2000 Supreme(SC) 849

2000(4) Supreme 39
Supreme Court of India
[Under Article 131 of the Constitution of India]
S.B. Majmudar, G.B. Pattanaik, V.N. Khare,
U.C. Banerjee, R.P. Sethi, JJ.
State of Karnataka —Plaintiff
versus
State of Andhra Pradesh & Ors. —Defendants
Original Suit No. 1 of 1997
With
Original Suit No. 2 of 1997
Decided on 25-4-2000

Headnote:(i) Water Disputes Act, 1956—Sections 6 and 6A—Constitution of India—Article 131—Krishna Water Disputes Tribunal decision—Scheme ‘A’ and Scheme ‘B’—Suit by Karnataka State to notify Scheme contending it to be decision of Tribunal—Held, Tribunal itself staled Scheme B is to be brought into operation in case states, themselves constitute an Inter-state Administrative Authority called Krishna Valley Authority—Tribunal never considered scheme ‘B’ to form part of decision for being implemented—Scheme B framed by Tribunal is not a decision of Tribunal—Cannot be notified under Section 6 and consequently cannot be enforced.

       Held, the tribunal itself made it crystal clear that Scheme "A" will come in operation on the date of publication of the decision of the tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956, and Scheme "B" may be brought into operation in case the States themselves 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. The aforesaid conclusion of the tribunal, unequivocally indicates that it is Scheme "A" alone which has been made the decision of the tribunal and the tribunal nomenclatured the same to be the Final Order, which order in its turn has been notified in the Official Gazette by the Central Government under Section 6 of the Act. At Page 182 of the Report Exh. PK1, the tribunal itself has 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. II and 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. As has been indicated earlier that in course of the proceedings before the Tribunal all the party States, no doubt, have consented to the points of dispute to be resolved by the Tribunal as per Exhibit MRK 340. But the Tribunal itself records the finding that on account of non-agreement between the parties it has not been possible to reach a decision on the principle of allocation agreed to under MRK 340 and, therefore, the Tribunal thought it fit to evolve Scheme ‘A’ which could be implemented on its own, the same being notified under Section 6 of the Act. In terms of the judgment of this Court in Cauvery Water Disputes case, Scheme ‘B’ had not been meant to be implemented and given effect to by the parties to the dispute and as such cannot be a decision of the Tribunal under Section 5(2) of the Act. It can be held to be ‘facts found’ in the report submitted. (Para 12)

       The findings of the Tribunal both in the Original report as well as the further report unequivocally indicate that the Tribunal never considered Scheme ‘B’ to form a part of its decision for being implemented even though there cannot be any doubt about the efficacy of the Scheme in question. A water dispute having arisen between the three riparian States in relation to sharing of water of river Krishna and the said dispute having been referred to the Tribunal for its adjudication and the Tribunal having investigated the matters referred to it and having submitted its report containing the facts found as well as its decision, it is that decision which conclusively decides the dispute referred and is capable of being implemented on its own can be said to be the decision of the Tribunal under Section 5(2). In the case in hand the Tribunal itself being of the opinion that it is unable to implement Scheme ‘B’ by its own order and having apportioned the water of river Krishna as per Scheme ‘A’, the said Scheme ‘B’ cannot be held to be a decision of the Tribunal. (Para 16)

       Every adjudication made by the Tribunal cannot be held to be a decision within the meaning of Section 5(2) unless such adjudication is capable of being implemented on its own and applying the aforesaid test Scheme ‘B’ not being capable of being implemented on its own so long as the back bone of the 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. (Para 17)

       Held further : 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’ that though it cannot be implemented as it was unable to constitute the Monitoring Authority on account of lack of consent between the parties yet it placed on record the said Scheme ‘B’ which according to the Tribunal is a better one for fuller utilisation of water resources of Krishna basin amongst the three States. While placing Scheme ‘B’ in its Report the idea was that the labour of the Tribunal in evolving the Scheme would not be totally lost and that is why it hoped that the parties may agree for constituting an authority or if they fail to agree the Parliament also could make a law but unfortunately, neither of the two contingencies has happened. Though Scheme ‘B’ has been held by us not to be a decision of the Tribunal and as such, is not capable of being implemented by a mandatory injunction from this Court yet we have least hesitation to agree with the findings of the Tribunal itself that said Scheme ‘B’ provides for a fuller and better utilization of the water resources in river Krishna and in future if the question of allocation of river Krishna is gone into by any authority then the said authority will certainly look to the Scheme ‘B’ which had been evolved on the data available then and acceptability of the same will be duly considered. (Para 18)

