TMI Blog2000 (4) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... anning for erection of big projects for proper utilization of the waters of Krishna basin and in July, 1951, a memorandum of agreement had been drawn up for apportionment of the available supply of Krishna river system among the four riparian States namely, States of Bombay, Hyderabad, Madras and Mysore. It appears that the said memorandum of agreement had been drawn up to remain valid for a period of 25 years and even at that point of time, the State of Mysore refused to ratify the agreement. After implementation of the recommendations of the States Reorganisation Act, in the year 1956, the Krishna basin came to be controlled by the States of Bombay, Mysore and Andhra Pradesh, which became the riparian States. Each of these States became active for exercising their right share over the water of Krishna valley and the Central Water and Power Commission had drawn up a scheme for re-allocation of the Krishna water. That however was not acceptable to the States and no agreement between the States could be reached. Whenever any of the riparian State would come up with major projects, the other States would object to the same. By undertaking the construction of large projects by differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further consideration under Section 5(3) of the Act and the tribunal on consideration of those references submitted its further report giving such explanations of guidance, as the tribunal deemed fit on the matters referred to it under Section 5(3) on 27th of May, 1976. It may be stated that the original report dated 24th of December, 1973 contained the Final Order of the tribunal and the further report dated 27th of May, 1976 also contained the modified Final Order, which modification was necessary because of explanations given to references made by different States under Section 5(3) of the Act. The Central Government construed the aforesaid Final Order to be the decision of the tribunal and accordingly, published the same in the Extraordinary Gazette dated 31st of May, 1976 and on such publication, the said Final Order has statutorily become final and binding oh the parties to the dispute. 2. In the Report of the tribunal as well as in the further Report, submitted by the tribunal, two Schemes have been evolved - Scheme A and Scheme B . On the basis of agreement between all the States, the availability of water in Krishna basin was found out at 2060 T.M.C. on 75 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or for the Parliament to make a legislation to that effect under Entry 56 of List I of the Seventh Schedule to the Constitution. The State of Karnataka however being of the opinion that Scheme B having formed a part of the decision of the tribunal was also required to be notified by the Central Government under Section 6 of the Act, making it binding on the parties, and the same not having been done, filed the present suit on 1st of March, 1997, impleading the State of Andhra Pradesh, the State of Maharashtra and the Union of India as party defendants, invoking the jurisdiction of this Court under Article 131 of the Constitution, seeking relief for a decree that the surplus water in river Krishna i.e., in excess of 2060 TMC at 75% dependability be shared in accordance with the determinations and directions of the tribunal, contained in its report and further report and; a declaration that defendant No. 1 State of Andhra Pradesh is not entitled to insist on its right to use the surplus water i.e., in excess of 2060 TMC at 75% dependability, so long as Scheme B framed by the tribunal is not fully implemented and a mandatory injunction to the defendant No. 3 Union of India to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal did entertain the same and did answer the clarifications sought for by giving explanations and or modifications, to the original scheme and, therefore, the tribunal itself accepted the position that Scheme B contained in the original report is also a decision of the tribunal which could be clarified or explained on an application being filed under Section 5(3) of the Act. The plaint then, narrates as to how in the further report dated 27th of May, 1976, the tribunal investigated into and determined the shares of respective States in the surplus flows in excess of 2060 T.M.C. and how ultimately a comprehensive Scheme B was drawn up for fuller and better utilisation of all the waters in every water year and yet the same could not be given effect to as the tribunal thought it improper to constitute an authority in the absence of agreement between all the riparian States. It is in this context the tribunal had observed that it is unwise and impracticable to impose an administrative authority by a judicial decree without the unanimous consent and approval of the parties. According to the plaintiff, since Scheme B provided for a fuller and better utilisation of the water of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order, which has been notified in the official Gazette, the State of Andhra Pradesh is entitled to use any water, which may be flowing in the river Krishna, so that the same would not be wasted by entering the sea and, therefore, the prayer for injuncting the State of Andhra Pradesh in going ahead with several projects is not entertainable. The defendant No. 1 further asserts that Scheme A having been acted upon by the parties for over two decades and under the said Scheme review having been provided for after 31st of May, 2000, the question of implementation of Scheme B at this length of time is not only inequitable but also wholly uncalled for. While refuting the assertion made in different paragraphs of the plaint, it has been reiterated that Scheme B never formed part of the decision and as such question of its implementation does not arise and further Section 6(A) of the Act not being there on the statute book on the date the report of the tribunal was published, the same is not relevant in the context. According to Defendant No. 1, the plaintiff has attempted to raise an imaginary dispute in an attempt to invoke the jurisdiction of this Hon'ble Court so that the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture. The said defendant also averred that the relief sought for is essentially a review of the Final Order and there were no circumstances justifying the prayer for implementation of Scheme B , particularly, when a review is provided after 31st of May, 2000, which is quite near. The State of Maharashtra defendant No. 2 reiterates the stand of the Andhra Pradesh, defendant No. 1 to the effect that it is the tribunal's decision in term of Scheme A , which is final and binding order on all States and not the framing of Scheme B contained in the report of the said tribunal. 6. Union of India, defendant No. 3, in its written statement took the stand that the suit as framed is not maintainable by virtue of Section 11 of the Act read with Article 262 of the Constitution. So far as the user of water by the State of Andhra Pradesh is concerned, the Union Government contends that the award having set out in gross the quantity of water which could be used in a given water year by Maharashtra and Karnataka and Andhra Pradesh with the liberty to Andhra Pradesh to use the surplus water, the said liberty does not confer or create any right in the State of Andhra Pradesh and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings? (A.P.) 10. Whether the liberty to use surplus water under the decision of the KWDT precludes utilisation of surplus water by A.P., by means of projects of permanent nature? (KAR as modified by A.P.) 11. Whether the decision of the KWDT entitles the State of Andhra Pradesh to execute the following projects: (KAR - as modified by (A.P.) (a) Telugu Ganga Project (b) Srisailam Right Bank Canal (c) Srisailam Left Bank Canal (d) Bhima Lift Irrigation (e) Pulichintala Diversion 12. Is not the suit of the Plaintiff unnecessary and premature ads there can be review of the orders of the Tribunal after A.D. 2000? (MAH) 13. To what reliefs, if any, the Plaintiff is entitled to? (A.P.) ISSUES 4, 5 AND 7. 8. These three issues are taken up together as they are inter-linked and in fact the fete of the suit largely depends upon the answer to the aforesaid issues. Mr. Nariman, the learned senior counsel, appearing for the plaintiff -State of Karnataka contends that in the context of the water dispute which had been referred to by the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the tribunal. In fact the tribunal itself came to the conclusion that Scheme B is more comprehensive and provides for more equitable mode of utilisation of the waters of river Krishna and yet refrained from making it a part of the Final Order because a Monitoring Authority could not be constituted due to lack of agreement between the riparian States nor was it wise and practical to impose a Monitoring Authority without the consent of the parties and in this view of the matter Scheme B must be held to be a decision of the tribunal adjudicating the shares of each of the States in the water of river Krishna, making the appointment, both in relation to surplus as well as the deficit. Mr. Nariman, the learned senior counsel, also urged that the three States Maharashtra, the then Mysore (presently Karnataka) and Andhra Pradesh having themselves consented to, and having prayed for the method of allocation to be adopted by the tribunal to the effect: (i) mass allocation of utilisable dependable flow at 75%, (ii) allocation on percentage basis of water in surplus as well as deficit years of flow, (iii) restrictions with regard to use and the nature of restrictions to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or is amalgam of both these Schemes favourable to the plaintiff - State and not necessarily the implementation of Scheme B and this has purposely been done as the plaintiff was well aware of the fact that the said Scheme B does not form a part of the decision. In this connection, the learned Counsel relied upon the assertions made in paragraph 2(b) of the plaint, which really deals with Scheme A and not Scheme B . He also relied upon the assertions made in paragraph 6(1) wherein the plaintiff itself has averred that the tribunal made Scheme A as part of its final decision and left the Scheme B to the good sense of the parties or to the wisdom of Parliament. Mr. Parasaran also with reference to assertion made in paragraph 21 of the plaint contends that according to the plaintiff the tribunal merely expressed hope for getting the consent of all the States for adoption of Scheme B and, therefore it was not a decision of the tribunal. Mr. Parasaran also strongly relied upon the assertions made in paragraph 23 to the effect as submitted earlier, the Tribunal, while adjudicating the claims, has declared the rights of basin states in the surplus waters under Scheme B altho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the tribunal. 10. Mr. Andhyarujina, the learned senior counsel, appearing for the State of Maharashtra, Defendant No. 2 supported the stand of the State of Andhra Pradesh and contended that Scheme B cannot be held to be a decision of the tribunal. According to the learned Counsel, what can be held to be a decision of the tribunal is what the tribunal himself considered to have binding effect and in this view of the matter, the tribunal having itself said that it is Scheme A which formed the part of the Final Order and which can be implemented, immediately on being notified, it is abundantly clear that the tribunal did not think Scheme B to be its 'decision' though in course of proceedings, it might have discussed about the feasibility of such a scheme and its efficacy. Mr. Andhyarujina, the learned senior counsel, ultimately urged that it is only the Final Order of the tribunal, containing Scheme A , which can be held to be the decision of the tribunal. 11. Mr. Salve, the learned Solicitor General, appearing for the Union Government, reiterated the stand taken by the two other defendant States and submitted that the tribunal itself has nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5(2) of the Act must contain the facts as found by it as well as the decision of the matters referred to the tribunal. A distinction, therefore, has been drawn by the legislature on the two expressions used in Section 5(2) of the Act, namely 'facts as found' and 'decision of the matters referred to'. The crucial question which has to be answered in the aforesaid three issues, which have been taken together is whether Scheme B considered and evolved by the tribunal would come within the expression 'facts as found' or the 'decision of tribunal on the matter referred to'. It is in this context, what was the 'matter referred to the tribunal' assumes great significance. The Government of India in its letter dated 10th of April, 1969 made a reference to the tribunal for adjudication of the water dispute regarding the inter-State river Krishna and the river valley thereof emerging from the letters of the Mysore Government dated the 29th January, 1962 and the 8th July, 1968, the letters of the Maharashtra Governments dated the 11th June, 1963 and the 26th August, 1968 and the letters of the Andhra Pradesh Government dated the 21st April, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of expert witness, adduced by the parties, indicating the advantage that will accrue by carry over storage, made in the Krishna basin. The tribunal also thought over the matter as to whether the scheme for division of water should endure forever or there should be a room for review and ultimately was of the opinion that a review and modification of the allocation may become necessary to keep pace with the changing conditions. It also provided for a review of the order of the tribunal at any time after 31st of May, 2000. After making such general observations, it proceeded to consider the scheme of division of water and it did notice the agreed views of all the three states, submitted on 4th of May, 1973, indicating that there should be a mass allocation of utilisable dependable flow at 7-5% and there should be allocation on percentage basis of water in surplus as well as deficit years with certain restrictions with regard to the use to be decided by the tribunal and, there should be a joint control Body to give effect to the decision of the tribunal. The tribunal indicated the merits and demerits of the schemes given by each of the states consisted of two parts and part II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s given a complete picture to facilitate further discussion by setting out different clauses of the Final Order which according to the tribunal embodies all the provisions on the subject of apportionment of the water of river Krishna between the states of Maharashtra, Mysore and Andhra Pradesh and then it is stated these provisions of the Final Order cover all matters mentioned in Issue No. Wand its sub-issues and issue No. II, is, therefore, decided as provided in these clauses of the Final Order. After deciding issue No. II, as aforesaid, and thereafter deciding issue (IV)(B) in the next paragraph, the tribunal then proceeds to examine the efficacy of Scheme B . It is no doubt true that Scheme B is more beneficial and provides for more beneficial and fuller utilisation of waters of river Krishna but the tribunal itself has not considered the same to be a part of its decision, which could be implemented by a notification under Section 6 of the Act. It may be noticed at this stage that in Cauvery Water Dispute Case 1993 (Suppl.) 1 SCC 96 while considering the question as to what formed the decision of the Tribunal under Section 5(2) of the Act this Court examined the interim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of water under Scheme A is not the Scheme for the division of water in accordance with the provisions of the Act. In said PK-2 at page 24 the Tribunal did observe: The apportionment of water of the inter-State rive Krishna must be adapted to the peculiar characteristics of the river system. We may also point out that until 1971-72 less than 1000 T.M.C. was utilised in the entire Krishna basin, and until the entire dependable supply of 2060 TMC is fully utilised, the complaint regarding the apportionment of the remaining water is unrealistic. 14. In answering Clarification No. III filed by the State of Karnataka, requiring the Tribunal to give direction for implementation of Scheme B the Tribunal, no doubt, drew up a complete Scheme B and came to the conclusion that Scheme B provides for a fuller and better utilisation of the Waters of river Krishna, but hasten to add We cannot make Scheme B part of our final order as requested by the learned Counsel for the Government of India because the final order should contain only such provisions as may be implemented independently of any agreement or law made by Parliament. (see Ex. PK 2 at page 26). