn inspiration from certain passages from Nabam Rebia (supra). 10. Mr. Naphade has scanned the anatomy of the 1956 Act to substantiate that the legal fiction contemplated Under Section 6(2) of the 1956 Act operates only with regard to the execution of the decision of the tribunal which has the same force as an order or decree of this Court and cannot be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute. [Emphasis supplied] 13. At a later part of our decision, we shall delve into the authorities that have dealt with the said provision to appreciate the purpose, impact and the ambit of the same, but it is suffice to say at this stage that the power Under Article 131 of the Constitution, subject to the other provisions of the Constitution, can be exercised in respect of any original dispute. 14. At this stage, it is essential to understand the constitutional scheme as regards the conferment of power on the judiciary. Articles 132 to 134(2) deal with appellate jurisdiction of Supreme Court in appeal from High Courts in certain cases, appellate jurisdiction of Supreme Court in appeal from High Courts in case of civil matters and appellate jurisdiction of Supreme Court with regard to criminal matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies Under Article 134-A that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub Clause (c) shall lie subject to such provisions as may be made in that behalf under Clause (1) of Article 145 and to such conditions as the High Court may establish or require. (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law. 15. Article 134-A provides for Certificate for appeal to the Supreme Court by every High Court passing or making a judgment, decree, final order, or sentence, referred to in Clause (1) of Article 132 or Clause (1) of Article 133, or Clause (1) of Article 134 either on its own motion, if it deems fit so and upon oral application made by or on behalf of the party aggrieved, immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as; or has been; continued in operation after that date; (ii) a dispute to which any State is a party, if the dispute arises out of any provision of a treaty, agreement, engagement, sanad or other similar instrument which provides that the said jurisdiction shall not extend to such a dispute. 17. The draft Article 112 was couched in the following language: 112. The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India except the States for the time being specified in Part III of the First Schedule in cases where the provisions of Article 110 or Article 111 of this Constitution do not apply. 18. On 16.10.1949 draft Article 112 was substituted by a new draft Article 112(1) and (2). Articles 112(1) and (2) which were adopted and added to the Constitution by the Constituent Assembly, read as follows: (1) The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination sentence or order in any cause or matter passed or made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of the rights conferred by the said Part of the Constitution. The said Article reads as follows: 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2). (4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution. 23. This Court, interpreting the broad canvas of Article 32 of the Constitution, has ruled that it is the duty of the Supreme Court to provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 of the Constitution. In spite of the same, there is certain scope for exercise of jurisdiction. In this context, we may refer to certain authorities. 26. In State of Orissa v. Government of India and Anr. (2009) 5 SCC 492 Kabir, J. (as His Lordship then was) taking note of the fact that though a complaint had been made by the State of Orissa, yet the Central Government had not taken any action in the matter and further considering the facts in issue, opined that the controversy that had arisen between the States of Orissa and Andhra Pradesh must be held to be a water dispute within the meaning of Section 2(c)(i) of the 1956 Act which refers to any dispute between two or more State Governments with regard to use, distribution or control of the waters of, or in, any inter-State river or river valley. The issue arose relating to the power of the Court to pass interim order inasmuch the tribunal had not yet been constituted. Analyzing the law, the learned Judge opined thus: 49. Coming to the question of grant of interim order during the interregnum, I am satisfied that unless some interim protection is given till the constitution of the Water Dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . And nothing more. 29. In this context, it is seemly to refer to the authority Networking of Rivers, In Re (supra) wherein a three-Judge Bench was dealing with a writ petition filed Under Article 32 of the Constitution seeking the relief for issue of an appropriate writ, order or direction, more particularly a writ in the nature of mandamus directing the Respondent No. 1 therein to take appropriate steps/action to nationalize all the rivers in the country. That apart, further directions were also sought. Interpreting Article 262 of the Constitution, the Court held: 66. ... Under the constitutional scheme, there is a clear demarcation of fields of operation and jurisdiction between the legislature, judiciary and the executive. The legislature may save unto itself te power to make certain specific legislations not only governing a field of its legislative