       (ii) Constitution of India—Article 131 r/w Article 262—Water Disputes Act, 1956—Section 2(c)(i) r/w Section 11—Original jurisdiction of Supreme Court—Suit to notify decision of Water Tribunal—Maintainability of—Suit by Karnataka State of notify Scheme ‘B’ of the Krishna Water Dispute Tribunal—In fact Scheme ‘B’ is not considered as decision by Tribunal and would come to effect when all three States themselves constitute Krishna Valley Authority—Objection by contesting States that suit not maintainable as dispute falls under purview of Water Disputes Act—Held, suit claim was on basis that dispute already adjudicated—Dispute as raised in plaint does not constitute a dispute within meaning of Section 2(c) to attract the bar under Article 262 r/w Section 11 of the Water Disputes Act—Suit maintainable.

       Held : Article 131 of the Constitution subject to the other provisions of the Constitution confers Original Jurisdiction on the Supreme Court over a dispute between the Central Government and one or more States or between two or more States subject to the condition that dispute involves any question whether of law or fact on which the existence or extent of a legal right depends. Article 262(1) of the Constitution authorises the Parliament to make law for adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. Sub-Article 2 of Article 262 also authorises the Parliament to provide by law excluding the jurisdiction of the Supreme Court or any other Court in respect of a dispute or complaint as is referred to in Clause (1). Thus Article 131 being subject to the other provisions of the Constitution including Article 262, if Parliament has made any law for adjudication of any water dispute or a dispute relating to distribution or control of water in any inter-State river or river valley, then such a dispute cannot be raised before the Supreme Court under Article 131, even if the dispute be one between the Centre or the State or between the two States. In exercise of Constitutional power under Article 262(1), the Parliament, in fact has enacted the law called the Inter-State Water Disputes Act, 1956 and Section 11 of the said Act provides that neither the Supreme Court nor any other Court shall have jurisdiction in respect of any water dispute which could be referred to a tribunal under the Act. This being the position, what is necessary to be found out is whether the assertions made in the plaint filed by the State of Karnataka and the relief sought for, by any stretch of imagination can be held to be a water dispute, which could be referred to the tribunal, so as to oust the jurisdiction of the Supreme Court under Article 131. 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 from the Supreme Court to the Union Government to notify the Scheme "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 under Scheme "A", mass allocation in favour of three States being made in respect of the availability of water in the river basin at 75 dependability, under Scheme "B" allocation has been made both in respect of surplus as well as water in the deficit water year and according to the plaintiff, the entire water dispute which had been referred to the tribunal can be said to have been resolved only when Scheme "B" comes into operation. The said Scheme "B" not having been treated as the decision of the tribunal by the Union Government, and therefore, not being notified under Section 6 of the Act, the rights of the State of Karnataka flowing from implementation of said Scheme "B" is being infringed and the State is not in a position to have its future plan for utilisation of any surplus water in the river basin, and therefore, the appropriate authorities should be mandatorily called upon for notifying the said scheme and for constitution of the Monitoring Authority. This being the nature of the assertions made in the plaint and the relief sought for, it is difficult for us to hold that it constitutes a dispute within the meaning of Section 2(c) of the Act, and therefore, the jurisdiction of this Court gets barred under Article 262 read with Section 11 of the Act. In fact, the assertions made in the plaint and the relief sought for can be held to be a claim on the basis of an adjudicated dispute, the enforcement whereof is sought for by filing a suit under Article 131 of the Constitution. Such a suit cannot be held to be barred under Article 262 of the Constitution read with Section 11 of the Act. It is true, we have held while deciding issues 4, 5 and 7 that Scheme " B" evolved by the tribunal is not the decision of the tribunal under Section 5(2) of the Act but such conclusion of ours, would not necessarily lead to the conclusion that the suit itself gets barred under Section 11 of the Act, as contended by the learned Solicitor General. The question whether the jurisdiction of this Court gets barred in view of Section 11 of the Act has to be answered by examining the assertions in the plaint and the relief sought for and by doing so, we are not in a position to hold that the assertions in the plaint together with the relief sought for, constitute a dispute under Section 2(c) of the Act, thereby ousting the jurisdiction of this Court under Section 11. (Para 23)