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Scheme, namely, the Constitution of Monitoring Authority is not agreed to the said Scheme cannot be held to be a decision within the meaning of Section 5(2) of the Act. In the aforesaid premises, we answer aforesaid three issues by holding that the Scheme 'B' framed by the Tribunal is not the decision of the Tribunal and as such, was not required to be notified under Section 6 and, consequently cannot be enforced at the behest of the plaintiff. The issues are accordingly answered against the plaintiff. 18. Though we have come to the aforesaid conclusion yet we think it appropriate to notice that the disputes for sharing waters of an inter-State river are not easy to be solved. A Tribunal presided over by a judge of this Court took several years in formulating its conclusion. For arriving at its conclusion the Tribunal has attempted several negotiations between the rival States and also has taken into account the experts' evidence adduced by the parties. In evolving the two Schemes - Scheme 'A' and Scheme 'B' it has also taken into account several schemes produced by each of the State. The Tribunal also thought while evolving Scheme 'B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Government of India have examined both Schemes 'B' and A'. They feel that Scheme 'B' is better and earlier to implement than scheme 'A'. If Scheme 'B' comes as part of the final order of this Hon'ble Tribunal, the Government of India will take necessary steps for putting it into operation. Scheme B' may be put as part of the final order in the manner as the Hon'ble Tribunal feels fit. We should like to have a complete scheme formulated by this Hon'ble Tribunal. This really indicates how the Union Government was anxious to have an order of the Tribunal to make Scheme 'B', a part of its decision though ultimately for the reasons already indicated the Tribunal did not accede to the same. Issue No. 1. 20. The next important issue is Issue No. 1 which raises the question as to the maintainability of the suit in view of the bar provided under Article 262(2) of the Constitution read with Section 11 of Inter-State Water Disputes Act. Learned Solicitor General Mr. Salve, appearing for the Union of India in fact piloted this issue which was, of course, supported by Mr. Parasaran ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt will not be entitled to entertain a suit under Article 131 of the Constitution. 21. Mr. Parasar'an appearing for the State of Andhra Pradesh supported the argument advanced by Mr. Salve, the learned Solicitor General and contended, that the suit being one not merely for implementation of Scheme 'B', as contended by the plaintiff, but an amalgam of both the Schemes, sharing of 2060 TMC under Scheme 'A' and sharing of surplus above 2060 TMC as per Scheme 'B' it is obviously an innovation which the Tribunal has itself not thought of and more appropriately a fresh water dispute within the meaning of Section 2(c) of the Act and consequently a suit under Article 131 would not lie. Mr. Nariman appearing for the plaintiff-State on the other hand contended, that a suit filed under Article 131 is not exactly a suit filed in ordinary Civil Court. The pleadings of the parties cannot be construed in a pedantic manner and reading the plaint as a whole the conclusion is irresistible that the plaintiff has made out a case to the effect that Scheme ' B' evolved by the Tribunal is also the decision of the Tribunal, though it could not be implement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, a dispute between the plaintiff and the defendant No. 3 - the Union of India and further it is a dispute between the State of Karnataka and the State of Andhra Pradesh under Clause (c) of Article 131 as the said State of Andhra Pradesh did not agree to the Constitution of a Monitoring Authority for implementation of an adjudicated decision of the Tribunal by evolving Scheme 'B'. In the very same decision Bhagwati, J., also further indicated that the Supreme Court would have the power to give whatever reliefs are necessary for enforcement of legal right claimed in the suit if such legal right is established. In State of Karnataka v. Union of India and Anr. [1978]2SCR1 this Court again considered the scope of Article 131 of the Constitution. Chandhrachud, J., as he then was, held thus: The jurisdiction conferred on the Supreme Court by Article 131 of the Constitution should not be tested on the anvil of banal rules which are applied under the CPC for determining whether a suit is maintainable. Article 131 undoubtedly confers 'original jurisdiction' on the Supreme Court and the commonest form of a legal proceeding which is tried by a court in the exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Constitution has purposefully conferred on this Court a jurisdiction which is untrammelled by considerations which fetter the jurisdiction of a court of first instance, which entertains and tries suits of a civil nature. The very nature of the disputes arising under Article 131 is different, both In form and substance, from the nature of claims which require adjudication in ordinary suits. 22. The learned judge had also further observed: A proceeding under Article 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is between two or more governments - either the one or the other possesses the Constitution power to act. Bhagwati, J. agreeing with Chandrachud, J. had also observed thus: The only requirement necessary for attracting the applicability of Article 131 is that the dispute must be one involving any question on which the existence or extent of a legal right depends, irrespective whether the legal right is claimed by one party or the other and it is not necessary that some legal right of the plaintiff should be infringed before a suit can be brought under that article. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect 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. On examining the averments made in the plaint and the relief sought for, by the plaintiff- State, we are of the considered opinion that what really the State of Karnataka wants is a direction form the Supreme Court to the Union Government to notify the Supreme B evolved by the tribunal and for a direction to the Union Government to constitute an authority under Section 6-A of the Act, which was inserted into the Act by amendment, though the said provision was not there on the date, the tribunal submitted its report and the decision. The plaintiff asserts in the plaint, that the dispute between all the three riparian States in relation to sharing of the water of river Krishna was finally adjudicated upon by the tribunal by evolving the two schemes and unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , hold this issue of maintainability in favour of the plaintiff and against the defendants. ISSUE NO. 6 25. The aforesaid issue has been struck on the assertions made in the written statement of the State of Maharashtra. It has been averred in the written statement of the State of Maharashtra that Scheme A having been implemented from the date of its notification in the Official Gazette under Section 6 and being in operation for 21 years and parties having worked out their equities on the basis of said scheme on the mass allocation of water in river Krishna, the question of implementing Scheme B at this stage does not arise even assuming that Scheme B is held to be a decision of the tribunal. According to the State of Maharashtra to make Scheme B effective, it is necessary that all the States should have their reservoirs in the basin at the places to be indicated by the so-called Monitoring Authority, supposed to have control under the very scheme. The same not having been possible, any direction after a lapse of 21 years to implement Scheme B would be grossly prejudicial to the State of Maharashtra. The further stand taken in the written stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties but the fact remains that having planned their respective projects on the basis of mass allocation made by the tribunal, the State of Karnataka did think in the year 1993 in response to the letter from the Union Government for Constitution of the Krishna Valley Authority that the State does not think it proper to have the Authority at that point of time. Thus all the three states have made their respective planning for utilisation of the allocated water in their respective share by the tribunal under Scheme A which as until today continues to be effective but for the apprehension and dispute between the State of Andhra Pradesh and Karnataka, when Karnataka started construction of dam at Almatti and Andhra Pradesh went on with large projects like Telugu Ganga, Nagarjunasagar and other. In the matter of sharing of waters of inter-State river when the tribunal constituted under the Inter-State Water Disputes Act, evolved a scheme of mass allocation as under Scheme A and that scheme has remained operative for all these years and could be reviewed at any time after 31st of May, 2000 even as per the decision of the tribunal itself, the contention of the State of Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... water year nor be deemed to have been allocated in any water year, water of the river Krishna in excess of the quantity specified hereunder: (i) as from the water year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83. 800 T.M.C. (ii) as from the water year 1983-84 up to the water year 1989-90.800 T.M.C. plus 25 a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its own projects using 3 T.M.C. or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects. (iii) as from the water year 1990-91 up to the water year 1997-98 800 T.M.C. plus a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1982-83, 1983-84 and 1984-85 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water 1968-69 from such projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bengal and, therefore, it was thought fit that the lowest riparian State could utilise the same, but can never claim a right by using the excess water. In the context of the expenses involved for such major projects and the national loss, which the country cannot afford to sustain in a Federal Structure like our country, it is the duty of the Central Government to bear this in mind while sanctioning any such major project of the lowest riparian State like Andhra Pradesh. A bare reading of the report of the tribunal and its decision in the form of a Final Order, which has been notified by the Central Government, unequivocally indicates that the so-called liberty granted to the lowest riparian state does not confer any right beyond the allocable share, in other words, what the lowest riparian state has been granted under the decision of the tribunal is a liberty to utilise the surplus water flowing without creating any right in favour of the State concerned. Such a liberty, therefore would mean that so long as the mass allocation is in force, the lowest riparian State can certainly utilise any excess water, flowing in the river basin, before it merges into the sea but such user sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the opinion that Scheme B evolved by the tribunal is also a decision of the tribunal, which unfortunately could not be given effect to, on account of lack of consent of all the States for constituting a Monitoring Authority and having failed in its attempt to get the said scheme implemented by getting a Monitoring Authority constituted, the said state filed the present suit. It is the refusal of the State of Andhra Pradesh to agree to the Constitution of an authority, thereby making the scheme unimplement able, which gave the cause of action to file the present suit on the basis of which the suit has been filed and taking into account the fact that the State of Andhra Pradesh has never agreed to the Constitution of the Krishna Valley Authority, which was thought to be the back-bone of Scheme B , it cannot be said that the plaintiff-State has no cause of action for filing the suit. This issue is answered in favour of the plaintiff and against the defendants. ISSUE NO. 3 31. The aforesaid issue really does not arise for any further elucidation and discussion inasmuch as it has been held by us that Scheme B is not the decision of the tribunal, thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the State of Karnataka, Section 6(A) confers power upon the Central Government and correspondingly, casts a duty on the said Government and if the Statute confers a power coupled with duty, the Court can always compel the authority concerned to perform the said duty, if the same is not performed at all. Mr. Nariman contends that though the tribunal devoted a good deal of its time in evolving Scheme B for better and fuller utilisation of the water of river Krishna amongst the three riparian States, but could not make it a part of the Final Order as one of the States did not give consent to the tribunal for constituting the Monitoring Authority, which in fact is said to be the back-bone of the scheme. But to obviate such difficulties when the Parliament itself has come forward, engrafting Section 6(A) on the Statute Book, which confers ample powers on the Central Government to form the authority for implementation of the decision of the tribunal, the Court, if it comes to the conclusion that Scheme B is the decision and should be implemented, can issue appropriate directions to the Central Government for constituting the Monitoring Authority. According to Mr. Nariman, Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribunal, while deciding issue Nos. 4, 5 and 7 and in that view of the matter, we are not inclined to examine the contentious issues as to whether the exercise of power by the Central Government under Section 6(A) is an executive one, as contended by Mr. Nariman or is legislative in nature, as contended by Mr. Parasaran. We, therefore, leave this issue open, not deciding the same. ISSUE NO. 12 33. This issue has been framed at the instance of the State of Maharashtra, in view of the stand taken by the said State that a review having been provided for, in 2000 A.D., the suit filed by the plaintiff is premature. While providing mass allocation in favour of three riparian States on the basis of 2060 T.M.C. of water at 75% dependable flow, the tribunal itself has observed in its Original Report, which has been marked as Exhibit PK1 that the Order of the tribunal could be reviewed at any time lifter 31st of May, 2000 and this period is considered reasonable in view of the fact that during the intervening period there will be increasing demands for water for irrigation and other purposes in the Krishna basin which may have to be examined in the light of the fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997 STATE OF ANDHRA PRADESH VS STATE OF KARNATAKA and Ors. Authored By : S.B. Majmudar, G.B. Pattanaik, U.C. Banerjee, R.P. Sethi S.B. Majmudar, J. 36. I had the privilege of going through the draft judgment prepared by brother G.B. Pattanaik, J. in the aforesaid suit. I respectfully agree with the same. However, looking to the importance of two pivotal issues, being issue Nos. 2 and 9(a), (b) (c), I have thought it fit to supplement the reasoning in the aforesaid judgment by my concurring observations on these issues as under: Issue No. 2: 37. Has this Hon'ble Court jurisdiction to entertain and try this Suit? (MAH). Article 131 provides as under: 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) xxx xxx xxx (b) xxx xxx xxx (c) between two or more States. If and in so far as the dispute involves any question (whether of law or fact) on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lley; or (ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) the levy of any water-rate in contravention of the prohibition contained in Section 7. Keeping in view the aforesaid salient features of the Constitutional scheme and the relevant provisions of the Disputes Act, we may turn to the plaint of the State of Andhra Pradesh in the present suit. While deciding the question of jurisdiction of this Court, the averments in the plaint on demurrer will have to be kept in view. Paragraph 4 of the plaint recites that: After the Krishna Water Disputes Tribunal rendered its decision, first on 24-12-1973 and a further decision on 27-5-1976, the plaintiff understood that all the riparian States, being constitutional units of the Federation of the Republic of India, would not only accept the said decisions but would give full effect to the same in letter and in spirit as is expected of constitutional Governments established by and under the Constitution of India. The plaintiff had expected all the party States to consult each oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions by Karnataka - defendant No. 1 in the suit' and it is in the light of these grievances that prayers and reliefs have been put forward after paragraph 75 of the plaint. The main prayers on the basis of which relief is sought for are prayers (a), (c), (d) and (f) which read as under: (a) declare that the report/decision dated 24-12-1973 and the further report./ decision dated 27-5-1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India. (b) xxx xxx (c) declare that the party States are entitled to utilise not more than the quantity of water which is allocated or permitted by the decisions of the KWDT for the respective projects of the respective party States before the 45 Tribunal; and that any variation in either storage or utilisation of the waters by each such state in respect of each of such projects could only be with the prior consent or concurrence of the other riparian States; (d) declare that all the projects executed and/or which are in the process of execution by the State of Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States, and without the approval of the Central Government? (A.P.) (c) Whether Karnataka can be permitted to raise the storage level at Almatti dam above RL 509.16 m. in view of the likely submergence of territories in Maharashtra. 