competence as provided in the Seventh Schedule of the Constitution, but also regarding a particular dispute referable to one of the articles itself. Article 262 of the Constitution is one of such powers. ... Further elaborating the said Article, the three-Judge Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted Under Section 3 of the Act. If a matter fell outside the scope of these three crucial words, the power of Section 11 in ousting the jurisdiction of the courts in respect of any water dispute, which is otherwise to be referred to the Tribunal, would not have any manner of application. The test of maintainability of a legal action initiated by a State in a court would thus be, whether the issues raised therein are referable to a Tribunal for adjudication of the manner of use, distribution and control of water. [Emphasis supplied] 30. This is how this Court has perceived the test of maintainability of an action initiated by a State in the context of Article 32 of the Constitution to sustain a legal action before this Court, that is, the lis must fall outside the scope of Section 11 of the 1956 Act. 31. Presently, let us proceed to analyse what has been precisely conveyed Under Article 262 of the Constitution. Article 262 comes under Part XI of the Constitution that deals with relations between the Union and the States. Chapter I of Part XI provides for legislative relations and Chapter II deals with administrative relations. Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w by the Supreme Court and the Commission had to thereupon make ( shall make ) such modifications in the Report as were necessary to bring it in accord with the opinion of the Supreme Court and present the Report so modified to the President; (f) Effects had to be given in any State to any order made by the President and any act of the Legislature of a State repugnant to the Presidential order would be, to the extent of repugnancy, void; and (g) Notwithstanding anything in the Constitution neither the Supreme Court nor any other Court would have jurisdiction to entertain any action or suit in respect of any matter if action in respect of that matter might have been taken under any of the preceding Articles by the Government of a State or the President. 33. The actual Articles in the Draft Constitution prepared by the Drafting Committee on 21.02.1948 read as follows: 239. If it appears to the Government of any State for the time being specified in Part I or Part III of the First Schedule that the Interests of that State, or of any of the inhabitants thereof, in the water from any natural source of supply in any State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering any report made to him by the Commission the President shall, subject as hereinafter provided, make orders in accordance with the report. (7) If upon consideration of the Commission s report the President is of the opinion that anything therein contained involves a substantial question of law he shall refer the question to the Supreme Court Under Article 119 of this Constitution and on receipt of the opinion of the Supreme Court thereon shall, unless the Supreme Court has agreed with the Commission s report, return the report to the Commission together with the opinion and the Commission shall thereupon make such modifications in the report as may be necessary to bring it in accord with such opinion and present the report as so modified to the President. (8) Effect shall be given, if any State affected, to any order made under this Article by the President, and any Act of the Legislature of a State which is repugnant to the order shall, to the extent of the repugnancy, be void. (9) The President, on application made to him by the Government of any State affected, may at any time, if a Commission appointed as aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or authority has not been conferred at the commencement of the Constitution. As indicated earlier, Mr. Nariman and Mr. Naphade appearing for the States of Karnataka and Tamil Nadu respectively would contend that it is neither the intention of the founding fathers of the Constitution nor the language employed in the said Article even remotely so suggest that the architects of the Constitution had ever intended that a final order passed by a tribunal created by the Parliament for adjudication would be free from challenge and remain absolutely immune from assail. 35. In this backdrop, it is necessary to peruse and analyse the authorities cited by the learned Counsel for the parties. The Constitution Bench in In Re: Cauvery Water Disputes Tribunal (supra) was dealing with the reference made by the President Under Article 143 of the Constitution wherein three questions were referred for the opinion of this Court. As the factual matrix would show, in pursuance of direction given by this Court in Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam (supra) the Union Government by its notification dated 02.06.1990 constituted the Cauver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaves no manner of doubt that notwithstanding anything in the Constitution, Parliament is authorised by law to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint relating to the use, distribution or control of the waters of, or in, any interstate river or river valley. The dispute referred by the Central Government to the Tribunal under the Act relates to the above controversy and as such this Court has no