       (iii) Water Disputes Act—Section 6—Krishna Water Disputes Tribunal—Allocation of water among riparian States of Karnataka, Andhra Pradesh and Maharashtra—Andhra Pradesh State claiming to be entitled to surplus water going ahead with large-scale water projects for utilisation of all surplus water—Held, lowest riparian State, Andhra Pradesh, has been given liberty to utilize surplus water—Liberty does not confer any right beyond allocable share—User of excess/surplus water should not be by way of permanent construction of large-scale projects and water reserviors.

       Held : The question that arises for consideration is whether the liberty granted by the tribunal in favour of the lowest riparian State, namely the State of Andhra Pradesh to use the excess water is unfettered and the State can use the same in any manner it likes, or there should be some restrictions in such use. At the outset, it may be noticed that in the very clause, while giving liberty to State of Andhra Pradesh to use the remaining water, the tribunal itself has hastened to hold – "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." The aforesaid direction of the tribunal itself curtails the so-called liberty granted to the State of Andhra Pradesh but since the tribunal was giving a mass allocation in respect of the three States and unless such liberty is granted in favour of the lowest riparian State, the water would have otherwise entered into the Bay 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 should not be, by way of permanent construction of large-scale projects and water reservoirs, particularly, when the so-called mass allocation under Scheme "A" itself is liable to be reviewed after 31st of May, 2000, which is fast approaching. So long as Scheme "A" is under operation and so long as the two upper riparian States get their share of allocation of water, the lowest riparian State Andhra Pradesh can use the excess water flowing down in the river basin. It is true that while granting such liberty, the tribunal has not indicated as to the manner of its user but the same must be read into the moment the other part of the Order is read namely such user will neither confer a right nor can be deemed to have been allocated in favour of the said lowest riparian State. This being the nature of direction of the tribunal, it is appropriate for the Central Government to exercise the discretion while granting any scheme or project of the lowest riparian state and bearing in mind, what is really meant by the liberty granted, so that the lowest riparian state should not be allowed to proceed ahead with large-scale water projects for utilisation of the surplus water in excess of the allocated quantity over which, the State has no right. It is the Central Government which has to exercise this discretion while clearing projects of the lowest riparian State and it should be so exercised that there should not be any apprehension in the minds of the upper States that for all times to come, their right of sharing the surplus water would in any manner be endangered. (Para 27)

       (iv) Constitution of India—Article 131—Original jurisdiction of Supreme Court—Cause of action—Suit by Karnataka State to implement decision of Krishna Water Dispute Tribunal by notifying Scheme ‘B’ envolved by Tribunal—Defence plea to dismiss suit for want of cause of action on grand Scheme ‘B’ not a decision of Tribunal as implementation of Scheme ‘B’ contingent upon constitution of Krishna Valley Authority—Held, Andhra Pradesh State—Has never agreed to constitution of Krishna Valley Authority which was thought to be back bone of Scheme ‘B’—Plaintiff Karnataka State has cause of action for filing suit. (Para 29)

       (v) Water Disputes Act, 1956—Section 6A r/w Section 6—Constitution of India—Article 131—Decision of Krishna Water Dispute Tribunal—Implementation of Scheme ‘B’ formulated by Tribunal—Prayer to direct Government of India to notify Scheme ‘B’ and make provision for establishment of Krishna Valley Authority as contemplated u/s 6A—Question of direction to constitute Krishna Valley Authority would crop up only if Scheme ‘B’ is decision of Tribunal—Scheme ‘B’ is not a decision of Tribunal—Issue whether exercise of power by Central Govt. u/s 6A is an executive one or is legislative is left open. (Para 31)

       (vi) Constitution of India—Article 131 r/w Article 262—Water Disputes Act, 1956—Section 11—Original jurisdiction of Supreme Court—Suit by State of Andhra Pradesh against other riparian states, Karnataka and Maharashtra—Suit to declare decision rendered by Krishna Water Disputes Tribunal (KWDT) would be binding on all three States and Union of India—Maintainability of—Dispute is regarding execution and implementation of binding award of Water Disputes Tribunal—Suit subject falls outside Article 262—Suit Maintainable.