10. Whether the Plaintiff proves that the reservoir and irrigation canals as alleged in paragraph 68 of the Plaint are oversized. If so, are they contrary to the Decision of the Tribunal? (A.P.). 20. Whether the State of Karnataka has violated the KWDT award by proceeding with several new projects in the sub-basin such as K-6, K-8 and K-9 in respect of which restrictions in quantum of utilisations have been imposed in the final decision of the Tribunal? (A.P.). Keeping in view the aforesaid salient features of the plaint of the State of Andhra Pradesh, the nature of controversies raised therein, reliefs claimed and the issues which fall for consideration of the Court, it is difficult to agree with the contentions of contesting defendants, especially, State of Maharashtra that the plaintiffs case does not fall within the fore-corners of Article 131 of the Constitution. It is obvious that the disputes rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmarked for Upper Krishna Project (hereinafter referred to as 'UKP') which consisted of three dams namely, Hippargi weir, Almatti Dam and Narayanpur Dam. Clause III of the final order of the Tribunal as gazetted under Section 6 of the Disputes Act clearly provides that the Tribunal hereby determines that, for the purpose of this case, the 75 per cent dependable flow of the river Krishna up to Vijayawada is 2,060 T.M.C. and this entire quantity is available to the States of Maharashtra, Kamataka and Andhra Pradesh. Out of the total quantity thus found available for distribution, the State of Maharashtra as per Clause V is enjoined not to use in any water year more than 560 TMC up to the water year 1982-83 and further additional quantities in future as laid down therein. Similarly, the State of Karnataka is enjoined not to use in any water year more than 700 TMC to start with, up to the water year 1982-83 and further permitted quantities thereafter as laid down therein. While plaintiff-State of Andhra Pradesh is given approval to use in any water year the remaining water that may be flowing in the river Krishna but thereby it shall not acquire any right whatsoever to use in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made subject matter of issue No. 9(a) at the instance of the plaintiff State of Andhra Pradesh, has a clear nexus with the grievance of the said State about the violation of the decision of the Tribunal. Thus, even if it is held that the decision of the Tribunal regarding Scheme A has not expressly mentioned any permissible height to which the Almatti dam could be constructed with appropriate storage capacity of water if it is held on evidence that that height of 524.256 FRL would result in utilisation of more water per water year than as allowed, as per Clause V of the decision of the Tribunal, then the question of violation of injunction of Clause V by defendant No. 1 State would clearly fall for consideration. It is in that light that we have to consider the grievance of the plaintiff-State. 41. For deciding this question we may usefully refer to UKP Stage-II Multi Purpose Project - detailed Report submitted by defendant No. 1 State before the Tribunal (Exh. PAP-46). In the said Report, we find at serial No. 2 salient features of the project. It is no doubt mentioned as UKP Stage-II Multi Purpose Project, irrigation and power. At paragraph 2.3.1 we find mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the height of the dam could very well be at 519.60 m. That would serve the purpose of the defendant No. 1 State both for irrigating the command area of 1,97,120 hectares as well for generating aforesaid units of electricity and would very well result in treating the Almatti project as multi-purpose project. 43. We may also usefully refer in this connection to an affidavit of Prof. Ram Prasad on behalf of State of Karnataka-defendant No. 1 herein. It has been furnished by defendant No. 1 State in support of its case. The said affidavit is at page 103 of compilation II file of the State of Andhra Pradesh. Paragraph 4 of the said affidavit also makes an interesting reading. The same reads as under: The Upper, Krishna Project (UKP) consists of two reservoirs, one at Almatti and the other at Narayanpur, to utilize 173 TMC of water for irrigation (including evaporation from the reservoirs). At the instance of the Government of Karnataka, Indian Institute of Science (IISc) carried out a study in 1996 (mentioned in para 12) in which I participated as one of the two technical consultants, which concluded that the full reservoir level (FRL) of the dam at Almatti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f experts, relied upon by defendant No. 1 State itself show that for utilising 173 TMC of water for irrigation and domestic use and power generator FRL 519.60 will be sufficient. It may be kept in view in this connection that under the award of the Tribunal an assessment of water requirement for UKP by the State of Karnataka was made by the Tribunal in the general terms as 155 TMC of water at Amatti dam and 5 more TMC was added to UKP because of calculation error so far as Hippargi weir project was concerned. They total up to 160 TMC and even that apart, according to Defendant No. 1 State, it would require storage capacity at Almatti dam for 173 TMC of water for irrigation, domestic use and power generation. We may also keep in view the Tribunal's decision, as seen from PK I and II, that Almatti dam was meant for being treated as a storage carry over reservoir for ultimately releasing water for irrigation to the down stream Narayanpur project. The height of the Almatti reservoir at FRL 519.60 is also found sufficient for the present purpose by the experts whose affidavits have been relied upon by defendant No. 1 State itself, as seen earlier. 46. In this connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the said letter it was stated that the Central Water Commission had observed that the project as envisaged (UKP Stages I II) creates a physical capability of water utilisation in excess of the envisaged utilisation of 173 TMC. It Was observed that this is possible in view of the proposed top of the radial gate at FRL + 521 meters against the required level of 518.7 meters for utilisation for 173 TMC of water. 48. In para 40 of the plaint at page 60 of Vol.-III is mentioned a letter of 11th July, 1996 addressed by the then Minister for Water Resources, Government of India to the Chief Minister of the plaintiff State regarding UKP Stage II. In the said letter it was disclosed that the Central Water Commission have opined that since no permanent flood pool is envisaged, gate top above FRL of 518.70M is not acceptable. Meaning thereby that the gate level can go at Almatti dam up to that height and any further height would not be acceptable to the Central Water Commission. 49. At para 48 of the plaint it has been averred that at the request of Andhra Pradesh, the Steering Committee of the ruling United Front Government at the center constituted a Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, the height of Almatti dam at FRL 519 would meet its present requirements of storage of sufficient water at Almatti dam for irrigation and power generation purposes. It may be that its future need depending upon the contingency of Scheme B ultimately getting finalised may require larger storage capacity calling for greater height at Almatti dam but at present as seen from the records, its need would be satisfied by restricting the height of Almatti dam at FRL 519. In fact, so far as the aforesaid height is concerned, even the plaintiff State, while cataloguing violations of KWDT decisions by the Karnataka State, has made the following pertinent averments in paras 66 (ii) 66(iii) at pages 74 to 76 of its plaint: 66(ii). As per well accepted engineering practices, a live storage of maximum of 103 TMC is considered sufficient for utilisation of 155 TMC of water for irrigation. This is more apposite in view of the local conditions of the project area. Since the live storage capacity of the Narayanpur reservoir was only 23.77 TMC, the Tribunal allowed construction of the Almatti reservoir only as a carry over reservoir to supplement Narayanpur but did not permit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution in the river water and render large extents of irrigated areas in the plaintiff State dry. ft would also alter the flow pattern which in turn is bound to jeopardise the riparian interests of the agriculturists who have prescriptive rights, a right of customary use of river water within the plaintiff-State. Such utilisation would also adversely affect the power production systems within the Plaintiff-State. 52. These averments thus clearly indicate that the real grievance of the plaintiff State is pertaining to the height of Almatti Dam beyond 518.7 m. and going up to 524.256 m. In other words, there is no real grievance of the plaintiff State regarding maintenance of height of Almatti Dam at least up to 518.7 m. or 519 m. Beyond that it would be a real bone of contention by the plaintiff State. The aforesaid grievance of the plaintiff State is further highlighted, when we turn to para 68 of the plaint at page 82. Therein the plaintiff states that the 1st Defendant Karnataka has grossly violated the decisions of the KWDT. In the said para pertaining to Almatti Dam, at item 2, it was mentioned as under: Sl. No. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantity of water to Kamataka State as per Scheme A on the basis of 75% dependable availability of water per each water year as decided upon by the Tribunal. Any increase of the height beyond FRL 519 m. may depend upon further allotment of water to Karnataka State by any subsequent decision of the Tribunal, as and when constituted, as that would depend upon the implementation of proposed Scheme B which up till now has not been elevated to the status of a binding decision of any Water Disputes Tribunal. 54. When we turn to issue No. 9(b), we find that it assumes that construction of a dam within the territory of Karnataka requires consent of other riparian States. This assumption by itself cannot be sustained for the simple reason that every riparian State within its own territory can construct a dam as required by it. The grievance of other riparian States would arise only if such construction is likely to affect the available water flow of inter-state river as available to it by any adjudication of the Tribunal or if it raises a dispute in this connection to be adjudicated upon by any future Tribunals The absolute assumption in the issue that State of Karnataka can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n July 1998, the Government of Maharashtra took up the question of likely submergence of the territory of Maharashtra with the State of Karnataka and the Union Water Resources Ministry and concerned Union Government Agencies. By that time, the State of Maharashtra was able to carry out on its own a preliminary survey which showed that with Almatti FRL/MWL RL 524.256 m. there would be submergence of Maharashtra's territory to an extent of 5 to 6 meters depth (16 to 20 feet depth). This submergence would further increase during the floods. Therefore, State of Maharashtra requested Karnataka by its letter dated 27.7.1998, for an immediate stoppage of all further construction at Almatti dam and specially the installation of gates and any storage against the gates to ensure that no territory of Maharashtra was submerged. It also asked for a written guarantee from Karnataka State that it would not install radial gates at Almatti and/or store water unless the matters of submergence of and likely damages to the structures in the territory of Maharashtra, were discussed and settled with the Maharashtra State to its entire satisfaction. The State of Karnataka was also informed that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement, a detailed study by Maharashtra of the documents, records, project reports and answers to interlocutress etc. filed in OS 1 and OS 2 of 1997 by the States of Karnataka and Andhra Pradesh revealed for the first time that the territory of the State of Maharashtra was likely to be submerged by the State of Karnataka by constructing the Almatti dam with FRL RL 524.256 m. and Hippargi Barrage with FRL RL 524.87 m. and would result in displacement of population from several villages and a few towns in Maharashtra. There was also likelihood of enormous damage to private and public properties and 'works and structures including archeological structures and pilgrimage places as hereinafter stated in para 5 below. There would also be disruption of communications, enhanced distress and damages during floods each year due to sedimentation and reduction of existing river channels' capacities, flattening of bed gradients, change in the already fragile river regime near the border of the two States and increased flood depths and durations and consequent distress every year. Similar submissions are found at page 34 of the additional written statement filed by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned that the dispute sought to be raised by defendant No. 3 State of Maharashtra is against defendant No. 1 State, namely, State of Karnataka regarding any increase in the height of Almatti Dam beyond 519 m. or for that matter beyond 512 m which, according to learned senior counsel Shri Andhyarujina for the State of Maharashtra, can be the permissible height and which would have no adverse affect of submergence in the Maharashtra territory. However, this dispute cannot be resolved in the present proceedings for the simple reason that it would assume the character of a 'water dispute' as we will presently see. 'Water dispute' as contemplated by Article 262 has been defined by Section 2(a) of the Disputes Act, as extracted earlier. It means any dispute or difference between two or more State Governments regarding use, distribution or control of waters of, or in, any inter-State river or river valley. Raising of the height of Almatti Dam beyond the level of 512 m. would entitle the State of Karnataka to control waters of river Krishna which is an inter-State river and if this type of control of the Krishna water by defendant No. 1 State is likely to submerge vil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of a Chairman and two other members nominated in this behalf by the Chief Justice of India from among persons who at the time of such nomination are Judges of the Supreme Court or of a High Court.] (3) The Tribunal may appoint two or more persons as assessors to advise it in the proceeding before it. Thus the grievance about submergence raised by Defendant No. 3 State squarely falls within the scope of 'water dispute' between defendant No. 3 State and defendant No. 1 State. For its resolution, adjudication by the Tribunal is the only way out. It is not in dispute between the parties that such a water dispute was never got adjudicated upon by KWDT. In other words, it remains an open dispute calling for its adjudication. It cannot be considered by us under Article 131. In fact in the statement of case of the State of Maharashtra defendant No. 3 herein before the Krishna Water Disputes Tribunal, which is annexed as MRK-I, the State of Maharashtra itself has considered such a grievance as a part of 'water dispute'. In para (k) in the reliefs sought by the State of Maharashtra from the Water Tribunal it was submitted as under: (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seen earlier, there is no real dispute amongst the three States up to the height of 519 m. of Almatti Dam. We can, therefore, while answering issue nos. 9(a) and (b) safely hold that, as at present advised and as the evidence stands on record, construction of Almatti Dam with an FRL 524. 