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TMI Blog2016 (12) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... as adjourned to 30th of September, 2016 and on that day, Mr. Mukul Rohatgi, learned Attorney General for India apprised this Court that the meeting had been held under the Chairmanship of Union Minister of Water Resources, River Development and Ganga Rejuvenation and the Minutes of the said meeting were produced before the Court. The Minutes indicated that despite best efforts to make both the States to arrive at a consensus on release of Cauvery water, they took such divergent stands as a consequence of which nothing could be resolved. After noting various aspects, the Court enquired from the learned Attorney General with regard to constitution of the Cauvery Management Board to which he responded that the Board would be constituted on or before 4th of October, 2016. Keeping in view the submissions, the Court directed the States, namely, Tamil Nadu, Karnataka and Kerala and Union Territory of Puducherry to nominate their respective representatives as per the final order passed by the tribunal. The earlier order to release 6000 cusecs of water was reiterated. The matter was adjourned to 6th of October, 2016. 2. Before the matter could be listed on the date fixed, the learned Attor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th October, to 16th October, 2016. Mr. Naik and Mr. Mohan submitted that from 5.09.2016 to 30.09.2016, State of Karnataka has released 17.5 TMC of water. The said aspect has been disputed by Mr. Naphade after obtaining instructions. According to him, the State of Karnataka has released 16.9 TMC of water. Learned senior Counsel for the State of Tamil Nadu would submit that the State of Karnataka is in deficit of 4.6 TMC of water for the month of September and State of Karnataka under the final order of the Tribunal is required to give 22 TMC of water for the month of October. If the note of the State of Karnataka is taken into consideration, 3.1 TMC of water will be released between 1.10.2016 to 6.10.2016. The learned Advocate General submitted that he has filed the note after obtaining instructions. Mr. Nariman would contend that this Court should confine the release to the instructions obtained by the learned Advocate General as a real plight faced by the inhabitants of State of Karnataka. Before we enter into the said arena, we think it appropriate to dwell upon the facet relating to have a report pertaining to the ground reality in both the States relating to the Cauvery basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be included in the team. The said team shall go to the area in question and submit a report relating to the ground reality before this Court on 17.10.2016. Needless to say, the report shall be served on the learned Counsel for the parties prior to that. Let the I. As. and appeals be listed on 18.10.2016. Needless to say, the I. As., objections thereto and the report shall be considered on 18.10.2016. Registry is also directed to list the appeals on that day. As far as the interim arrangement is concerned till 18.10.2016, we direct that the State of Karnataka shall release 2000 cusecs of water from 7.10.2016 till 18.10.2016. 3. On 18th of October, 2016, the learned Attorney General being assisted by learned Additional Solicitor General filed the report of the Committee which pertained to social aspects and technical aspects. It is worthy to note that the Committee had not suggested anything with regard to quantity of water that could 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. Roha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself and if the scheme of the said Act is scrutinized and appreciated in proper perspective, it is clear as crystal that this Court has no jurisdiction to exercise the appellate power by granting leave. The said submission is sought to be pyramided by placing reliance on Section 6(2) of the 1956 Act which provides that decision of the tribunal after its publication in the Official Gazette by the Central Government shall have the force of an order or decree of the Supreme Court. Elucidating the said aspect, it is contended by him that once the statutory provision postulates that the award has the same force as that of the decree of this Court, there cannot be an appeal assailing the same, for the simon pure reason that the concept of intra-court appeal is alien to the adjudicatory process of this Court and remotely not conceived of under the constitutional scheme or by any precedent. For the said purpose, he 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 Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ande v. Maruti Balaram Haibatti (1995) Supp (2) SCC 539, Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy (2005) 1 SCC 481, U. Sree v. U. Srinivas (2013) 2 SCC 114 and Mathai v. George and Anr. (2010) 4 SCC 358 and the exercise of the said power by the Court has not been curtailed by the original constitutional provision, that is, Article 262 and could not have been crippled by any statutory provision and, in fact, has not been taken away by the 1956 Act, for it has its source in Article 262 which does not so envisage. 7. In reply to the submission pertaining to Section 6(2) of the 1956 Act that the final order by the tribunal once published in the Gazette has the force of an order or decree of this Court, it is argued by him that the said provision, by no means, deprives this Court to interfere with such decision by way of appeal by special leave because it is a decision rendered 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. El ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able decision making process, for it is the duty of the tribunal to render a decision which should be made by application of established principles of law, namely, adherence to principles of natural justice, good conscience, absence of arbitrariness, just and appropriate appreciation of evidence on record, showing respect for precedents, demonstrable ratiocination that would show application of mind and in such an adjudicatory process, it is inconceivable that the founding fathers of the Constitution had contemplated creation of a tribunal with unguided, uncontrolled or uncanalised judicial powers. He has anchored on the authority P. Sambamurthy and Ors. v. State of Andhra Pradesh and Anr. (1987) 1 SCC 362 to bolster the proposition that it is a basic principle of Rule of law that exercise of power by any authority must not only be conditioned by the Constitution 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the arguments advanced in oppugnation by the learned senior Counsel for the States involved. 