       S.B. Majmudar J. concurring with G.B. Pattanaik, V.N. Khare, U.C. Banerjee and R.P. Sethi, JJ.

       Held : 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 raised by the plaintiff-State of Andhra Pradesh pertain to the alleged non-implementation of the binding award of the KWDT by defendant No. 1 State. It has nothing to do with raising of a fresh water dispute. According to the plaintiff State, whatever was the earlier water dispute between the plaintiff and the defendant No.1 State or for that matter defendant No. 3 State, was already adjudicated upon by the Tribunal constituted under Section 4 of the Disputes Act and which decision was duly published under Section 6 thereof being their decision pertaining to Scheme "A". The grievance of the plaintiff State is that though the decision is binding on the upper riparian States namely, defendant Nos. 1 and 3, the executive action of the concerned States amount to flouting and violation of the binding decision of the Tribunal. This clearly raises a question of execution and implementation of an already adjudicated water dispute. Once that conclusion is reached, it becomes obvious that Article 262 would be out of picture and only Article 131 will remain operative for being invoked by the disputant State against the defendant States as it woulld certainly raise a dispute regarding execution and implementation of binding award of the Tribunal and, therefore, a contest does arise between two or more States on this score. (Para 44)

       (vii) Water Disputes Act, 1956—Section 6 r/w Section 5(3)—Decision of Water Disputes Tribunal—Is not a decree of a Civil Court.

       Held : The argument 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 cannot be accepted. 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 thereunder 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 negotiations. The Tribunal thus constituted, is required to investigate the matters referred to it and then forward to the Central Government a report setting out the facts as found by him and giving its decision on it as provided under sub-section (2) of Section 5 of the Act. On consideration of such decision of the Tribunal if the Central Government or any State Government is of the opinion that the decision in question requires explanation or that guidance is needed upon any point not originally referred to the Tribunal then within three months from the date of the decision, reference can be made to the Tribunal for further consideration and the said Tribunal then forwards to the Central Government a further report giving such explanation or guidance as it deems fit. Thereby the original decision of the Tribunal is modified to the extent indicated in the further decision as provided under Section 5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties. It is not required that the report containing the arguments or basis for the ultimate decision is also required to be notified so as to make that binding on the parties. This being the position, it is difficult to appreciate the contention of Mr. Ganguli that the decision of the Tribunal as notified, is in fact a decree of a civil suit and that decree has to be understood in the light of the judgment of the suit. We accordingly are not persuaded to accept the submission of Mr. Ganguli on this point but, at the same time we cannot accept the argument of Mr. Nariman that the order of this Court dated 30th September, 1997 passed in the suit in terms of prayer ‘a’ must be held to mean that a decree is to be drawn up in OS 2 of 1997 making the entire report and the further report binding on the parties. When a prayer is made in the plaint the said prayer has to be understood in the light of the assertion of facts on which 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 projectwise allocation contained in the report the said projectwise 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 projectwise 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 question. (Para 78)

       (viii) Code of Civil Procedure, 1908—Order 39—Injunction—Discretionary remedy—Court may not grant an order of injunction, even if all three necessary ingredients ar established.

       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. (Para 79)

       (ix) Constitution of India—Article 131—Water Disputes Act, 1956—Section 6—Suit for mandatory injunction prohibiting State of Karnataka regarding user of water for upper Krishna Project—Allegation Krishna Water Disputes Tribunal allocated water to riparian States of Andhra Pradesh, Karnataka and Maharashtra Project wise and Karnataka State violated terms of decision—Allocation of water by Tribunal was enbloc and not project wise—No fetters on any State in utilising water in any project to a limited extent—No restriction for quantity of user of water in upper Krishna Project by State of Karnataka—No violation of Tribunal decision so long as total user of water does not exceed enbloc allocation—Mandatory injunction could not be granted to prohibit user of water for upper Krishna Project.