256 together with all other projects executed and in progress and contemplated by the Karnataka State cannot be granted nor can the Karnataka State be permitted to construct up to that height without the consent of all other riparian States as well as without the approval of the Central Government. However, this will be subject to the rider that there cannot be any objection to permitting the State of Karnataka defendant No. 1 to construct Almatti Dam up to a height of 519 m. for which, as already discussed, there is no real dispute amongst the parties. However, even this much indulgence granted to defendant No. 1 State will be subject to the following safeguards and riders: 60. Even while defendant No. 1 State proposes to construct the Almatti Dam up to FRL 519 m. it will be subject to clearance by all other competent authorities functioning under different Statutes. Requisite clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of Karnataka, Union of India and State of Maharashtra as party defendants, seeking relief of declaration and mandatory injunction on the allegation that the State of Karnataka, in particular has made gross violations of the decision of Krishna Water Disputes Tribunal and such violations have adversely affected the residents of the State of Andhra Pradesh. The relief sought for in the suit are as under: (a) declare that the report / decision dated 24.12.1973 and the further report decision dated 27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India; (b) declare that the riparian States are duty bound to fully disclose to each other and also to the Union of India all particulars of all projects undertaken or proposed after December, 1973 and May, 1976 and to direct the defendants to ensure that execution thereof are in conformity with and do not conflict with or violate the decisions of the KWDT and they do not adversely affect the rights of the other riparian States; (c) declare that the party States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nals. (i) grant a permanent injunction restraining the State of Karnataka from undertaking, continuing or proceeding with any further construction in respect of the following projects; Almatti Dam under UKP Construction of Canals/Lifts Schemes on Almatti Reservoir Upper Krishna Projects in K-2 Sub-basin. Hippargi Weir/Irrigation Schemes. Construction of Indi and Rampur lift Schemes on Narayanpur reservoir and the canals. (i) appoint a team of experts for making a comprehensive techno-economic evaluation and environmental impact analysis in respect of the following projects and, pending orders of this Hon'ble Court on the report of the team of experts, grant an order of injunction restraining the Defendant No. 1 - State of Karnataka from proceeding with any further construction in any of the following projects/schemes: Almatti Dam under UKP Construction of Canals/Lifts Schemes on Almatti Reservoir. Upper Krishna Projects in K-2 Sub-basin. Hippargi Weir/Irrigation Scheme. Construction of Indi and Rampur lift schemes on Narayanpur Reservoir and the cana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Disputes Tribunal, the plaintiff has stated that the tribunal framed seven main issues and under issue No. II with its eight sub-issues, decided the question of equitable apportionment of the beneficial use of the waters of the river Krishna and the river Valley by evolving Scheme A and making the same as its Final Order or decision, which became binding on all the parties, after the same was notified by the Union Government under Section 6 of the Act. It is not necessary for us to reiterate all the facts leading to the raising of disputes and Constitution of the tribunal, which we have already narrated in judgment in O.S. 1 of 1997, filed by the State of Karnataka. The plaintiff then has averred as to how on the basis of agreement between the parties, the 75% dependable flow at Vijayawada was found to be 2060 TMC and while considering the case of each State for allocation of their respective share of water in respect of the aforesaid 75% of dependable flow, several projects in the river basin, already undertaken by the States as well as the quantity of water required for the projects were considered by the tribunal on the basis of which the ultimate figure of allocation were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the State of Karnataka, the tribunal has allocated only 160 TMC of water for being used and the construction of Almatti Dam to the height of 524 Meters, as indicated by the State of Karnataka, would, therefore, on the face of it, is in violation of the decision of the tribunal. After referring to the different applications for clarifications sought for by different States under Section 5(3) of the Act and the answer of the tribunal on the same, the plaintiff has also averred as to how the tribunal dealt with the contentions raised by the States of Maharashtra before it, in relation to the allocation of 52 TMC of water from Narayanpur Right Bank Canal. According to the plaintiff, though, no doubt in the Final Order of the tribunal there has been a mass allocation of water in favour of the three riparian States out of the 2060 TMC of water under 75% of dependability at Vijayawada, which figure was arrived at by consent of the parties, but a closer scrutiny of the report in its entirety being examined, it would be apparent that the allocation in respect of different sub-basins had been made on the basis of projects undertaken in those sub-basins and consequently, no State would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter to avoid violation of the award of the Krishna Water Disputes Tribunal. In paragraph 39 of the plaint, it has been averred that the Union Government as well as the Central Water Commission which are responsible for clearance of inter-State Projects, bent upon clearing the Almatti Project up to a dam height of 524 meters without even consulting the State of Andhra Pradesh, though, according to the plaintiff in a Federal Structure of the Government, each constituent State would be entitled to know the progress of any project in relation to inter-State river, since it may have several adverse effects on the other States. The plaintiff also averred that at the behest of the State of Andhra Pradesh, the United Front Government, which was at the center, constituted a Committee of four Chief Ministers to examine the issues relating to the construction of Almatti Dam, which committee in turn, decided to constitute an Expert Committee with a representative of the Central Water Commissioner and Planning Commission, who however, did not ultimately participate in the proceedings. The said Expert Committee has found that the proposals of the Upper Krishna Project with FRL of 524.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Krishna Water Disputes Tribunal. From paragraph 65 onwards, the plaintiff has narrated several facts constituting violations of the decisions of the tribunal by the State of Karnataka and from paragraph 69 onwards, the plaintiff has indicated the role played by the Central Government in the matter of allowing the State of Karnataka to raise the height of the dam, which would ultimately lead to violation of the terms and conditions as well as the restrictions in the award of the tribunal and which would infringe the rights of the State of Andhra Pradesh and its inhabitants. The cause of action for filing the suit has been indicated in paragraph 73 of the plaint, namely indulgence of the State of Karnataka in going ahead with the Upper Krishna Project Stage I and II with the construction of the Almatti Dam which is in violation of the decision of the tribunal in letter and spirit. 70. Defendant No. 1 - State of Karnataka in its written statement, took the stand that the tribunal had not made any project-wise allocation and on the other hand, the allocation is enbloc and as such the question of interpreting the decision of the tribunal to the effect that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter within that State in a manner not inconsistent with the order of this tribunal and in view of such specific provision, it is futile for the State of Andhra Pradesh to contend that the height of the dam at Almatti should not be raised to 524.256 meters. The defendant has further averred that the Project at Almatti has been undertaken at huge cost exceeding ₹ 6000 crores and it is not in national interest to stop the project at this advance stage and the suit has been filed with the design to cause delay in the completion of the projects undertaken by the State of Karnataka. It has been reiterated that the utilisation of water would be entirely within the allocated quantity made by the tribunal. According to Defendant No. 1, the plaintiff has not made out any case of breach of its legal rights and, therefore the suit under Article 131 of the Constitution is not maintainable. The defendant also narrated the background under which the Central Government set up the tribunal for adjudication of the disputes between the riparian States and how ultimately the tribunal gave its report, stating therein the facts found as well as the decision thereon. The defendant State has also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh in this regard is wholly misconceived. The defendant further contends that the State of Andhra Pradesh not having utilised the opportunity to seek clarification under Section 5(3) of the Act with regard to the height of or any other specification of the Almatti Dam is not entitled to raise this dispute in this Court by filing a suit under Article 131 of the Constitution. The defendant-State of Kamataka reiterated that the utilisation of water under the U.K.P. first at Almatti and latter at Narayanpur downstream, is entirely within the scope of 173 TMC and in any event within the aggregate share of 734 TMC allocated to the defendant Kamataka and the construction of the Upper Krishna Project at Almatti and at Narayanpur is all consistent with the work specifications prescribed by the Expert technical bodies in all respect including the provision for river sluices. In respect of Clause XV of the Final Order of the tribunal, the defendant averred that the quantity of 155 TMC considered in respect of Upper Krishna Project does not restrict the defendant Kamataka from planning increased utilisations by taking into account quantities of 34 TMC regeneration, 23 TMC of water by diversion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the written statement, the defendant No. 1 also averred that the findings of the said Expert Committee are erroneous. With regard to the allegations in the plaint that storage of huge quantity of water by construction of Almatti Dam would affect the interest of Andhra Pradesh and its inhabitants, the defendant Karnataka denies the same and also stated that the dam is intended to utilise about 173 TMC of water for irrigation and the remaining storage water will be used for non consumptive purpose i.e., production of power and, therefore, the water will flow down to Andhra Pradesh and the said State will not be affected in any manner. With respect to allegations in the plaint regarding incorporation of Chamundi Power Corporation Ltd., the State of Karnataka has averred that the State is pursuing the matter before the Central Electricity Authority in accordance with law and the question of getting the consent of the plaintiff does not arise. So far as the assertions made in the plaint about the cascading and far-reaching effect on the environment is concerned, the State of Karnataka denies the same. On the question of alleged submergence, it has been averred that the State of Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the State of Karnataka. According to this defendant, the State of Andhra Pradesh being the last riparian State is recipient of abundant waters comprising the unutilised share of upper riparian States in addition to its allocations made in its own favour and, therefore, no case has been made out establishing any injurious hardship so as to entitle the State to get a discretionary relief of injunction. The defendant also averred that the plaintiff has not placed an iota of evidence based of any acceptable material establishing the alleged loss of drinking water, food grains or unemployment and all such allegations are falacious. According to the State of Karnataka, all the revised schemes at all relevant times and been submitted before the Appropriate Authorities of the Central Government and projects are being taken up only after getting clearance from the competent authorities. It has been averred at the end that the basis of the suit being that the allocation made by the tribunal is project-wise and the said basis being in-correct, the plaintiff is not entitled to the reliefs prayed for by filing the suit under Article 131 of the Constitution. 71. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght in Stage II, the Government of Karnataka desired to do construction of Almatti dam with fall section as required for ultimate stage and solid crest upto 512 m in UKP Stage I itself. The revised proposal of Government of Karnataka was examined by the Central Water Commission and considered by Technical Appraisal Committee in its 20th Meeting held on 12.5.1982. The TAC recommended that the clearance of the Government of India for raising Almatti Dam in full width upto EL 500 m may be accorded subject to the observation that revised estimate be submitted by the State Government. Subsequently, the State Government came up with modified proposals with Almatti spillway crest at EL 509 m and 15.2 high radial gates with a view to reduce submergence under Stage I of the project. This revised stage I estimate got the approval of the Planning Commission on 24.4.1990. According to the written statement of the Central Government, Stage I of UKP was duly approved by the Central Water Commission as well as by the Planning Commission with certain modifications enabling the State Government to take up to Stage II at later stage. It has further been averred that the Karnataka Government has revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Maharashtra categorically avers that the Tribunal equitably allocated the waters of the river Krishna by allocating the quantities enbloc or in mass quantities. Though it has discussed individual projects of each State only for the limited purpose of assessing the needs of each State in accordance with the principles of equitable distribution. It has further been stated in the said written statement that apart from the restrictions expressly stated in the final order of the Tribunal which has been notified by the Central Government no other restrictions have been imposed on the methods of use by each State within the allocated share of the State concerned and Tribunal has not put any restriction on the storage by each State and according to Clause VII of the final order the storage of water by each State would not be considered as use of water by the State concerned. In the very written statement several paragraphs of the Report of the Tribunal have been quoted to indicate that the ultimate allocation was enbloc and not project wise and further there has been no restriction or restraint placed by the Tribunal with regard to storage, size and height of dams in the Krishna Basin. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arashtra and no State should be allowed to have its project which will have deleterious and adverse effect on the other State, It is in this connection in the additional written statement it has been further averred that the said State of Karnataka has not obtained the relevant clearance from different environment authorities and forest authorities and even the Central Water Commission has not given the clearance and, therefore, the State of Karnataka should be injuncted from raising the dam height from 519.00 m to 524.256 m. until and unless the actual area likely to be submerged is made known after due survey. In the written statement the adverse effect of submergence have been indicated in different paragraphs and ultimately it has been prayed that the prayer h, i j sought for by the plaintiff so far as it relates to Almatti Dam under UKP should be allowed, namely, the State of Karnataka should be injuncted. Though the State of Maharashtra filed the aforesaid additional written statement taking the stand totally contrary to the stand taken earlier but no order had been passed on the same and it is only when the hearing of this suit began the Court passed an order that without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Government?