12. Article 131 defines the original jurisdiction of the Supreme Court which reads as follows: 131. Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction 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 del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court. 134. Appellate jurisdiction of Supreme Court in regard to criminal matters (1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court - (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that the said jurisdiction shall not extend to - (i) a dispute to which a State for the time being specified in Part III of the First Schedule is a party, if the dispute arises out of any provision of a treaty, agreement, engagement, sanad or other similar instrument which was entered into or executed before the date of commencement of this Constitution and has; 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, Article 136 has been given the shape as it is found in the Constitution today. Article 32 of the Constitution, which occurs in Part III, deals with fundamental rights. It provides for remedies for enforcement 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that find mention in Article 262(1). The 1956 Act bars the exercise of jurisdiction Under Article 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 som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 observed: 67. ...Parliament can reserve to itself, the power to oust the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Article 262 comes under Chapter II and it comes under the heading "Dispute relating to waters". The said Article reads as follows: 262. Adjudication of disputes relating to waters of inter-State rivers or river valle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature 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 have been or are likely to be affected prejudicially by - (a) any executive action or legislation taken or passed, or proposed to be taken or passed; or (b) the failure of any authority to exercise any of their powers; With respect to the use, distribution or control of water from that source, the Government of the State may complain to the President. 240. (1) If the President receives such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 so recommend, vary any order made under this article. 241. If it appears to the President that the interests of any State for the time being specified in Part II of the First Schedule, or of any of the inhabitants of such a State, in the water from any natural source of supply in any State for the time being specified in Part I or III of the First Schedule have been or are likely to be affected prejudicially by - (a) any executive action or legislation taken or passed, or proposed to be taken or passed; or (b) the failure of any authority to exercise any of their powers; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el 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 Cauvery Water Dispute Tribunal and by notification of even date referred to it the water dispute emerging from Tamil Nadu's Letter of Request dated July 6, 1986. The State of Tamil Nadu sought interim relief from the tribunal and the interim relief claimed was that the State of Karnataka be directed not to impound or utilize water of Cauvery river beyond the extent impounded or utilised by them as on May 31, 1972. An application was filed by the Union Territory of Pondicherry (as it was then) seeking a direction from the tribunal to direct both the Karnataka and Tamil Nadu to release the water already agreed to during the months of September to March. The tribunal considered simultaneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 meaning of a statutory enactment and to lay down the frontiers of jurisdiction of any body or Tribunal constituted under the statute. And again: 14. In the dispute relating to river Cauvery itself an application Under Article 32 of the Constitution was filed by the Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam which was said to be a society registered under the Tamil Nadu Societies Registration Act asking this Court for direction to the Union of India to refer the dispute Under Section 4 of the Act and this Court in Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India (supra) allowed the petition and dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4, 5 and 9 on the ground that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circumstances we think it is not necessary for us to decide in this case, the larger question whether a Tribunal constituted under the Interstate Water Disputes Act has any power or not to grant any interim relief. In the present case the Appellants become entitled to succeed on the basis of the finding recorded by us in their favour that the reliefs prayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990 are covered in the reference made by the Central Government. 36. We have referred to the aforesaid decision in extenso as this Court had allowed the appeals by holding that it had the authority to decide the limits, powers and the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 law, 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 this Act. 57. This provision of the Act read with Article 262 thus excludes original cognizance or jurisdiction of the inter-State water dispute which may be referred to the Tribunal established under the Act, from the purview of any court including the Supreme Court Under Article 131. Proceeding further, it stated: 77. The effect of the provisions of Section 11 of the present Act, viz., the Inter-State Water Disputes Act read with Article 262 of the Constitution is that the entire judicial power of the State and, therefore, of the courts including that of the Supreme Court to adjudicate upon original dispute or complaint with respect to the use, distribution or control of the water of, or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 court shall have jurisdiction in respect of any water dispute which could be referred to a tribunal under the Act. This being the position, what is necessary to be found out is whether the assertions made in the plaint filed by the State of Karnataka and the relief sought for, by any stretch of imagination can be held to be a water dispute, which could be referred to the Tribunal, so as to oust the jurisdiction of the Supreme Court Under Article 131. 