       If we examine the Final Order of the tribunal contained in Chapter XVI of the Original Report Exhibit PK1 as well as the modified order after answering the application for clarifications made by different States, in the Further Report of December, 1976 in Chapter VII of Exh. PK2, which has been notified by the Central Government under Section 6 of the Act in the Gazette of India dated 31st of May, 1976, it is crystal clear that the allocation made, has been enbloc and not project-wise and, therefore, there is no 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, Karnataka 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. (Para 79)

       Clause V, no doubt is in a negative form, prohibiting the State of Maharashtra and State of Karnataka from using in any water year more than the water that has been allotted in their favour respectively but by no stretch of imagination, any restriction can be said to have been put on any of the States in the aforesaid 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. (Para 80)

       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 different States but consideration of those projects is only for the purpose of arriving at the quantity of water to be allocated and not for making any project-wise allocation. This unequivocally indicates the purpose for which the projects of different States were being examined and it is explicitly made clear that the States should be entitled to use the waters for irrigation in such manner as they find proper, subject, always to the restrictions and conditions which are placed on them. Unless, therefore, any restriction or conditions in the decision of the tribunal can be found out for utilisation of a specific quantity of water out of the total allocated share in the Upper Krishna Project, there cannot be any fetter on the part of the State of Karnataka to make such user. In the decision of the tribunal, there does not appear to be an iota of restrictions or conditions, which even can be inferred. It is not possible to read any restriction for quantity of user of water in Upper Krishna Project by the State of Karnataka and so long as the total user does not exceed mass allocation, it cannot be said that the decision of the Tribunal is being violated infringing the rights of the State of Andhra Pradesh which can be prohibited by issuing any mandatory injunction. The conclusion is irresistible that under the decision of the Tribunal there has been mass allocation and no project-wise allocation as contended by the State of Andhra Pradesh in the suit. Under the decision of the Tribunal the allocation of water in river Krishna was enbloc and not project-wise excepting those specific projects mentioned in clauses IX and X of the decision. (Paras 81, 82 & 83)

       (x) Water Disputes Act, 1956—Section 6—Constitution of India—Article 131—Decision of Water Tribunal—Krishna Water Dispute Tribunal—Suit for alleging decision of Tribunal violated by State of Karnataka in matter of user of water—Plea that when project of one State is considered by Govt. of India/Appropriate Authority other riparian States should be made aware of and consent should be obtained—Held, no law compels concerned authority to consult all riparian States before sanctioning project of one States. (Para 44)

       (xi) Water Dispute—Interstate river water—Krishna River Water Disputes Tribunal decision allocating water to riparian States of Karnataka, Andhra Pradesh and Maharashtra States—Suit by Andhra Pradesh alleging that Karnataka State violated decision of Tribunal—Prayer to restrain raising height of Almatti Dam from FRL 519.60M to FRL 524.256M—Held, Tribunal did not allocate fixed quantity of water to be utilised for each of projects by States concerned, especially Upper Krishna Project of Karnataka—Issue as to what height Almatti dam should be constituted was not on anvil of scrutiny of Tribunal—Decision of Tribunal not violated by State of Karnataka—Height to FLL 519.60 of Almatti dam would meet present requirement of Karnataka—Construction of dam in one reparian State does not require consent of other riparian State unless such construction likely to affect available water flow of inter-State river as available to it.

       Per S.B. Majmudar, J.

       Held : Nowhere it is held by the Tribunal that out of the total quantity of water, namely, 2096 TMC per water year on the basis of 75 dependability any fixed quota of water for utilising, was earmarked 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, Karnataka 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 any water year nor be deemed to have been allocated in any water year water of the river Krishna of more than 800 TMC up to water year 1982-83 and the additional percentage as provided for subsequent water years. When this final order is read with the Report of the Tribunal comprised of volumes 1 and 2, Exh. PK-I and Exh. PK-II, it is difficult to hold as contended by the plaintiff-State that the Tribunal has awarded fixed quantity of water to be utilised for each of the projects, especially the UKP. This conclusion gets high-lighted, when we turn to clause IX of the final order of the Tribunal pertaining to Scheme "A" wherein out of the water allocated to each of the States certain projects are mentioned for which given quantity of water is allocated. Now in the entire list of projects wherein allotment of water is made project-wise as mentioned in clause IX, UKP is conspicuously absent. It must, therefore, be held that even though the allocation of dependable flow of water per each water year is made for the State of Karnataka with a ceiling as found in clause V of the decision as aforesaid and even while the Tribunal in this connection as referred to UKP the ultimate allotment of total quantity of water has not resulted in indicating any earmarked quantity of water to be stored and utilised in UKP situated in the Krishna river basin within the territorial limits of defendant No. 1 State. It is, therefore, difficult to accept the contention of learned senior counsel for the plaintiff State of Andhra Pradesh that any project-wise allocation of available water is decided upon by the Tribunal while framing Scheme "A", so far as UKP is concerned. Once that conclusion is reached, it becomes obvious that at what height the Almatti dam should be constructed, was not on the anvil of scrutiny of the Tribunal nor was any decision rendered by the Tribunal in that connection which could be made subject matter of the challenge in the present suit of the State of Andhra Pradesh on the ground that any such express direction of the Tribunal in this connection is violated by defendant No. 1 State. (Para 45)