(A.P.) 10. Whether the Plaintiff proves that the reservoir and irrigation canals as alleged in paragraph 68 of the Plaint are oversized. If so, are they contrary to the Decision of the Tribunal?(A.P.) 11. Whether the Plaintiff State of Andhra Pradesh proves specific allocation/ utilisation for UKP and canals as alleged? (A.P.) 12. Whether State of Karnataka is entitled to provide for any irrigation under Almatti canals and other new projects, when no allocation is made under the decisions of the KWDT? (A.P.) 13. Whether the Defendant State of Karnataka is entitled unilaterally to reallocate/readjust the allocation/utilisation under the UKP or any other project? Is concurrence of other riparian States necessary? (A.P.) 14. Whether the Union of India can permit and/or is justified in permitting the State of Karnataka to proceed with various projects which are in violation of the decisions rendered by KWDT? (A.P.) 15. Whether Upper Krishna Stage-II Multipurpose Project could be executed without the environmental clearance under the Environment (Protection) Act, 1986 and the Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely, Karnataka and Maharashtra accept this claim of the plaint of the State of Andhra Pradesh and agree to the grant of relief in the suit in terms of prayer in Clause (a) as under: (a) declare that the report/decision dated 24.12.1973 and the further report/ decision dated 27.5.1976 of the Krishna Waters Dispute Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India. In other words, there is no controversy in the Suit between the plaintiff and Defendants 1 and 3 i.e. Andhra Pradesh, Karnataka and Maharashtra and that the report/decision dated 24.12.1973 and the further report/decision dated 27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh. There is thus no controversy between the three riparian States to this extent. The learned Attorney General appearing for the Union of India submits that he is unable to make any statement today in this behalf as he has to seek instructions in the matter. This statement made by the learned Counsel for the three rip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Kalikrishna Tagore v. The Secretary of State - LR 15 Ind App186 (ii) Law Report 25 Indian Appeals at 107-08 (iii) 1913 Vol. 25 Madras Law Journal 24. At the outset we are unable to accept the contention of Mr. Ganguli that the decision of the Tribunal which is ultimately notified under Section 6 of the Act can be held to be a decree of a suit and the report being the judgment and, therefore, the decided case laws on which reliance has been placed has no application at all. The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution is a complete Act by itself and the nature and character of a decision made there under has to be understood in the light of the provisions of the very Act itself. A dispute or difference between two or more State Governments having arisen which is a water dispute under Section 2(c) of the Act and complaint to that effect being made to the Union Government under Section 3 of the said Act the Central Government constitutes a Water Disputes Tribunal for the adjudication of the dispute in question, once it forms the opinion that the dispute cannot be settled by neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prayer has been made. The defendant State of Karnataka understood the prayer on that basis as would appear from the averments made in the written statement of defendant No. 1 in paragraphs 3.1, 3.2 and 3.3. The aforesaid prayer had been made for the relief that notwithstanding enbloc allocation made in the final order of the Tribunal which is the decision of the Tribunal but the very basis to arrive at that decision being the project wise allocation contained in the report the said project wise allocation must be read into the enbloc allocation and, therefore, there must be restriction on the part of the State of Karnataka not to use more water in Upper Krishna Project than the allocated quantity of 160 TMC. Thus read the order of this Court dated 30th September, 1997, cannot be construed to mean that a decree has to be passed making the entire report as well as the further report of the Tribunal binding on the parties. So far as the question whether allocation made enbloc or project wise the same has been answered while discussing issues nos. 1, 3 and 5 and in this view of the matter the earlier order dated 30th September, 1997 is of no consequence in disposing of the suit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, except those mentioned in the order of the tribunal itself and that being the position, the plaintiff would not be entitled to an order of injunction in relation to the construction of Almatti Dam to a height of 524.256 meters. Before we focus our attention to the evidence on record in answering these three issues, in the light of arguments advanced by the counsel for the parties, it must be borne in mind that injunction being a discretionary remedy, a Court may not grant an order of injunction, even if all the three necessary ingredients are established and those ingredients are prima facie case of infraction of legal rights, such infraction causes irreparable loss and injury to the plaintiff and the injury is of such nature that it cannot be compensated by way of damages. In the case in hand, when the plaintiff has prayed for an order of mandatory injunction to injunct the State of Karnataka from constructing the dam at Almatti to a height of 524.256 meters and makes out a case of infringement of legal rights of the State of Andhra Pradesh, flowing from the decision of the Krishna Water Disputes Tribunal, which decision has become final and binding on being notified by the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fetter on any of the States in utilising water in any project to a limited extent, excepting those contained in Clause (IX) of the decision. The allocation made to the three States of Maharashtra, Kamataka and Andhra Pradesh for their beneficial use has been provided in Clause (V) and subject to such conditions and restrictions as are mentioned in the subsequent clauses. Clause (V) of the decision which in fact makes the allocation, may be quoted herein below in extenso: Clause V (A) The State of Maharashtra shall not use in any water year more than the quantity of water of the river Krishna specified hereunder: (i) as from the water-year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83 560 TMC. (ii) as from the water year 1983-84 up to the water year 1989-90 560 TMC plus a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1975-76, 1976-77 and 1977-78 from its own projects using 3 TMC or mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects. (C) The State of Andhra Pradesh will be at liberty to use in any water year the remaining water that may be flowing in the river Krishna but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year water of the river Krishna in excess of the quantity specified hereunder: (i) as from the water year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83 800 TMC (ii) as from the water year 1983-84 up to the water year 1989-90 800 TMC plus a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its own projects using 3 TMC or mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid Clause V, so long as they do not use more than the quantity allotted in their favour in any water year. In other words under Clause V of the decision, the State of Maharashtra is entitled to use up to 560 TMC in any water year and the State of Karnataka similarly is entitled to use up to 700 TMC in any water year. The language used by the tribunal in formulating Clause V of the decision is clear and unambiguous and as such it is difficult for the Court to read into it any restrictions as submitted by the learned senior counsel, appearing for the State of Andhra Pradesh. We may mention at this stage, that the original report and the decision of 1973 was marked as Exhibit PK-1 in OS 1/97 and the further report and the decision-of 1976 was marked as Exhibit PK-2 in OS 1/97, and those two documents having been referred to by the parties in course of arguments as PK-1 and PK-2. We have also in judgment referred as PK-1 and PK-2 which were exhibited as such in OS 1/97. 80. Mr. Ganguli, the learned senior counsel however contended before us that before the tribunal, each of the three riparian States claimed water for their various projects, covering utilisation to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as Almatti Dam is concerned. At a later stage when in its Further Report Exhibit PK2, the tribunal allocated additional 5 TMC for utilisation under Hippargi Project, the conclusion is irresistible that in Upper Krishna Projects in Hippargi, Almatti and Narayanpur, a total quantity of 160 TMC was allocated and this must be read into the Final Order in Clause (V), though not specifically mentioned therein. It is in this connection, Mr. Ganguli took us through the different pages of Exhibit PK1 as well as the plaint and the written statement of the State of Karnataka. But as has been stated earlier, if the decision of the tribunal is its Final Order, as notified by the Central Government in exercise of power under Section 6 of the Act, we really fail to understand, how the aforesaid limitations can be read into the said decision, particularly, when Clause (V) of the decision is clear and there is no ambiguity in the same It is undoubtedly true that while considering the question of extent of allocation of water in favour of the three riparian States out of 2060 TMC of water at 75% dependability, the tribunal did take into account the different projects already undertaken by diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this stage to quote the exact findings of the Tribunal in this regard: In saying that the project is worth consideration we do not wish to be understood to say that the project, if feasible, should be adopted. Likewise when we say that the project is not worth consideration we do not say that no water should ever be allowed for it. If at some future date more water becomes available it is possible that more projects may come up to the worth consideration standard. In assessing whether the project is worth consideration or not we have taken into account the physical characteristics of the area like rainfall etc., the catchment area, the commanded area, the ayacut of the project, the fact whether the project is meant for irrigating the scarcity area or not and such other facts. In other words we determine on pragmatic considerations what needs of the States of Maharashtra and Mysore can be satisfied so that an equitable way may be found out for distributing the balance of the dependable flows between the two States. It should not be taken our observations relating to the projects which we have noted as worth consideration are to be accepted in any way as final and bindi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Andhra Pradesh did not press the said clarification No. 4 on the ground that the allocations are enbloc which is apparent from Exhibit PK-2 dealing with clarification No. 4. Having made an unequivocal statement before the Tribunal itself that the allocations are enbloc we fail to understand how the State of Andhra Pradesh has filed the suit making out a case that there has been any project-wise allocation by the Krishna Water Disputes Tribunal. The aforesaid statement of the learned Advocate General made before the Tribunal has not been explained either in the plaint filed by the State nor even in course of hearing of the suit, and in our view, the State of Andhra Pradesh also fully understood that the allocations made under Scheme 'A' was enbloc. It further appears from Exhibit PK-2 that the State of Andhra Pradesh did file a clarification No. 5 under Section 5(3) of the Act praying that the maximum quantity which could be utilised in K-5 and K-6 sub-basin of the State of Maharashtra and Karnataka should be specified and ultimately on 23rd August, 1974, the learned Advocate General for the said State did not press the clarification as it had no materials on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In course of hearing of the suit the learned Counsel Mr. Ganguli has not placed before us any material or any law which compels the concerned authority to consult all the riparian States before sanctioning a project of one State. In the absence of any legal basis for such stand we are not able to agree with the stand taken by the State of Andhra Pradesh that the Central Government was duty bound to take the consent of other States while sanctioning any project of any of the riparian States. That apart, these issues are academic in the context of the Upper Krishna Project of the State of Karnataka and, in particular, the construction of the Almatti Dam. Before the Tribunal the State of Karnataka had submitted the report of Upper Krishna Project of July 1970 which was exhibited before the Tribunal as MYPK-3 and the said document has been marked as Exhibit PAP-42 in the present suit. The salient features of the said project, so far as Almatti Dam height is concerned, was shown as FRL 524.256 m and top of the Dam at 528.786 m. The entire project itself being there before the Tribunal, though the Tribunal did not consider it necessary to discuss the project in particular in view of enb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of construction of Dam at Almatti or its height and mass allocation made, being binding upon all parties after being notified under Section 6 of the Act, the grievance relating to the construction of Dam at Almatti or to its height would be a matter of water dispute within the meaning of Section 2(c), in as much as' it would be a matter concerning use of water of rivet Krishna and, therefore, cannot be a matter for adjudication in a suit under Article 131 of the Constitution of India. If the complaint of the State of Andhra Pradesh is that by construction of Almatti Dam which is an executive action of the State of Karnataka the State of Andhra Pradesh is likely to be prejudicially affected then also on such complaint being made to the Union Government under Section 3(a) the matter could be referred to a Tribunal for adjudication. But, we fail to understand how this Court could entertain the aforesaid lis and decide the same, particularly when the Tribunal has not focussed its attention on the same nor has made any adjudication in respect to the construction of Dam at Almatti or its height. Needless to mention that notwithstanding the allocation of water in river Krishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viously in the larger interest of the country and all the States concerned to allow the Dam up to the height of 519.6 m and then leave it open to the States concerned to put forth their grievances before the Tribunal to be appointed by the Central Government for resolving the disputes relating to sharing of water in river Krishna. Reading the plaint as a whole it appears to us that the plaintiff State had not made any grievance for having a Dam at Almatti up to a height of FRL 519.6 m and on the other hand, the entire grievance centers round the proposal of the State of Karnataka to have the height at 524.256 m. The report of the Expert Committee referred to in the plaint has been exhibited as Exhibit PAP-212 and even that report indicates that the complaint of Andhra Pradesh was that the height of Almatti Dam at FRL 524.256 m which has not been approved as yet by the Government of India, would adversely affect the lower riparian State of Andhra Pradesh both in the matter of irrigation as well as generation of power. The said report further reveals that the State of Karnataka is desirous of having the Dam height at FRL 524.256 m so that it can store its share of water available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case as PAP 45 also indicates that minimum FRL required to get 173 TMC utilisation is found to be 518.7 m. It is in that report it has been indicated that it is because of probable maximum flood of 31000 qmx., the water level is expected to go up to 521 m and, therefore, the proposal is. to keep the height of the gate to 521 from the crest level with 2 mts. as the gate height. It may be stated at this stage that the height of the Almatti as approved by the Competent Authority is crest level 509 meter and it is in this context to have the height at FRL 524.256 m the State of Karnataka has proposed to have the gate height of 15 meters. But as has been indicated earlier, since the entire basis of the State of Karnataka to have the height of the Dam at 524.256 m is contingent upon implementation