jurisdiction to decide the merits of the dispute raised by the Appellants and pending before the Tribunal. The controversy, however raised by the Appellants in these appeals is that they had submitted the applications before the Tribunal for granting interim relief on the ground of emergency till the final disposal of the dispute and the Tribunal wrongly held that it had no jurisdiction to entertain the same. The Tribunal is a statutory authority constituted under an Act made by the Parliament and this Court has jurisdiction to decide the parameters, scope, authority and jurisdiction of the Tribunal. It is the judiciary i.e. the courts alone that have the function of determining authoritatively the meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights. xxxxx 22. The above passage clearly goes to show that the State of Tamil Nadu was claiming for an immediate relief as year after year, the realisation at Mettur was falling fast and thousands of acres in their ayacut in the basin were forced to remain fallow. It was specifically mentioned that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay is adding to the injury caused to their existing irrigation. The Tribunal was thus clearly wrong in holding that the Central Government had not made any reference for granting any interim relief. We are not concerned, whether the Appellants are entitled or not, for any interim relief on merits, but we are clearly of the view that the reliefs prayed by the Appellants in their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government Under Section 5 of the Act. The Tribunal has not held that it had no incidental and ancillary powers for granting an interim relief, but it has refused to entertain the C.M.P. Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution. 38. While dealing with question No. 1, that is, whether the Ordinance and the provisions thereof are in accordance with the provisions of the Constitution, the Court referred to Article 131 and thereafter opined thus: 56. It is clear from the Article that this Court has original jurisdiction, among other things, in any dispute between two or more States where the dispute involves any question whether of law or fact on which the existence and extent of 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 Article 262 of the Constitution to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint with respect to the use, distribution or control of the water of, or in, any inter-State river or river valley. Section 11 of the Act, namely, the Inter-State Water Disputes Act, 1956 has in terms provided for such exclusion of the jurisdiction of the courts. It reads as follows: 11. Notwithstanding anything contained in any other la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them that as per the dictum of the Constitution Bench, this Court cannot take cognizance of an original dispute or complaint, but within that purview the assail to final order of the tribunal does not come and hence, the power of the Court in that regard remains unaffected. 40. In State of Karnataka v. State of A.P. (supra), another Constitution Bench was dealing with a suit filed Under Article 131 of the Constitution. While expressing the opinion, Pattanaik, J. (as His Lordship then was) has held: 24. Article 131 being subject to the other provisions of the Constitution including Article 262, if Parliament has made any law for adjudication of any water dispute or a dispute relating to distribution or control of water in any inter-State river or river valley, then such a dispute cannot be raised before the Supreme Court Under Article 131, even if the dispute be one between the Centre or the State or between two States. In exercise of constitutional power Under Article 262(1), Parliament, in fact has enacted the law called the Inter-State Water Disputes Act, 1956 and Section 11 of the said Act provides that neither the Supreme Court nor any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication of any dispute in regard to use, distribution or control of the waters of, or in, any inter-State river or river valley. Article 262 is specific as regards adjudication of disputes pertaining to water whereas Article 131 provides for a general power and conferment of jurisdiction of the Supreme Court in the event of there being any dispute between two States etc. etc. There is neither any conflict between Article 262 and Article 131 nor, thus, the fields covered therein overlap each other, a specific exclusion has been thought of by our Constitution-framers and been provided for in the Constitution. The learned Judge referred to authority in the earlier Constitution Bench decision rendered in In Re: Cauvery Water Dispute Tribunal (supra) to express the aforesaid view. 43. The said pronouncement has to be appreciated in a seemly perspective. The issue arose whether the suit filed Under Article 131 of the Constitution pertained to water dispute which required to be referred to the tribunal under the 1956 Act. In that context, the Court opined that if it is a water dispute, jurisdiction of this Court is excluded but Court has to see the av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Tribunal. Section 2(c) of this Act defines water dispute . It, inter alia, means a dispute as to the use, distribution or control of the waters of, or as to the interpretation or implementation of the agreement of such waters. After so observing, the Court held that the dispute in