       Even according to defendant No. 1 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. The real grievance of the plaintiff State is of storage and utilisation of additional 11 TMC water at Almatti Dam by raising the height up to 524.256 m. which would result in the irrigation of planned area of 4.13 lakh acres. Under these circumstances, therefore, in our view as at present advised if the height of Almatti Dam is fixed at FRL 519 m. it would meet the requirements not only of the plaintiff State but also meet the present requirement of defendant No. 1 State and also would not fall foul on the opinion of the Expert Committee as well as on the clearance given by the Central Water Commission to Stage II of the UKP Project, as seen earlier. (Paras 57 and 58)

       There is really no dispute between the plaintiff State and defendant No.1 State that construction of Almatti Dam with at least an FRL 519.6 m. will meet the requirement of defendant No.1 State on the one hand and also the grievance of the plaintiff State on the other hand. In other words, construction of Almatti Dam with an FRL of 524.256 may not be feasible or permissible at this stage looking to the allocation of gross quantity of water to Karnataka 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. (Para 59)

       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 Tribunal. The absolute assumption in the issue that State of Karnataka cannot be permitted to proceed with construction of dam without consent of other riparian States, therefore, cannot be accepted and will have to be considered subject to the aforesaid rider. The approval of the Central Government will be required under the federal set up as and when any project is to be constructed in Karnataka State. It has to get clearance from appropriate statutory and executive authorities. It cannot, therefore, be assumed that State of Karnataka would proceed with the construction of such dam without approval of the Central Government. (Paras 60 & 61)

       Per G.B. Pattanaik, J.

       Notwithstanding the allocation of water in river Krishna being made enbloc no State can construct any project for use of water within the State unless such project is approved by the Planning Commission, the Central Water Commission and all other Competent Authorities who might have different roles to play under different specific statutes. Under the federal structure, like ours, the Central Government possesses enormous power and authority and no State can on its own carry on the affairs within its territory, particulary when such projects may have adverse effect on other States, particularly in respect of an inter State river where each riparian State and its inhabitants through which the river flows has its right. From the averments made in the plaint it is crystal clear that the State of Andhra Pradesh feels aggrieved by the proposal of the State of Karnataka to have the Dam height at Almatti FRL 524.256 m. 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 upto 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 524.256m 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 it under Scheme ‘B’ when it comes. It is only on fructification of Scheme ‘B’ the need for a larger storage at Almatti would arise, and therefore, the State is planning ahead to have the height of the Dam at 524.256m. According to the report of the said Expert Committee even if the height is allowed not upto 524.256 m it can be allowed later only when the necessity arises and technically it is feasible. The report also records that for utilisation of 173 TMC at Almatti and Narainpur the height of the Dam required would be 519 m and not 524.256 m. Thus an expert body appointed by the four Chief Ministers of 4 different States who are not in any way connected with the inter-State river Krishna taking into account the present need envisaged by the State of Karnataka for utilisation of 173 TMC at Upper Krishna project and taking into account the report submitted by Indian Institute of Science at Bangalore did record a finding that the top of the shutters at Almatti should be fixed at 519.6 m which will provide a storage of about 173TMC which along with storage of 37.8 TMC at Narainpur will be adequate to take care of annual requirement of 173 TMC envisaged under Upper Krishna Project. In view of our conclusion in O.S. 1 of 1997 holding that Scheme ‘B’ is not a decision of the Tribunal, and as such, cannot be implemented by a mandatory order from this Court and the stand of the State of Karnataka before the so called Expert Committee being that they have designed the height of Almatti Dam at 524.256 m keeping in view that in the event Scheme ‘B’ fructifies the State will be able to get the surplus water and store it as a carry over reservoir, as observed by the Tribunal itself, notwithstanding the fact that the plaintiff has failed to establish a case on its own for getting the relief of injunction in relation to the construction of Almatti Dam by the State of Karnataka, it would be reasonable to hold that though the State can have the Dam at Almatti but the height of the said Dam should not be more than 519.6 m, particularly when the State of Karnataka has not been able to indicate as what is the necessity of having a height of Dam at 524.256 m when Scheme ‘B’ is not going to be operated upon immediately. The Upper Krishna Project Stage II, detailed project report of October 1993 which has been exhibited in the present 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 upto 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 Almatti of 524.256 m. We hasten to add that at the same time there cannot be any injunction or prohibition to the said State of Karnataka for having the Dam height at Almatti upto 519.6m which would be in the interest of all concerned. (Para 86)