of Scheme 'B' of the Tribunal thereby entitling the State of Karnataka to get its share in excess water and continue the Almatti Dam as a carry over reservoir and since we have decided against the State of Karnataka in O.S. 1 of 1997 which the State had filed for implementation of Scheme 'B\ there is absolutely no justification for the said State to have the Dam height at Alma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two suits, so as to mitigate the grievance of each of the riparian States on a complaint being made by any of the States. So far as sub-issue (b) is concerned, we really do not find any substance in the contention of Mr. Ganguli, the learned Counsel appearing for the State of Andhra Pradesh. Though it may be fully desirable for all the States to know about the developments of the other States but neither the law on the subject require that a State even for utilisation of its own water resources would take the consent of other riparian States in case of an Inter-State river. So far as the second part of Issue 'b' is concerned, the answer is irresistible that the project of each State has to be approved by the Central Government as well as by other statutory authorities and the Planning Commission, but for which a State should not proceed with the construction of such project. Issues 9(a) and (b) are answered accordingly. ISSUE 9(C) 87. Issue 9(C) had been framed while allowing the additional written statement of the State of Maharashtra, which relates to the question of submergence. It is to be noted that in the original written statement filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original jurisdiction of the Supreme Court under Article 131 on being invoked by means of filing a suit, the Court should be careful not to be influenced by the considerations of 'cause of action' which are germane in suit and the scope and ambit of the said jurisdiction must be determined on the plain terms of the article without being inhibited by any a priori considerations. The learned Judge in the same decision had also indicated that the very object of Article 131 seems to be that there should be a Forum, which could resolve such disputes between two States or the State and the Union and that forum should be the highest Court in the land so that the final adjudication of disputes could be achieved speedily and expeditiously without either party having to embark on a long tortuous and time consuming journey through a hierarchy of Courts. Mr. Andhyarujina also relied upon the observations of Bhagwati J in the aforesaid case to the effect: What Article 131 requires is that the dispute must be one which involves a question on which the existence or extent of legal right depends. The article does not say that the legal right must be of the plaintiff. It may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions which fetter the jurisdiction of a Court of first instance, which entertains and tries suits of a civil nature. The very nature of the dispute arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits. 91. Mr. Andhyarujina, also referred to the comments of Mr. Seervai in his book, wherein the author has said that it is reasonable to hold that the court has power to resolve the whole dispute, unless its power is limited by express words or by necessary implications and the Supreme Court would have the power to give whatever reliefs are necessary for enforcement of a legal right claimed in the suit, if such legal right is established. Mr. Andhyarujina also contended that once the grievance of the State of Maharashtra having brought forth before the Supreme Court in a pending proceeding under Article 131 of the Constitution, the jurisdiction having been invoked by the State of Andhra Pradesh, the Court has ample power under Article 142 of the Constitution and for doing complete justice between the parties, the Court would not be bound by the provisions of any procedure and can make a dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h its grievance on the question of likely submergence of its territory and has prayed for the relief of injunction against the State of Karnataka for raising the dam height up to 524.256 meters. Mr. Andhyarujina also submitted that the exact extent of area to be submerged in the event the Almatti Dam is allowed to be constructed up to 524.256 meters, has not yet been ascertained and surveys are still on, but there cannot be any doubt that a large scale of the area within the State of Maharashtra would get submerged. Mr. Nariman, the learned senior counsel, appearing for the State of Karnataka did not seriously dispute the right of a co-defendant like State of Maharashtra to put forth the grievances so as to get relief against another co-defendant, though he undoubtedly, submitted that in the event, the State of Maharashtra was allowed to have the additional written statement and an adjudication of the additional issues framed, the State of Karnataka should have been given an opportunity, putting forth its case. He however contended that the dispute relating to submergence of territory of Maharashtra on account of the height of the dam at Almatti being raised to 524.256 meters, cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal right of such dispute. In answering such a dispute, it may be difficult to entertain a further dispute on the question of submergence as raised by the State of Maharashtra, a co-defendant. But in view of the stand taken by Mr. Nariman, without further delving into the matter and without expressing any final opinion, whether such a stand, as the one taken by Maharashtra is possible for being adjudicated upon, we would examine the merits of the said contention. A bare perusal of the report of the tribunal setting out the facts as found by it and giving its decision on the matters referred to it as per Exh. PK1 as well as the Further Report of the said tribunal, giving explanation to the application for clarifications filed by the different States, as per Exh. PK2, we find that the question of submergence within the territory of the State of Maharashtra on account of Almatti Dam in the State of Karnataka has not at all been discussed nor any opinion has been expressed thereon. The tribunal having given its decision on the question of sharing of the water in river Krishna on enbloc allocation basis, if the user of such water in a particular way, becomes detrimental to another Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surveys are still on. It is too well settled that no Court can issue an order of mandatory injunction on mere apprehension without positive data about the adverse effects being placed and without any definite conclusion on the question of irreparable injury and balance of convenience. Then again, while allowing a particular State to use the water of an inter-State river, if the manner of such user really submerges some land in some other State, then the question has to be gone into as to what would be the amount of compensation and how the question of rehabilitation of those persons within the submerged area can be dealt with which really is an aspect of the doctrine of equitable apportionment and all these can be gone into, if a complaint regarding the same is made and the Government of India appoints a tribunal for the said purpose. But these things cannot be gone into, in a suit filed under Article 131 as a part of implementation of an adjudicated dispute of a tribunal. It is also surprising to note that even though the Original Project Report of 1970 in relation to Almatti Dam had been produced before the tribunal, which was adjudicating the disputes raised by different States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be held to be in consistent with the order of Tribunal. In this view of the matter we are unable to accept the submission of Mr. Andhyarujina, learned senior counsel appearing for the State of Maharashtra that the user of water by the State of Karnataka by constructing a Dam at Almatti is in consistent with Clause XV of the decision of Tribunal. Issue 9(C), therefore, is answered against the State of Maharashtra. ISSUE NO. 10 95. The aforesaid issue has been framed in view of the averments made in paragraph 68 of the plaint. In the aforesaid paragraph of the plaint the plaintiff has indicated the figure in terms of acreage of land planned to be irrigated by different projects and excess utilisation of the water beyond the allocation made by the Tribunal in respect of different projects. The plaintiff obviously is under a misconception that in the decision of the Tribunal there has been a project wise location of water in respect of different projects in different States. We have already considered the matter at length and have come to the conclusion that the allocation was made enbloc and not project wise and as such, the question that construction of ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a basin is permitted even though such use may exceed the limits of consumptive use specified by the Tribunal for each State or sub-basin or reach, and if so, under what conditions and safeguards. 96. The State of Andhra Pradesh to the aforesaid application for clarification submitted two Notes Nos. 9 and 10 before the Tribunal on 7th May, 1975 and 8th May, 1975. In this note it was specifically pleaded that the Tribunal may be pleased to explain that the Upper State have no right to store water in excess of share allocated to them and in a manner which will affect the right of the State of Andhra Pradesh in the dependable flow. Several grounds had been advanced by the State of Andhra Pradesh as to why such guidance is needed, particularly when under Scheme 'A' allocation there has been no express provision for sharing of deficiency. The Tribunal considered the same and ultimately noted in its further report under Exhibit PK-2 that the State of Andhra Pradesh withdrew the said note and consequently no ground for any further clarification. A note having been submitted by the State of Andhra Pradesh seeking a clarification for fixation of a limit in the matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en again the question of getting concurrence of other riparian States, as has been raised by the State of Andhra Pradesh is wholly misconceived. Neither there exists any law which compels any State to get the concurrence of other riparian States whenever it uses water in respect of inter-State river nor the decision of the Tribunal which allocates the water in the Krishna Basin on the basis of 75% dependability which figure was in turn arrived at by an agreement of parties puts any condition to have the concurrence of other riparian State. In this view of the matter without further dilating on this issue, we answer the same against the plaintiff. ISSUE NO. 14 99. The aforesaid issue has been raised on the hypothesis that the Union of India is going to sanction different projects within the State of Karnataka which are in violation of the decision of Krishna Water Disputes Tribunal. As has been indicated earlier, so far as the Upper Krishna Project is concerned, the Government of India has approved the Dam height at crest level of 509 meters. The subsequent revised project submitted by the State of Karnataka in 1993 and re-submitted in 1996 are still under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as user of water in respect of an Inter State Reservoir is concerned, the plans are also examined by the Central Water Commission, who is an expert body and the views given by such Commission also is taken into consideration by the Government of India. This being the entire gamut of procedure we really fail to understand on what basis the State of Andhra Pradesh has made the allegation and the issue has been struck in that respect. Needless to mention that every such projects whether being executed in the State of Maharashtra or Karnataka or Andhra Pradesh must be approved by the appropriate authority of the Government of India and necessarily, therefore, before any approval is accorded, the project must be found to have complied with all the relevant laws dealing with the matter. It has not been placed before us that the State of Karnataka has carried out any project in contravention of the provisions of any particular law made by Parliament or in contravention of any direction issued by the Government of India. This issue accordingly, in our opinion, is pre-mature. But we hasten to add that all the projects of different States concerning user of water available to them in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the crops in the State of Andhra Pradesh the State will sustain irreparable damages and, as such on the admission of the State of Karnataka a finding could be arrived at. At the outset we must state that the written memorandum furnished by the State of Karnataka cannot be read in isolation by spinning out a particular sentence and must be read as a whole. Thus read we do not find any admission on the part of the State of Karnataka indicating any reduction of flows to the State of Andhra Pradesh. Mr. Ganguli also pointed out to Clause XV of Scheme 'B' whereunder the Tribunal itself had come to the conclusion about the possibility of water shortage and had empowered the concerned authority to make necessary adjustment. But what has been stated thereunder is in relation to the adoption of Scheme 'B' which has not been possible on account of lack of sincerity of the State of Andhra Pradesh and even thereunder the Krishna Valley Authority has been empowered as often as it thinks fit to determine the quantity of water which is likely to fall to the share of each State and adjust the uses of the authorities in such a matter so that by the end of water year each State is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the other hand, the State of Karnataka in its written statement has asserted that under Upper Krishna Project, the utilisation would be to the tune of 173 TMC and this is apparent from several documents placed before the tribunal as well as in this proceeding. In this view of the matter, we answer this issue by holding that the plaintiff has failed to establish that the cumulative utilisation in K2 sub-basin of the State of Karnataka would be to the tune of 428.75 TMC. At any rate, since we have already held that the allocation was enbloc and there is no restriction for utilisation in K2 sub-basin in the decision of the tribunal. The issue really does not survive for consideration. The issue is answered accordingly. ISSUE NO. 20 105. This issue relates to the decision of the tribunal in Clause (IX), under which Clause, restrictions have been put to the extent indicated thereunder. But the State of Andhra Pradesh has not been able to establish the allegation made in this regard nor even the counsel, appearing for the State has made any submission thereon. During the course of hearing of the suit, on behalf of the State of Andhra Pradesh, written submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Karnataka, Irrigation Department, who has also been nominated as Director of KBJNL, the said nomination having been made under Article 147(c) of the Articles of Association of the Companies. It has been categorically stated in the said affidavit that for facilitation of mobilising funds and providing sufficient funds to complete' irrigation projects the Constitution of KBJNL has been constituted with the sole idea to complete the works of Upper Krishna Projects by 2000 AD. This company is a Government Company which has been established with an approval of the Cabinet in the State of Karnataka by its decision dated 6th May, 1994 and the Chie Minister of the State of Karnataka is the Chairman of the Company whereas Deputy Chief Minister is the Vice-Chairman of the Board of DirectOrs. All the Subscribers to the Memorandum are Government Officials and it has been declared to be a Government Company. The Memorandum of Articles of Association have been exhibited as Exhibited PAP 210. The affidavit has given the details as to how the State Government retains full control over KBJNL and on going through the said affidavit we have no hesitation to come to the conclusion that the appreh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh as the first defendant and State of Maharashtra as the second, the Original Suit No. 2 of 1997 has been instituted by the State of Andhra Pradesh against the States of Karnataka and Maharashtra. Union of India, however has been impleaded as a party defendant in both the Suits. 