41. Majmudar, J. concurring with the view of Pattanaik, J. has opined that: It is not in dispute between the parties that the Inter-State Water Disputes Act, 1956 (hereinafter referred to as "the Disputes Act") is a legislation passed Under Article 262 of the Constitution. It is equally not in dispute that Section 11 thereof excludes the jurisdiction of this Court in respect of water disputes referred to the Tribunal. It will, therefore, have to be seen whether the State of Andhra Pradesh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal 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 averments in the plaint. It has also been opined that there is no conflict between Article 131 and Article 262 of the Constitution. As regards entertaining a water dispute, it is to be scrutinized whether the controversy that is the subject matter of the suit invites the bar of jurisdiction of this Court, for it depends upon the nature of dispute. Thus, the view has been expressed in the context of Article 131 of the Constitution. 44. In State of Haryana (supra) the Court was dealing with a suit filed Under Article 131 of the Constitution for seeking certain reliefs impleading State of Punjab as Defendant No. 1 and Union of India as Defendant No. 2. The issue of maintainability of the suit arose for consideration. Dealing with the said issue, the two-Judge Bench referred to Article 262 of the Constitution and Section 11 and Section 2(c) of the 1956 Act that defines water dispute and in that context ruled thus: 7. There cannot be any dispute with the proposition that in the event the present dispute between the two States woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District, Karnataka by quashing and cancelling the power project. A prayer was also made to direct the State of Karnataka to regulate water at RDS anicut and to ensure smooth flow of water in RDS canal to the extent of full allocated water of 15.9 TMC to the State of Andhra Pradesh. Addressing the issue with regard to maintainability, the Court opined that: 33. In the light of the scheme as envisaged by the makers of the Constitution as also by Parliament under Act 33 of 1956 in connection with water disputes between States, it is clear to us that such disputes cannot be made subject-matter of petition either in a High Court Under Article 226 or in this Court Under Article 32 of the Constitution. Probably, Article 262 is the only provision which enables Parliament to oust and exclude jurisdiction of all courts including the Supreme Court (this Court). 34. It is also pertinent to note that Clause (2) of Article 262 contains a non obstante Clause (Notwithstanding anything in this Constitution). It is no doubt true that Article 262 of the Constitution is not self-executory inasmuch as it does not, by itself, take away the jurisdiction of this Court in respect of disputes relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to deal with and decide such sensitive issues once and for all by a law made by Parliament. 48. Thereafter, the Court referred to Clause (c) of Section 2 of the 1956 Act that defines "water dispute" and Section 3 which provides for complaints by the State Governments as to water dispute. Commenting on the same, the Court expressed: 41. Bare reading of the above provisions leaves no room for doubt that they are very wide. Section 3 deals with situations not only where a water dispute has actually arisen between one State and another State, but also where such dispute is "likely to arise". Moreover, it applies not only to those cases in which interest of the State has been prejudicially affected, but also embraces within its sweep interest of any of the inhabitants thereof which has been affected or is likely to be affected. To us, therefore, it is abundantly clear that such a dispute is covered by Article 262 of the Constitution and should be dealt with in accordance with the provisions of Act 33 of 1956 and it cannot be challenged in any court including this Court. xxxxx 46. Ultimately, what is contemplated by the Act is to look into, to protect and to safeguard interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction. 50. The crux of the matter is whether the interpretation placed by this Court on the aforesaid decisions lays down the ratio that Article 262 read with Section 11 of the 1956 Act ousts the jurisdiction of Article 136 of the Constitution. On an anxious perusal and studied scrutiny of the aforesaid authorities, we find that what has been ousted is the jurisdiction of this Court to take cognizance of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter State river or river valley. The Constitution Bench in In Re: Cauvery Water Dispute Tribunal (supra) has opined that this Court cannot take cognizance of the original complaint or dispute relating to what has been mentioned in Article 262. Article 262(2) empowers the Parliament, by law, to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (1). Thus, the legislation is relatable to the disputes which have been referred to in Article 262(1). In this regard, we may refer to Section 2(c) of the 1956 Act that defines "water dispute". It reads as follows: 2.(c) 'water d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar on the jurisdiction of this Court has to be in accord with the language employed in Article 262(1). Section 11 bars the jurisdiction of this Court pertaining to original dispute or complaint. The submission of Mr. Rohatgi is that dispute or complaint as mentioned in Article 262 and Section 11 of the 1956 Act not only covers the dispute before the tribunal but also encompasses any appeal by special leave because it still has the characteristics of a dispute. On a first blush, the aforesaid submission may look attractive but on a keener scrutiny, we are disposed to think, it does not deserve acceptance. The language used in Article 262(1) and Section 11 relate to a water dispute or complaint. It pertains to a dispute or a complaint at the pre-adjudicatory stage. A complaint by the State Government is in a different realm altogether. It is meant to invite the attention of the Central Government pertaining to the fact that a water dispute had arisen or is likely to arise and it needs to be addressed by constituting a tribunal. Once a water dispute is adjudicated, it is extremely difficult to put it in the compartment of "any water dispute". After the adjudication, one of the States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning, I think that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. 