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2000 Supreme(SC) 854

SUPREME COURT OF INDIA
G.B.Pattanaik : R.P.Sethi : S.B.Majmudar : U.C.Banerjee : V.N.Khare
State Of A.P.
Versus
State Of Karnataka
Case No. : 2 of 1997
Date of Decision : 4/25/00
Advocates Appeared: Andhyarujina T.R. : Bhalla Shalini : Birla Subrat : Desai Ashok H. : Dwivedi S.K. : Ganguli A.K. : Goswamy N.N. : Hegde Sanjay R. : Jain S.C. : Javali S.S. : Jayaram A.N. : Kataria Mohan V. : Kumar Poonam : Kumar Vineet : Mehta Dhruv : Nagaraja K.R. : Narayan A.Ram : Nargolkar : Nargolkar D.M. : Nariman F.S. : Nayar Nikhil : Parasaran K. : Prabhakar G. : Prasad B.Krishna : Quadri A. : Raghuram G. : Ramana N.V. : Rao C.V.Subba : Rawal K.N. : Salve Harish N. : Sharma A.K. : Sharma Rajeev : Sharma Subhash : Singh S.P. : Singh Shambhu Prasad : Sorabjee Soli J. : Suri Sushma : Tripathi Parag P. : Trivedi R.N. : Tyagi K.K. : Umapathy G. : Usgaocar M.S. : Verma R.N. : Vijayashankar S. : Wasim S.

Important Points

A Tribunal's decision under the Inter-State Water Disputes Act must be independently implementable to be binding. Enbloc water allocation permits states flexibility in project design provided total limits are not exceeded. Submergence disputes are fresh water disputes requiring adjudication by a statutory Tribunal, not the Supreme Court.

Subject

Constitutional Law - Inter-State Water Disputes

Act Referred

Headnote

(A) Constitution of India - Articles 131, 262; Inter-State Water Disputes Act, 1956 - Sections 2(c), 3, 4, 5, 6, 6A, 11 - Inter-State water disputes - Jurisdiction of the court and nature of Tribunal decisions - The jurisdiction of the court under Article 131 is subject to Article 262. Where Parliament has enacted law for the adjudication of water disputes and excluded the jurisdiction of courts, such disputes cannot be entertained under Article 131. However, a suit for the implementation of an already adjudicated award does not constitute a fresh water dispute and is not barred under Section 11 of the Act. (Paras 3, 51-54)

(B) Inter-State Water Disputes Act, 1956 - Definition of "decision" - For a scheme to be considered a "decision" under Section 5(2) of the Act, it must be one that conclusively decides the matter and is capable of being implemented on its own. A scheme that is contingent upon the subsequent agreement of the party states or the enactment of legislation by Parliament to create an administrative authority is not a "decision" and is not binding unless it is specifically notified under Section 6. (Paras 47, 48, 106)

(C) Allocation of Water - Enbloc vs Project-wise allocation - Where a Tribunal provides for mass allocation (enbloc) of water to states, such allocation does not imply project-wise restrictions. States are entitled to utilize the allocated quantity in any manner they find proper within their boundaries, provided the total usage does not exceed the specified limit and does not violate express restrictions. Project-wise assessments used by the Tribunal to determine total needs do not override the final enbloc allocation notified in the Official Gazette. (Paras 156-159)

(D) Submergence of Territory - Dispute regarding the potential submergence of one state's territory due to the executive action of another state in constructing a dam constitutes a "water dispute" under Section 2(c) of the Act. Such grievances must be addressed through a complaint to the central government for the constitution of a Tribunal under Section 3 and cannot be adjudicated under the original jurisdiction of the court under Article 131. (Paras 23, 168-169)

Facts of the case:
Two riparian states filed suits under Article 131 of the Constitution regarding the use and sharing of an inter-state river. One state sought the mandatory notification and implementation of a surplus water sharing scheme and the creation of a monitoring authority based on a Tribunal's report. The other state sought an injunction to prevent the first state from raising the height of a dam beyond a certain level, alleging that such an increase would violate the Tribunal's decision by enabling water utilization beyond the allocated share and adversely affecting downstream flows.

Findings of Court:
The court found that the surplus water sharing scheme was not a binding "decision" as it was not independently implementable without a monitoring authority. It was further held that the Tribunal's allocation of water was enbloc, meaning the state could design its projects as long as the total water used remained within the prescribed limit. Regarding the dam height, while not a direct violation of the award, the court restricted the height to 519.6m based on expert committee reports to balance the needs of all riparian states. Claims regarding the submergence of another state's territory were categorized as fresh water disputes.

Issues: 1. Whether the suit is barred by Article 262(2) of the Constitution read with Section 11 of the Inter-State Water Disputes Act. 2. Whether a proposed surplus sharing scheme, dependent on the creation of an authority, constitutes a "decision" of the Tribunal. 3. Whether the allocation of water by the Tribunal was project-wise or enbloc. 4. Whether the height of a dam can be restricted to protect the interests of other riparian states.