112. Before, however, proceeding with the controversies as raised, be it noted that peculiar is the distribution of water resources in the country which cannot but be ascribed to be highly uneven as regards time element. Over 80 to 90 per cent of the run off in Indian rivers occurs in four months of the year and there are regions of harmful abundance and acute scarcity. The country has to deal with several critical issues for quite some time in the matter of water resources of the country. The total water requirement of the country by the year 2050 would be to the tune of 973 to 1180 Km3. Irrigation is the key area for highest water requirement followed by domestic use including drinking power projects and other uses. The Report of the National Commission for Integrated Water Resources Development as prepared by the Ministry of Water Resources, Government of India: (September, 1999) recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive to the situation did incorporate Article 262 providing for adjudication of disputes relating to waters of inter-State Rivers or River Valleys. Significantly, Sub-article 2 of Article 262 by its unequivocal language expressly provides for a total ouster of jurisdiction of courts including the Supreme Court by Parliamentary legislation as regards resolution of such disputes. The subsequent legislation as introduced into the Statute Book, namely, the Inter-State Water Disputes Act 1956 is such a legislation under Article 262 of the Constitution and Section 11 thereof excludes the jurisdiction of the courts including that of the Supreme Court in respect of a water dispute. The true effect of Section 11, however, will be dealt with shortly hereinafter but before so doing, be it noted that whereas Article 262 pertains to ouster of jurisdiction of the Supreme Court, Article 131 relates to conferment of jurisdiction on to the Supreme Court and it is in this context, the effect of Article 262 will also has to be appreciated vis-a-vis Article 131 of the Constitution. 115. Needless to record here that Indian Constitution being federal in form and character, there is existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Krishna river system cannot match with the demands as raised or claims asserted. 119. Incidental, Krishna is the second largest river in India. It rises in the Mahadev range of Western ghats near Mahabaleshwar in Maharashtra and flows through Mysore and Andhra Pradesh obtaining further water accumulation support from various tributaries, rivulets and streams and finally joins the Bay of Bengal. In the run of 186 miles within Maharashtra, the bed fall is 14.06 ft. per mile, the fall up to mile 85 being steeper at the rate of 22.1 ft. per mile. In the run of 300 miles within Mysore, the bed fall is 2.12 ft. per miles and in a run of 358 miles within Andhra Pradesh, the bed fall is 3 ft. per mile. Be it noted that rivers Bhima and Tungabhadra are tributaries of Krishna but they themselves are major inter State rivers. 120. Tracing back the factual backdrop, it also appears that there was, in fact, an agreement between Madras and Mysore as regards sharing of Tungabhadra water above Mallapuram only. This agreement of July, 1944 fixed the share of Madras and Mysore only in the Tungabhadra water and it did not bind the other riparian States. While it is tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power? (6) Has any State any alternative means of satisfying its needs? If so, with what effect? (7) Is the legitimate interest of any State affected or likely to be affected prejudicially by the aggregate utilisation and requirements of any other State? (8) What machinery, if any, should be set up to make available and regulate the allocations of waters, if any, to the States concerned or otherwise to implement the decision of the Tribunal? 122. Incidentally, the Krishna water disputes were investigated by the Tribunal in terms of an order of reference under Section 5(1) of the Inter-State Water Dispute Acts and the Tribunal upon consideration of the matter forwarded its unanimous report and decision under Section 5(2) of the Act to the Government of India on 24th December, 1973. The parties before the Tribunal, however, taking recourse to the provisions of Section 5(3) of the Act of 1956 filed four separate references for clarification before the Tribunal and the Tribunal subsequently upon hearing the respective submissions on 27th May, 1976 prepared its further report incorporating therein clarification sought for under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 695.00 3. State Of Andhra praesh 800.00 Total 2060.00 (b) The determination of the quantity of water which would be added to the 75% dependable flow of the river Krishna up to Vijayawada on account of return flows. (c) In order to give a complete picture, the Tribunal considered it fit and proper to incorporate certain provisions on the subject of apportionment of water of river Krishna between Maharashtra, Mysore and Andhra Pradesh inter alia as under. (a) Clause III of the order relates to the dependable flow and augmentation in the dependable flow due to return flows. (b) Clauses IV and V embody the scheme for apportionment of water of the river Krishna between the three States of Maharashtra, Mysore and Andhra Pradesh. In Clause V it has been stated with regard to the State of Maharashtra and Mysore that each of them shall not use in any water year more than a particular quantity of water specified therein. It is necessarily implied that both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the order of the Tribunal may be reviewed at any time after the 31st May, 2000. This period is considered reasonable by us in view of the fact that during the intervening period there will be increasing demands for water for irrigation and other purposes in the Krishna basin which may have to be examined in the light of the fresh data that may be available. It may be mentioned that the demands of the three States will by that time take much more realistic shape. Further, in view of the stupendous advance in the technology in the matter of conservation of water and its uses and also for other reasons it may become necessary to examine the subject of apportionment of water after the 31st May, 2000. We have, however, provided that the authority or the tribunal which will be reviewing the order of this Tribunal shall not, as far as practicable, disturb any utilisation that may be undertaken by any State within the limits of the allocation made to it by the Tribunal. The Nile Commission of 1925 had recommended a similar provision to the effect that: The Commission foresees that it will be necessary from time to time to review the question discussed in this report. It reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... water of the river Krishna to the three States by percentages to be fixed by the Tribunal. 5. Mass allocation of water of the river Krishna to the three States up to a certain limit providing further that the parties are to share the water in certain percentages to be fixed by the Tribunal in surplus as well as deficit years. 127. Having dealt with the issue and having provided Scheme 'A' for allocation, the Tribunal itself, however, observed that it would be better if we devise two schemes for the division of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Schemes A and B. Scheme A will come in operation on the date of the publication of the decision of this Tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament. It is needless to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htra, Mysore and Andhra Pradesh. Ultimately it is for the parties or for the law made by Parliament to draw up a final scheme and our views are subject to modification in both the cases. 128. Be it noted that the States of Maharashtra and Mysore, however, raised objections in the matter of conferment of powers in Krishna Valley Authority to transfer water from the reservoir of the lower State for various reasons. But the Tribunal had negatived the same with an observation that obviously the Krishna Valley Authority (KVA) will be composed of high ranking engineers who are expected to use their discretion in the matter of transfer of water from one State to another judiciously. In fine, however, the Tribunal concluded by recording that so far as the Scheme B is concerned the question of enforcement of such a Scheme is left with the good sense of the parties or to the wisdom of the Parliament . 129. The good sense , however, has not dawned on to the parties as yet and neither has the wisdom of the Parliament prompted it to legislate on the score and as such, introduction of Scheme B in the matter of resolution of disputes between the lower riparian State an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 being provided for in the Constitution. 132. The issue, however, is slightly different presently, to wit, as to whether the present suit is barred under Article 262 read with Section 11 of the Act of 1956. It is now settled and I need not dilate on this score that the Inter-State Water Disputes Act, 1956 has been enacted on the Statute Book by the Parliament in exercise of the powers conferred by Article 262. Section 11 of the Act of 1956 reads as below: 11. The bar of jurisdiction of Supreme Court and other Courts - Notwithstanding anything contained in any other law neither the Supreme Court nor any other Court and shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act. 133. There is, therefore, a total ouster ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may by law exclude the jurisdiction of any Court including the Supreme Court in respect of any dispute or complaint for the adjudication of which the provision is made in such law. We have also noted that Section 11 of the Inter-State Water Disputes Act makes such a provision. The said Act, as its preamble shows, is an Act to provide for the adjudication of disputes relating to waters of inter-State rivers and river valleys . Clause (c) of Section 2 of the Act defines disputes as follows: 2. In this Act, unless the context 15 otherwise requires,- (a).... (b).... (c) water dispute means any dispute or difference between two or more State Governments with respect to (i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; (ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) the levy of any water rate in contravention of the prohibition contained in Section 7 . Section 3 of the Act states that if it appears to the governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et us, therefore, analyse the prayers in the plaint of O.S. No. 1 and 2 in order to deal with the question of bar of jurisdiction as raised by Mr. Salve Prayers in OS No. 1 of 1997 (State of Karnataka v. State of Andhra Pradesh and Ors.) are set out herein below and they read: (a) decree and declare that the surplus water in the river Krishna i.e. in excess of 2060 TMC at 75% dependability, must be shared in accordance with the determination and directions of the Tribunal, contained in its Report (1973) and further Report (1976). (b) decree and declare that the Defendant No. 1 State of Andhra Pradesh is not entitled to insist on its right to use the surplus water i.e. in excess of 2060 TMC at 75% dependability, so long as Scheme B framed by the Tribunal is not duly and fully implemented by the State. (c) Defendant No. 3 be directed by a permanent order and injunction including mandatory, decree, order and injunction, to notify Scheme B framed by the Tribunal and made provision for establishment of a Krishna Valley Authority and for implementation of the directions of the Tribunal in the Report (1973) and Further Report (1976), as contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of the definition of the words 'water dispute'. 'Water dispute' have been defined under Section 2(c) of the Act of 1956 as below: 2. a b .... (c) water dispute means any dispute or difference between two or more State Governments with respect to (i) the use, distribution or control of the waters of, or in any inter-State river or river valley; or (ii) the interpretation of the terms of any Agreement relating to the use, distribution or control of such waters or the implementation of such Agreement; or (iii) the levy of any water-rate in contravention of the prohibition contained in Section 7. 136. The dispute pertaining to water in order to be subject, however, to Section 11 must relate to use, distribution and control by reason of the definition Section itself, since the same has specifically used the expression use, distribution and control of waters in any river.' In the event, it does not come within the ambit of the expression use, distribution or control,' Section 11 which bars the jurisdiction of all Courts in respect of any water dispute which is otherwise to be referred to the Tribunal would not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138. Turning attention on to the merits of the matter in the issue, be it noticed that at the instance of the parties, there are altogether 34 issues raised in the two subs apart from the preliminary issue of non-maintainability of suits under Article 262 read with Section 11. We appreciate the most learned instructive and lucid submissions that have been made for a number of days on behalf of the parties. But in my view the area of dispute is rather limited and scope restrictive and as such 1 need not set out all the issues raised in the suits above rioted. Though, of course, if I may note that the submissions made on behalf of the parties appearing before us have been most illuminating and instructive, to assess, however, the crux of the matter being one of the basic elements of the judicial approach and it is in this context, I do feel it expedient to record that in O.S. No. 1 of 1997, the only question which needs an answer is as to whether Scheme 'B' as suggested by the Krishna Water Disputes Tribunal be termed to be a decision within the meaning of Section 6 of the Act of 1956. 139. As regards the second suit where the State of Andhra Pradesh ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtual facts the decision of the Tribunal was pronounced in 1973 but by reason of applications in terms of Section 5(3) of the Act of 1956, the Tribunal, published a further report in the year 1976. Be it noted that the decision in terms of Section 5 is required to be published by the Central Government and on such publication in the Official Gazette in terms of Section 6 of the Act of 195 6, the decision of the Tribunal shall stand as final and binding on the parties to the dispute and shall be given effect to by them. The decision of the Tribunal, thus assumes a very significant role in the matter of adjudication of water dispute by the Tribunal. Conceptually -an ideal situation: Constitution Framers in their great thoughtfulness and by reason of divergence of language and custom provided that all Inter-State Water Dispute shall have to be resolved by a decision of the Tribunal set up there for. In the instant case there was in fact such a Tribunal which did go into the issue of allocation of water of river Krishna between the three States as noted above. The decision of the Tribunal has to be implemented and this is a Statutory requirement, therefore, and resultantly the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, authority or jurisdiction whatsoever to constitute Krishna Valley Authority which is ascribed to be the heart of Scheme B . The Tribunal has had to rely upon either the good conscience of the parties or the legislative will of the legislature to have a legislation in that regard. 146. With due deference to the Tribunal again I say that I have not been able to appreciate the need of propounding a 2nd Scheme as Scheme 'B' when the Tribunal itself stated: I. When directing the transfer of water, the Krishna Valley Authority may give appropriate directions regarding the manner in which the water so transferred shall be used by the State, receiving the water. II. If it is found on final accounting at the end of the water year that the water used in the water year by any State is in excess or less than its share under paragraph 2, the said Authority may, subject to the provisions of paragraph 3, take such steps as it deems necessary to adjust the water accounts of the parties by regulating the extent of the use of water to be made by each State in succeeding years, III. The Krishna Valley Authority shall tentatively det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, drew the attention of the Bench to the following statements of the Tribunal in its order: After deeply pondering over the matter we have come to the conclusion that it would be better if we devise two schemes for the division of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Scheme A and B. Scheme A will come in operation on the date of the publication of the decision of this Tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament. Scheme A does not at all depend upon the agreement of the parties and comes into operation by virtue, of the order of the Tribunal. It is altogether independent of Scheme B.... ...In the end so far as the Scheme B is concerned, we leave the question of the enforcement of such a scheme to the goods sense of the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntextual facts as noted above, there is no implement able Scheme B by any stretch neither can the same be termed to be a decision of the Tribunal pertaining to Krishna Valley water dispute between the three States of Maharashtra, Karnataka and Andhra Pradesh. In short, there must be an implement able decision and when the Tribunal itself recorded its non-implementability, issuance of an order of Mandamus on to the Central Government by this Court in exercise of its power under Article 131 does not and cannot arise. 