2018 Supreme(SC) 146

SUPREME COURT OF INDIA
Dipak Misra, CJI., Amitava Roy, A.M. Khanwilkar, JJ.
The State of Karnataka by its Chief Secretary – Appellant
Versus
State of Tamil Nadu by its Chief Secretary & Ors. – Respondents
Civil Appeal No. 2453 of 2007
With
State of Kerala through the Chief Secretary to Government – Appellant
Versus
State of Tamil Nadu through the Chief Secretary to Government and others – Respondents
Civil Appeal No. 2454 of 2007
State of Tamil Nadu through the Secretary Public Works Department – Appellants
Versus
State of Karnataka by its Chief Secretary Government of Karnataka & Ors. – Respondents
Civil Appeal No. 2456 of 2007
Decided On : 16-02-2018

IMPORTANT POINTS
The two agreements of 1892 and 1924 had neither any political arrangement nor touched any facet of sovereignty of India. The agreements cover the areas of larger public interest and hence are neither inoperative nor completely extinct.
The issues in this case have no connection, whatsoever, with the concepts of sovereignty and integrity of India and, therefore, the bar under Article 363 of the Constitution of India is not attracted.
The said agreements cannot be said to be unconscionable.
The 1924 Agreement was never intended to be of permanent character. It contemplated a fixed term of 50 years after which it expired in the year 1974.
The matter deserved to be adjudicated on the bedrock of equal status of the states and doctrine of equitability.
Waters of an inter-state river constitute a national asset and no single State can claim exclusive ownership of its water.
The framing of the scheme u/s 6A is exclusively meant for implementation of the award or as the same gets modified by this Court.

Headnote:Per Dipak Misra, J.

       (a) Constitution of India – Article 141 – Order passed by Supreme Court – Prayer for modification – Agitation in spontaneity or propelled by some motivation or galvanized by any kind of catalystic component – Cannot form foundation for seeking modification of an order – Order bund to be complied with by all concerned – All citizens duty bound to obey orders of Supreme Court. (Para 11)

       (b) Constitution of India – Article 136 r/w section 6(2), Inter-State Water Disputes Act, 1956 – Section 6(2) does not create any kind of embargo on the jurisdiction of this Court. (Para 18)

       (2017) 3 SCC 362 – Referred

       © Inter-State Water Disputes Act, 1956 – Section 5 – Reference of river water dispute by Central Government to the Tribunal – Covers any interim order prayed for. (Para 28)

       1991 Supp (1) SCC 240 – Relied upon

       (d) River Water Dispute – Agreement between State of Tamil Nadu (then Madras) and State of Mysore (now Karnataka) in 1892 and 1924 – Agreements covering areas of larger public interest like construction of dams and irrigation of land – Not indicating any political aspect or any facet of sovereignty of India – Held, agreements did not become inoperative and totally extinct after coming into force of Act, 1947 and thereafter the Constitution of India – Section 7, Indian Independence Act, 1947 – Section 177, Government of India act, 1935. (Para 68, 84)

       (2014) 12 SCC 696; (2006) 3 SCC 643; (1955) 1 SCR 415 : AIR 1954 SC 447 – Relied upon

       (1905) 33 IA 1 : (1906) ILR 33 Cal 219; (1971) 1 SCC 85 – Referred

       1950 SCR 573 : AIR 1950 SC 155 – Distinguished

       (e) Constitution of India – Article 363 – Dispute regarding and agreement on sharing river water – Taking into consideration agreements of 1892 and 1924 – Not barred under Article 363, agreements not being political in nature. (Para 104)

       1951 SCR 474 : AIR 1951 SC 253; 1993 (Supp) (1) SCC 96; (1971) 1 SCC 85; (2006) 3 SCC 643 – Relied upon

       (1963) Supp. (2) SCR 515 : AIR 1963 SC 953 – Referred

       (f) Administration of law – Unconscionability – Agreements of 1892 and 1924 – State of Karnataka not denouncing the agreements at any point of time – Even after coming into force of Indian Independence Act, 1947 or Constitution of India – Held, agreements cannot be declared as void because of unconscionability – Sections 16, 23 and 24, Contract Act. (Para 119)

       (1981) 1 SCC 537; (1986) 3 SCC 156; (1986) 4 SCC 337; 1991 Supp. (1) SCC 600; (2013) 8 SCC 345; AIR 1985 SC 722 – Referred