the said case was not one contemplated by Section 2(c) of the 1956 Act. The Court so held as the main issue was about the safety of the dam on increase of the water level and for determining the said issue, neither Article 262 of the Constitution nor the provisions of the 1956 Act had any applicability. Being of this view, it repelled the contention that the jurisdiction of the Court in regard to the controversy raised was barred Under Article 262 read with Section 11 of the 1956 Act. 46. In Atma Linga Reddy (supra), a writ petition was filed by the Petitioners as pro bono publico praying for issue of an appropriate writ, direction or order restraining the State of Karnataka and Sree Swarna Energy Limited from constructing a mini hydro power project at Rajolibanda Diversion Scheme (RDS), Raichur District, Karnataka by quashing and cancelling the power project. A prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -known maxim ubi jus ibi remedium (wherever there is right, there is remedy). Dealing with the said stand, the Court held as follows: 38. In our considered opinion, however, preliminary objections raised on behalf of the contesting Respondents are well founded and are required to be upheld. We have already extracted the relevant provisions of the Constitution as also of Act 33 of 1956. The Founding Fathers of the Constitution were aware and conscious of sensitive nature of inter-State disputes relating to waters. They, therefore, provided machinery for adjudication of such disputes relating to waters of inter-State rivers or river valleys. By enacting Article 262, they empowered Parliament to enact a law providing for adjudication of any dispute or complaint with respect to the use, distribution or control of waters of any inter-State river or river valley. They, however, did not stop there. They went ahead and empowered Parliament to exclude the jurisdiction of all courts including the final court of the country in such disputes. The intention of framers of the Constitution, in our opinion, was clear, obvious and apparent. It was thought proper and appropriate to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit Under Article 131 of the Constitution. One of the issue that was framed by the Court was whether the suit was maintainable Under Article 131. Dealing with the said issue, the Court referred to the authority in State of Karnataka v. State of A.P. (supra) and State of Haryana (supra) and opined that when a contention is raised that a suit filed Under Article 131 of the Constitution is barred Under Article 262(2) of the Constitution read with Section 11 of the 1956 Act, what is necessary to be found out is whether the assertions made in the plaint and the relief sought for, by any stretch of imagination, can be held to constitute a water dispute so as to oust the jurisdiction of this Court Under Article 131 of the Constitution. Thereafter the Court proceeded to hold that from the assertions made in the entire plaint as well as the reliefs claimed therein by the Plaintiff, the dispute did not relate to inter-State river water issue or the use thereof, and actually relate to sharing of power generated in the Bhakra-Nangal and the Beas Projects and such a dispute did not attract the law was not barred under Clause (2) of Article 262 of the Constitution read with Section 11 of the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or (b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a Tribunal for adjudication. 52. Section 5 provides for adjudication of water disputes. Section 11 stipulates that neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a tribunal under the 1956 Act. The tribunal is constituted when a request is made Under Section 3 from any State Government in respect of any water dispute. Section 4 of the 1956 Act provides that the Central Government shall constitute a Water Disputes Tribunal if it is of the opinion that the water dispute cannot be settled by negotiations. The 1956 Act, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union Territory of Pondicherry v. State of Karnataka and Ors. (supra) has opined that this Court has jurisdiction to decide the parameters, scope, authority and jurisdiction of the tribunal. It has been further held that it is the judiciary i.e. the courts alone that have the function of determining authoritatively the meaning of a statutory enactment and to lay down the frontiers of jurisdiction of any body or tribunal constituted under the statute. 54. At this stage, we may also refer to the scope of certain aspects which have been highlighted by Mr. Nariman, learned senior Counsel appearing for the State of Karnataka. According to him, the protective, preclusive or ouster clauses are to be construed strictly. He has relied on the classic text of Administrative Law by Sir William Wade (9th Edn.) wherein it has been said that ... first it must be stressed that there is a presumption against any restriction of the supervisory powers of the court . He has also relied upon case of R. v. Medical Appeal Tribunal ex parte Gilmore (1957) 1 QB 574 [at 583] wherein Denning LJ said that I find it very well settled that the remedy by certiorari is never to be taken away by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this Article in any way. [Emphasis added] And again: In the first place Article 136 is a constitutional provision which no Parliamentary legislation can limit or take away. In the second place the provision