       The Central Government as well as the appropriate authority have not sanctioned the Upper Krishna Project Stage-II with the dam height at 524.256 meters. It would not be possible for this Court to pronounce that there will be a violation of the mass allocation if the State of Karnataka is allowed to have the dam height at Almatti at 524.256 meters, though as stated earlier, according to the State of Karnataka itself for utilisation of 173 TMC, the required dam height is 519.6 meters. It is under these circumstances, we are of the considered opinion that there should not be any bar against the State of Karnataka to construct the dam at Almatti upto the height of 519.6 meters and the question of further raising its height to 524.256 meters should be gone into by the tribunal, which learned Solicitor General agreed on behalf of Govt. of India to be constituted immediately after the delivery of judgment of these two suits, so as to mitigate the grievance of each of the riparian States on a complaint being made by any of the States. 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. (Para 87)

       It is not possible for the Court to grant the relief of permanent mandatory injunction, so far as construction of the Dam at Almatti is concerned as well as the reliefs sought for in paragraphs (b) to (k). But at the same time, we make it clear that there is no bar for raising the height of the Dam at Almatti upto 519.6 meters subject to getting clearance from the Appropriate Authority of the Central Government and any other Statutory Authority, required under law. The question of raising the height upto 524.256 meters at Almatti could be appropriately gone into by a Tribunal, to be appointed by the Central Government, on being approached by any of the three riparian States and such Tribunal could also go into the question of apprehension of submergence within the territory of the State of Maharashtra and give its decision thereon, in the event the height of the Dam at Almatti is allowed to be raised upto 524.256 meters. The Tribunal would also be entitled to go into the question of reallocation of the water in river Krishna basin, if new datas are produced by the States on the basis of improved method of gazing. (Para 107)

       (xii) Constitution of India—Article 131 r/w Article 262—Water Disputes Act, 1956—Sections 2(c)(i) and 11—Water dispute—Meaning of—Bar of suit—Scope of original jurisdiction of Supreme court—Inter-state river riparian States of Andhra Pradesh, Karnataka and Maharashtra—Water Dispute Tribunal’s decision allocating water to each State—Andhra Pradesh State filing suit alleging Karnataka State violated decision of Tribunal since it is proposing to raise heigh of Almatti dam—Maharashtra State alleging raising of height of Almatti Dam would submerg its territory—Dispute clearly fall within definition of ‘water dispute’ as found in Section 2(c)(i) since dispute was not subject matter of Tribunal earlier and not adjudication by Tribunal—Dispute cannot be adjudicated by Supreme Court under Article 131—Maharashtra State relegated to file complaint u/s of Water Dispute Act.

       Per S.B. Majmudar, J.

       Held : 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 effect 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(c) 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 villages of Maharashtra State, which is an upper riparian State, by back-effect, it would clearly fall within the definition of ‘water dispute’ as found in Section 2(c)(i). That would immediately attract Section 3 (a) (Para 64)