Ratio Decidendi: A "decision" under the Water Disputes Act must be implementable independently. Enbloc allocation provides states with flexibility in project design as long as total usage limits are respected. Disputes concerning executive actions that cause territorial submergence are statutory water disputes requiring adjudication by a specialized Tribunal rather than the court's original jurisdiction.

Result: Suit for implementation of the surplus scheme dismissed; suit for injunction on dam height partially allowed, restricting the height to 519.6m subject to statutory clearances.

Legal Category Hierarchy

  • constitutional law
    • original jurisdiction of supreme court
      • dispute between states
        • article 131 (Para 2, 52, 92)
      • ouster of jurisdiction
        • article 262 (Para 3, 54, 88)
    • federal structure (Para 52, 168)
  • inter-state water disputes act
    • tribunal
      • decision under section 5(2) (Para 43, 47, 48)
      • publication under section 6 (Para 106, 154)
      • scheme under section 6a (Para 62, 124)
    • water dispute definition (Para 3, 91)
    • bar of jurisdiction section 11 (Para 3, 88)
  • property and environment
    • water rights
      • allocation of river water
        • en bloc allocation (Para 155, 158)
      • use distribution and control (Para 2, 3)
    • environmental clearance (Para 175)
  • practice and procedure
    • suit under article 131
      • maintainability (Para 51, 54, 92)
      • pleadings and cause of action (Para 52, 164)
    • injunction
      • mandatory injunction (Para 132, 155)

Table of Contents

1. Dispute between riparian states regarding use, distribution and control of Krishna river waters under Inter-State Water Disputes Act, 1956. (Para 1 , 3 , 33 , 67 , 146 )

2. Dispute over whether allocation is project-wise or en bloc, and validity of Almatti Dam height under Tribunal's decision. (Para 3 , 33 , 41 , 42 , 43 , 147 )

3. Scheme A's allocation is en bloc; Scheme B is not a binding decision; Almatti Dam at 519.6 m is adequate. (Para 48 , 50 , 100 , 156 , 158 )

4. Only an implementable adjudication capable of independent operation is a Tribunal's decision under Section 5(2) of the Act. (Para 43 , 47 , 48 )

5. Suit dismissed; Karnataka may raise Almatti Dam to 519.6 m subject to clearances; further height left for new Tribunal. (Para 31 , 64 , 65 , 183 , 184 )

6. What constitutes a binding 'decision' of a Water Disputes Tribunal under Section 5(2) of the Inter-State Water Disputes Act?

Only that adjudication which can be implemented independently of any agreement or legislation, and which conclusively decides the referred dispute, is a binding decision. (Para 43 , 45 , 47 , 48 )

7. Does a suit under Article 131 of the Constitution lie for implementation of a Tribunal's decision on water disputes?

Yes, a suit for implementation of an adjudicated decision is maintainable and is not barred under Article 262 read with Section 11 of the Act. (Para 54 , 92 )

8. Is the allocation of water under Scheme A of the KWDT award project-wise or en bloc?

The allocation is en bloc, not project-wise, as per Clause V of the final order; there is no restriction on use in any particular sub-basin. (Para 155 , 158 )

9. Can the Central Government be directed by mandamus to frame a scheme under Section 6A of the Act?

No, as the power under Section 6A is legislative in character and is not a power coupled with a duty enforceable by mandamus. (Para 62 , 107 , 124 )

10. Does a suit under Article 131 require the plaintiff to prove infringement of its own legal right?

No, Article 131 only requires that the dispute involve a question on which the existence or extent of a legal right depends, irrespective of which party claims it. (Para 134 , 164 )

JUDGMENT

S.B.MAJMUDAR, J.

(1) 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 :

(2) HAS this Honble 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 the existence or extent of a legal right depends: xxx xxx xxx

(3) WE are not concerned with the Proviso which deals with treaties and agreements entered into or executed before the commencement of the Constitution. As Article 131 itself is subject to the other provisions of the Constitution, we have to turn to Article 262 which deals with disputes relating to waters. Sub-article (1) thereof provides that: "262. Adjudication of disputes relating to waters of inter-State rivers or river valleys - (1) Parliament may by law provide for the 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) thereof lays down that: "(2) NotwiTHStanding anything in this Constitution, Parliament may by law provide that neither the Supreme COURt nor any other COURt shall exercise Jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)". It is not in dispute between the parties that the Inter-State Water Disputes Act, 1956 (hereinafter referred to as the Disputes Act) is a legislation passed under Article 262 of the Constitution. It is equally not in dispute that Section 11 thereof excludes the jurisdiction of this COURt in respect of water disputes referred to the Tribunal. It will therefore, have to be seen whether the State of Andhra Pradesh, as plaintiff, having invoked the jurisdiction of this COURt under Article 131 has, in substance, raised water dispute which will exclude the jurisdiction of this COURt as per Section 11 of the Disputes Act read with Article 262 Sub-article (2). In other words, if in substance, the plaintiff wants adjudication of any water dispute between it and the other contesting States, namely, the State of Karnataka or the State OF MAHARASTRA which are upper riparian States located in the Krishna basin through which the river Krishna, which is admittedly an inter-State river, flows. The expression water dispute has been defined by the Disputes Act as per Section 2(c) as under: "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." 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 co






















































































































































































































































































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