55. Having stated about the aspect pertaining to the approach of the Court with regard to interpret the ouster provisions, we may profitably refer, being commended, to certain authorities as to how the Court has perceived its jurisdiction Under Article 136 of the Constitution. 56. In Durga Shankar Mehta (supra), it has been held thus: It is now well settled by the majority decision of this Court in the case of Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. 1950 SCR 459 that the expression "Tribunal" as used in Article 136 does not mean the same thing as "Court" but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. The only Courts or Tribunals, which are expressly exempted from the purview of Article 136, are those which are established by or under any law relating to the Armed Forces as laid down in Clause (2) of the article. It is well known that an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer Under Article 136 of the Constitution. That apart, the said authority supports the view that framers of the Constitution have not chosen to circumscribe the powers exercisable under this Article. We are conscious of the fact that the context was different, but it is obligatory on the part of this Court to see whether any bar is created under the original Constitution and if so, to what extent. 57. In this regard, Mr. Nariman has also referred to Associated Cement Co. Ltd. (supra), especially, the concurring opinion of Bachawat, J., who has articulated thus: The great purpose of Article 136 is the recognition of the basic principle that one Court having supreme judicial power in the Republic will have appellate power over all Courts and adjudicating authorities vested with the judicial powers of the State throughout the territory of India barring those constituted by or under any law relating to the Armed Forces. In this background, the basic test of a tribunal within the meaning of Article 136 is that it is an adjudicating authority (other than a Court) vested with the judicial powers of the State. 58. In Jose Da Costa (supra), it has been opined that Article 136 vests i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence. 61. In Prashant Ramachandra Deshpande (supra), Sahai, J. speaking for the Court has observed that remedy Under Article 136 is a constitutional right and it cannot be taken away by legislation much less by invoking the principle of election or estoppels, because the jurisdiction exercised by this Court Under Article 136 is an extraordinary jurisdiction which empowers this Court to grant leave to appeal from any judgment, decree or determination in any cause or matter passed or made by any court or tribunal and the scope of this Article has been settled in numerous decisions. It is not hedged with any restriction or any exception as is normally found in the provisions conferring jurisdiction. 62. Learned senior Counsel has also commended us to Mahendra Saree Emporium (II) (supra) and U. Sree (supra) and to a recent Constitution Bench decision in Mathai v. George (2016) 7 SCC 700, wherein the Court has opined that no effort should be made to restrict the powers of this Court Under Article 136 because while exercising its power Under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The term 'dispute' may be given a broad meaning or a narrow meaning and the 1956 Act gives it a broad meaning, as has been held by this Court. 65. In this context, the term 'adjudication' becomes extremely significant. In Black' Law Dictionary (6th Edn.) at p. 42 "adjudication" is defined as: Adjudication.-- The legal process of resolving a dispute. The formal giving or pronouncing a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. 66. The purpose of referring to the aforesaid definition is to arrive at the conclusion that once a water dispute, as defined Under Article 262(1) read with provisions of the 1956 Act is adjudicated by the tribunal, it loses the nature of dispute. A person aggrieved can always have his remedy invoking the jurisdiction Under Article 136 of the Constitution of India. We have no a scintilla of doubt in our mind that the founding fathers did not want the award or the final order passed by the tribunal to remain immune from challenge. That is neither the expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides for the establishment of the authority, its term of office and other condition of service, etc. but the mere creation of such an agency will not be able to ensure implementation of a Tribunal's award. Any agency set up Under Section 6A cannot really function without the cooperation of the States concerned. Further, to make a Tribunal's award binding and effectively enforceable, it should have the same force and sanction behind it as an order or decree of the Supreme Court. We recommend that the Act should be suitably amended for this purpose. 17.6.05 - The Inter-State Water Disputes Act, 1956 should be amended so that a Tribunal's Award has the same force and sanction behind it as an order or decree of the Supreme Court to make a Tribunal's award really binding. 69. The Report of the Commission as the language would suggest, was to make the final decision of the tribunal binding on both the States and once it is treated as a decree of this Court, then it has the binding effect. It was suggested to make the award effectively enforceable. The language employed in Section 6(2) suggests that the decision of the tribunal shall have the same force as the order or decree of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid pronouncements, the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart, the use of the term "deemed" has to be read in its context and further, the fullest logical purpose and import are to be understood. It is because in modern legislation, the term "deemed" has been used for manifold purposes. The object of the legislature has to be kept in mind. 72. In Hari Ram (supra), the Court has held that in interpreting the provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created and after ascertaining the same, the court is to assume all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction. 73. In this regard, reference to the authority in Nandkishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan and Dombivali and Ors. (2014) 11 SCC 417 would be apposite. It has been held that a legal fiction has to be applied having regard to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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