152. Significantly, there has been a further criticism in regard to the prayer for notification of Scheme B by the learned Solicitor General. According to him, the decision of the Tribunal was pronounced in the year 1973 and the further report after Section 5(3) proceeding came in the year 1976 and the Scheme B at best being a recommendation cannot, however, be ascribed to be a decision in the year 1997 and I do find myself in agreement with Mr. Solicitor that a Tribunal cannot exhypothesia pronounce a decision which requires for its implementation, a law to be enacted by Parliament or by consent of the parties, more so by reason of the fact that the Union G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Karnataka communicated early so that appropriate further steps can be taken. 156. By reason of the factum of there being no response from the Karnataka State, further letters were written and eventually on 17th August, 1992, the Secretary to the Government of Karnataka, Irrigation Department addressed a letter to the Secretary to Government of India, Ministry of Water Resources (Ex. P.K. 93) with the following observations: I write to invite reference to the letter cited above and to inform you as follows: - (a) the State of Karnataka is examining, in depth, the subject of establishment of an authority to be called as Krishna Valley Authority for implementing the Scheme B of allocation as formulated by the Krishna Water Disputes Tribunal. (b) The views of Karnataka on this subject will be communicated as soon as a final decision is taken in the matter. I am further directed to request you not to take any decision in the matter, without hearing the views of Karnataka, as this issue will have far reaching implications on the interests of the States in the Krishna Basin. 157. Subsequently, as regards t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Almatti dam under UKP with the proposal of keeping FFL of Almatti Dam at 521 M, and the utilisation under UKP being limited to 177 tmc as per the planning made by the Karnataka State based on the award of the Krishna Water Disputes Tribunal. 159. Shortly thereafter, by a letter dated 20th November, 1995, Shri P.V. Rangayya Naidu, Minister of State of Water Resources, Government of India addressed a letter to Shri H.D. Deve Gowda, Chief Minister of Karnataka recording inter alia the following: The Tribunal had considered a Scheme 'B' which envisaged utilisation of average flow in Krishna River. For implementation of this Scheme it was envisaged to set up a Krishna Valley Authority. It would have ensured fuller utilisation of water of River Krishna. However, the Tribunal did not include Scheme 'B' in its final order. National Water Policy adopted by the National Water Resources Council in September, 1987 laid down that the river basin should be taken as a unit for planning and development of water resources. With a view to operational zing major components of the Policy, a sub-Committee of the Consultative Committee of the Ministry of W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on this score that Mr. Parasaran led very strong emphasis on the correspondence disclosed in the matter whereupon it is evident that Karnataka never wanted to implement Scheme B neither the establishment of Krishna Valley Authority. Even the precautionary advice of the Central Water Commission to the riparian owners did not yield any result and the state of the facts were such that an omission even, in the minutes was seriously pointed out so that no contra expression of opinion would find place on record and the matter was proceeded with that tenor and vigour for all these years. In the year 1997, however, the State of Karnataka thought it prudent to institute the suit for implementation of Scheme B. I do not find it to be very wrong when both Mr. Parasaran and Mr. Andhajuna appearing for the State of Andhra Pradesh and Maharashtra respectively contended that the whole gamut of reasoning for this sudden change needs to be gone in detail and the matters undoubtedly needs a further look. Both the learned Senior Advocates have pressed into service the report of the Tribunal as regards the review of the whole situation in May, 2000 in so far as Scheme 'A' is concerned as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re one of the riparian State would adopt the necessary steps in regard to Constitution of such a Tribunal in due fulfillment of wishes and desires of the earlier Tribunal which it self has recorded a re-look of the whole Scheme in the month of May, 2000. 166. As regards the issue pertaining to the grant of Mandamus against the Central Government to frame a Scheme under Section 6A of the Act and as submitted by Mr. Nariman, be it noted that the Act of 1956 is a compete code in itself and does not create any agency for executing the decision of the Tribunal. The Act is specific enough to provide that the decision of the Tribunal can be enforced by the State by reason of the same being of binding nature as far as the States are concerned and as dealt with more fully hereinbefore the Union Government is not bound in any way. 167. Apropos the issue, however, Mr. Salve's stress was on four counts: on the first count Mr. Solicitor General contended that the decision of the Tribunal, as already stated, does not bind the Central Government. If Section 6A is construed as a power coupled with a duty, it must necessarily follow that upon its pronouncement the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossibly be granted so as to compel an authority to exercise a power which has a substantial element of discretion. In any event the mandamus to exercise a power which is legislative in character cannot be issued and I am in full agreement with the submission of Mr. Solicitor General on this score as well. At best it was only be an issue of good governance but that by itself would not mean and imply that the Union Government has executive power even to force a settlement upon the State. 169. In that view of the matter the Suit being O.S. No. 1 of 1997 though otherwise maintainable but is devoid of any merit and the reliefs prayed for are wholly unwarranted in the contextual facts and as such dismissed without however any order as to costs. 170. As noticed above the principal point of controversy in O.S. No. 2 of 1997 pertains to the height of Almatti Dam. My esteemed Brother Pattanaik, in the main judgment has dealt with the issue in great length and so has Brother Majmudar, in his concurrent judgment. While recording my concurrence with the conclusion reached, I would like to record my own reasonings there for though, however, restricted to very specific i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court easier by reason of the factum of acceptance of the case of the Plaintiff (State of Andhra Pradesh) as regards the implementation of the decision of the Tribunal in its entirety, more so by reason of the fact that the order of the Tribunal itself contain the second Scheme in the form of Scheme B. Quite some time has been spent on this issue and at the first blush the same also seemed to be rather attractive, but on a closer scrutiny of the submission of the parties and more so that of Mr. Ganguly apropos the written statement filed by the State of Karnataka recording its understanding of the case as made out by the Plaintiff the State of Andhra Pradesh, the point as raised can not be sustained at all. For convenience sake, the relevant extracts of the understanding of the State of Karnataka as regards the averments in the Plaint filed by the State of Andhra Pradesh, are set out hereinabove. 3. MAIN CONTENTIONS OF THE STATE OF ANDHRA PRADESH 3.1 State of Andhra Pradesh contends that the entire report and Further Report of the Tribunal should and ought to have been gazetted and if gazetted, it would disclose that Karnataka was restricted to utilise fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between three States as below: 1. State of Maharashtra 125.35 TMC 2. State of Mysore 190.45 TMC 3. State Of Andhra praesh 50.84 TMC The Tribunal in Clarification No. XXI as appears from Exhibit P.K. II recorded the following: In MR Note No. 30, My Note No. 17 and AP Note No. 14, the States of Maharashtra, Karnataka and Andhra Pradesh set forth their revised claims for allocation of water out of the water left after providing for all the protected utilisations. We assessed the needs on the three States after considering their revised demands. We have allowed the demands for Gudavale lift Scheme and Koyna-Krishna Lift Irrigation Scheme of Maharashtra and also for lift irrigation under Malaprabha Project for the reasons given at pages 638-643, 674-675 and 731 -733 of Volume II of the Report. The reasons for not allowing the demand for Bhima Lift I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti Dam being a carryover reservoir does not thus require any further increase in height and thus seems to have some substance having regard to available water. Incidentally, be it noted here that this Court at an early stage of proceeding did direct maintenance of status quo as regards the height of Almatti Dam though, however, permitted construction of the side poles but without placement of any gate so as not to obstruct the flow of water. Facts disclose that the side poles have already been erected and what is required is to place the gate which can be effected admittedly without much loss of time. 176. It is on this perspective that Mr. Ganguly contended that the rights of the parties being adjudicated by the Tribunal having due authorisation of law cannot be interfered with, against the interests of another riparian State and in the event of there being an attempt to do so, this Court in exercise of its jurisdiction under Article 131 of the Constitution ought to grant a mandatory injunction restraining the State of Karnataka from raising the height of Almatti Dam to FRL 524 mt. as against the existing FRL 509 mt. While it is true that the rights of the parties hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c language of Article 131 of the Constitution and having regard to the assertion of the State of Karnataka of its right to control its supply of water in the manner as it deems fit, interference with the proposal shall have to be had to sub-serve the ends of justice. But before proceeding further in this matter, it would be useful to refer to one of the decisions of this Court in the case of State of Karnataka v. Union of India [1978]2SCR1 wherein Bhagwati, J. observed: We cannot construe Article 131 as confined to cases where the dispute relates to the existence or extent of the legal right of the plaintiff, for to do so, would be to read words in the article which are not there. It seems that because the mode of proceeding provided in Part HI of the Supreme Court Rules for bringing a dispute before the Supreme Court under Article 131 is a suit, that we are unconsciously influenced to import the notion of 'cause of action', which is germane in a suit, in the interpretation of Article 131 and to read this article as limited only to cases where some legal right of the plaintiff is infringed and consequently, it has a 'cause of action' against the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the concept of justice being the predominant factor behind the inclusion of such an Article in the Constitution. Ordinary rules or procedure cannot be made applicable in such special circumstances. On the wake of the above and by reason of the decision of this Court to do complete justice between the parties, more so having regard to the powers conferred on to this Court Article 142 of the Constitution, this Court in my view has the power, authority and jurisdiction to pass any order or issue any direction as may be found necessary for the ends of justice and I need not dilate on the same since the law is well settled on that score. It will however be useful to note down certain factual events in this perspective and at this juncture. 180. At the instance of the Prime Minister of India, four Chief Ministers were requested to intervene and consider the proposal of the State of Karnataka to have the Almatti Dam up to the height of FRL 524 mt. The four Chief Ministers in their turn, however, appointed by consent of each other, an expert Committee which has observed that question of the height being raised to FRL 524 mt. at this stage would not arise and as a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the situation as placed by the riparian States and upon assessment of the apprehension of submergence and the apprehension of loss of Kharif crop as well. The Tribunal is directed to look into the matter if and when occasion arises as regards the allocation of water in River Krishna Basin totally uninfluenced by the observations made by the earlier Tribunal' s view by reason of long lapse of time and the availability of modern technology. The suit (O.S. 2 of 1997) stands disposed of accordingly. No order as to costs. (Umesh C. Banerjee, J.) R.P. Sethi, J. 182. While agreeing with the main judgments of brother Pattanaik, J. in Original Suits Nos. 1 and 2 of 1997 and supplementary concurring judgment of brother Majmudar, J. in Original Suit No. 2 of 199 7, 1 am, persuaded to place on record some of my observations in addition, which have been necessitated on account of the unreasonable, unrealistic, motivated and contradictory attitudes adopted and changed from time to time by the riparian States of Krishna river basin, obviously under local pressures and political compulsions. It is hoped and expected from responsible representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an estimate in World Book Encyclopaedia, on an average a person needs about 60, 600 ltrs. of water during his life time and in industrial countries like U.S.A. each person presently is using about 260 litrs. of water every day. The consumption in our country is however much less. On account of the advancement in the technology and of civilization, water needs are increasing. In their quest to have comfortable life, people want more and more water. Facilities like ACs, garbage disposals, automatic washers and modern Bathrooms, earlier considered as luxury are now deemed as necessities of life of a large human population. 185. India is one of the most fortunate countries endowed with enviable wealth of water resources. The average annual precipitation in this country is higher than that of any other continent in the world with the exception of South America. However, on account of meager recourses and lack of developmental facilities, India uses only 1/10th of the precipitation which it receives annually with the result that the rest of water goes waste into the sea. The sources of water in this country are either the frozen snow which melts in summer or accumulated wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Water Disputes Act, 1956 and Rivers Boards Act, 1956. 187. The controversy, in the present proceedings, amongst the States of Maharashtra, Karnataka and Andhra Pradesh is with respect to the utilisation of the water of Krishna River which is the second largest river in the Peninsular India. The river has a total length of 870 miles originating from Western Ghats near Mahabaleshwar and flows through parts of the aforesaid three States. The Krishna River Basin has an area of about one lakh sq. miles which directly affects about 39 million inhabitants of the three States. The water of this river has been the bone of contention between the riparian States for over a period of one and a half century. It was only in 1855 when the Krishna Delta Canal System was commenced to properly regulate the user of water of this river. After re-organisation of the States in November, 1956, the Central Water and Power Commission drew up scheme for re-allocation of Krishna Waters which was not accepted by the concerned States with the result that an Inter-State Conference was held in September, 1960 but as no settlement could be arrived at, the matter was ultimately referred to the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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