       The Maharashtra State, namely, defendant No. 3, apprehends that because of the executive action of Defendant No. 1 State contemplating raising of height of Almatti Dam at 524.256 M, the defendant No. 3 State or its inhabitants are likely to be prejudiced by submergence of its villages and the lands occupied by residents therein. Thus on a conjoint reading of Section 2(c)(i) and Section 3(a) of the Disputes Act such a grievance voiced by defendant No. 3 State against defendant No. 1 would consequently fall within the fore-corners of the Disputes Act enacted by the Legislature under Article 262. Once that conclusion is reached the result becomes obvious This type of grievance and dispute cannot be adjudicated upon by us under Article 131 and it is for the Maharashtra State if so advised to raise such a dispute which earlier it did not raise, by filing an appropriate complaint under Section 3 of the Disputes Act before the Central Government and once that happens Section 4 of the Act would be automatically attracted. 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. It is, of course, true that though the defendant No. 3 State considered the question of submergence as a part of ‘water dispute’ to be resolved by the Tribunal, the Tribunal did not consider the question of submergence of villages in the territory of defendant No. 3 State because of the height of Almatti Dam. It has, therefore, remained a simmering dispute between the defendant No. 3 State and defendant No. 1. It, therefore, requires to be adjudicated upon by a competent Tribunal as noted earlier. It is axiomatic that crucial question for determination under Section 3 of the Disputes Act is whether the interest of the State of Maharashtra or of any of its inhabitants in Krishna river valley will be prejudiced by the executive action of another riparian State, like the Defendant No. 1. The State is one integral unit and its interest includes the well-being of its inhabitants within its territory including areas outside the river basin. Therefore, under the Inter-State Water Disputes Act, 1956 the relevant consideration is the interest of the State as a whole and all its inhabitants and not merely the interest of the basin areas of the State. Consequently, it must be held that the dispute regarding the apprehended submergence of villages of Maharashtra State by raising of the height of Almatti Dam by State of Karnataka beyond 519 m. is an unresolved water dispute which cannot be considered by us under Article 131 and we have to relegate respondent no. 3 State to filing of an appropriate complaint under Section 3 of the Disputes Act before the Central Government, if so advised, if in the mean time no amicable agreement or settlement of the dispute inter-se between defendant No. 3 State and defendant No. 1 State is arrived at. (Para 64)

       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. (Para 65)

       Per G.B. Pattanaik, J.

       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 State, then such a grievance would be a fresh dispute within the meaning of Section 2(C) read with Section 3 of the Act and it cannot be held to be an adjudicated dispute of the tribunal. It is only an adjudicated dispute between the States on which a decision has been given by a tribunal constituted under Section 4 of the Act by the Government of India, can be a subject matter of a suit under Article 131, if there is any breach in implementation of the said decision of the tribunal. But a dispute between the two states in relation to the said Inter-State river arising out of the user of the water by one State would be a fresh water dispute and as such would be barred under Article 262 read with Section 11 of the Inter-State Water Disputes Act, 1956. The question of submergence of land pursuant to the user of water in respect of an Inter-State river allocated in favour of a particular State is inextricably connected with the allocation of water itself and the present grievance of the State of Maharashtra would be a complaint on account of an executive action of the State of Karnataka within the meaning of Section 3(A) and also would be a water dispute within the ambit of Section 2(C) and, therefore, it would not be appropriate for this Court to entertain and examine and answer the same. We do appreciate the concern of the State of Maharashtra, when it comes to its knowledge that there would be large-scale inundation and submergence of its territory if the height of Almatti Dam is allowed to be raised to 524.256 meters, as per the latest Project Report of the State of Karnataka, but such concern of the State of Maharashtra alone would not be sufficient for this Court to decide the matter and issue any order of injunction as prayed for in the additional written statement filed by the State of Maharashtra and on the other hand, it would be a matter for being agitated upon before a tribunal to be constituted by the Govt. of India in the event, a complaint is made to that effect by the State of Maharashtra. We also do not find sufficient materials in this proceeding before us to enable this Court to come to a positive conclusion as to what would be the effect on the question of submergence, if the height of the dam at Almatti is allowed to be constructed up to 524.256 meters inasmuch as, according to the State of Maharashtra, the joint surveys are still on. It is too well settled that no Court can issue an order of mandatory injunction on mere apprehension without positive datas 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, yet the State of Maharashtra never thought of the question of submergence and never attempted to get that question decided upon. In the aforesaid premises, howsoever wide the power of the Court under Article 142 of the Constitution may be, we do not think it proper to entertain the question of submergence, raised by the State of Maharashtra in its additional written statement and decide the question of injunction, in relation to the height of Almatti Dam on that basis. (Para 93)