being one, which overrides ordinary laws, no presumption can arise from words and expressions declaring an adjudication of a particular Tribunal to be final and conclusive, that there was an intention to exclude the exercise of the special powers. As has been said already, the non obstante Clause in Article 329 prohibits challenge to an election either to Parliament or any State Legislature, except in the manner laid down in Clause (2) of the article. But there is no prohibition of the exercise of its powers by the Supreme Court in proper cases Under Article 136 of the Constitution against the decision or determination of an Election Tribunal which like all other judicial, tribunals comes within the purview of the article. It is certainly desirable that the decisions on matters of disputed election should, as soon as possible, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts and Appellate Tribunals under specific statutes. As we said earlier, it is a plenary power, exercisable outside the purview of ordinary law to meet the pressing demands of justice (vide Durga Shankar Mehta v. Thakur Raghuraj Singh). Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Court s jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court s jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it. 60. In P.S.R. Sadhanantham v. Arunachalam (supra) this Court (speaking through Justice Krishna Iyer) held that: ....Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is if merely a power in the court to be exercised in any manner it fancies? Is there no procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave in exceptional circumstances. (ii) It is open to this Court to interfere with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly. (iii) It is open to this Court to invoke the power Under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court. (iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it. (v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. We have referred to the aforesaid authorities solely for the purpose of accentuating the nature of jurisdiction exercised by this Court Under Article 136. 64. Having stated about the extent of jurisdiction of this Court Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the Official Gazette by the Central Government under Sub-section (1), shall have the same force as an order or decree of the Supreme Court. 68. Relying on Section 6(2), which was introduced by way of Amendment Act 2002 (Act No. 14 of 2002) that came into force from 6.8.2002, it is submitted by Mr. Rohatgi that the jurisdiction of this Court is ousted as it cannot sit over in appeal on its own decree. The said submission is seriously resisted by Mr. Nariman and Mr. Naphade, learned senior Counsel contending that the said provision, if it is to be interpreted to exclude the jurisdiction of the Supreme Court of India, it has to be supported by a constitutional amendment adding at the end of Article 136(2) the words or to any determination of any tribunal constituted under the law made by Parliament Under Article 262(2) and, in such a situation, in all possibility such an amendment to the Constitution may be ultra vires affecting the power of judicial review which is a part of basic feature of the Constitution. Learned senior Counsel for the Respondent has drawn a distinction between the conferment and the exclusion of the power of the Supreme Court of India by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal s award and the effectiveness of enforceability. Thus, it has to be narrowly construed regard being had to the purpose it is meant to serve. 70. In this context, we may usefully refer to the Principles of Statutory Interpretation, 14th Edition by G.P. Singh. The learned author has expressed thus: In interpreting a provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created1, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction2. But in so construing the fiction it is not be extended beyond the purpose for which is created3, or beyond the language of the Section by which it is created4. It cannot also be extended by importing another fiction5. The principles stated above are well-settled .6 A legal fiction may also be interpreted narrowly to make the statute workable.7 71. In Aneeta Hada v. Godfather Travels and Tours (2012) 5 SCC 661, a three-Judge Bench has ruled thus: 37. In State of T.N. v. Arooran Sugars Ltd. (1997) 1 SCC 326 the Constitution Bench, while deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law as it stands. 75. In this context, fruitful advertence may be made to a passage from Chandra Mohan v. State of Uttar Pradesh and Ors. AIR 1966 SC 1987 wherein Subba Rao, CJ speking for the Bench has opined: ... the fundamental Rule of interpretation is the same whether one construes the provisions of the Constitution or an Act of Parliament, namely, that the court will have to find out the expressed intention from the words of the Constitution or the Act, as the case may be. 76. When we apply the aforesaid principles of statutory interpretation to understand the legislative intendment of Section 6(2) it is clear as crystal that the Parliament did not intend to create any kind of embargo on the jurisdiction of this 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, as stated earlier, bars the jurisdiction of the courts and needless to say, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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