       (g) Inter-State river water dispute – Karnataka and Tamil Nadu – Cauvery water dispute – Agreement of 1892 and 1924 – Reorganization of State of Mysore – Sections 87, 107, 108 and 119, Reorganization Act, 1956 – Continuance of assets and liabilities – State of Mysore, after 1956, recognizing and enforcing the agreements – Not repudiating – Moreover, the Act not containing any provision regarding water dispute – Article 295(2), Constitution of India – No newly formed State after Reorganisation controverting the agreements – Held, both the agreements with the Regulations remained in force despite coming into effect of the Reorganisation Act, 1956. (Para 127, 133)

       AIR 1958 SC 816; AIR 1964 SC 1658; AIR 1967 SC 40; (1976) 3 SCC 242; 2017 (7) SCLAE 234; 1964 (6) SCR 846; 1964 (6) SCR 846; (1976) 3 SCC 242; (1987) 2 SCC 439 – Referred

       (h) Interpretation – Contract – Cauvery water agreement 1924 – Not indicating permanency but fixed term – Continuance after 50 years dependent upon certain aspects – Held, agreement lapsed after 50 years in 1974. (Para 147)

       1993 (Supp) (1) SCC 96 – Referred

       (i) Inter-State Water Disputes Act, 1956 – Section 2© and 3 – Contesting States governed by parens patriae principle – Water dispute – Has to be adjudged on doctrine of equitability – All States have equal status. (Para 165)

       259 US 419 (1922); 325 US 589 (1945); 206 US 46 (1906); 320 US 383 (1943); 283 US 336 (1931); 282 US 660 (1931); 459 US 176 (1982) – Referred

       (j) River water dispute – Water of inter-state rivers – National asset – Being in a state of flow, not located in any one state – Riparian rights – Allocation of water – Basis – Equitable share – Helsinki Rules. (Para 363, 371)

       1993 (Supp) (1) SCC 96 – Relied upon

       (k) national perspective – Primacy to drinking water – Ground water use – Regulated – Transfer of water to water deficit states from other river/ river basins – Supplementing and consolidating prescriptions of Helsinki Rules – National policies held efficient, rational, objective and pragmatic guidelines for determining reasonable and equitable share of basin States in the water of an inter-state river like Cauvery as instantly. (Para 375, 376, 377)

       (l) National Water Policies, 1987 and 2002 – Tribunal allocating 250.62 TMC to Karnataka for its irrigated area of 18.85 lakh acres and 390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh acres – 30 TMC for Kerala – 6.35 TMC for 43000 acres in Puducherry for irrigation – Approved – However owing to severe drought conditions in 28 districts of Karnataka and its limited access to Cauvery water 14.75 TMC deducted form share of Tamil Nadu as allocated by Tribunal and added to Karnataka – Conjunctive use of ground water – Tribunal allocating 1.75 TMC for drinking and domestic water requirement of Karnataka – Held inadequate – Raised to 6.5 TMC – Tribunal assigning 10 TMC to be reserved from the common pool to meet environmental aspects – Endeavour appreciated – Court finally allocating 284.75 TMC to Karnataka, 404,25 TMC to Tamil Nadu, 30 TMC to Kerala, 7 TMC to Puducherry, 10 TMC for environmental protection and 4 TMC towards inevitable escapagaes into sea. (Para 382, 384, 385, 387, 392, 395)

       (m) Section 6A – Award of Tribunal – Has to be treated as decree of Supreme Court u/s 6(2) – Held formulation of scheme u/s 6A exclusively for implementing award of Tribunal – Need based monthly release as awarded by Tribunal has to be respected – Grant of extension for framing scheme ruled out. (Para 403)

       Facts of the case:

       In this batch of Appeals, the assail is to the award dated 05.02.2007 passed by the Cauvery Water Disputes Tribunal (for brevity, “the Tribunal”) constituted under Section 3 of the Inter-State Water Disputes Act, 1956 (for brevity, “the 1956 Act”) by three States, namely, Karnataka, Tamil Nadu and Kerala as each of them is aggrieved by the allocation and sharing of water of river Cauvery according to individual perception, perspective and understanding. It is worthy to mention here that there are two principal States, namely, State of Karnataka and State of Tamil Nadu who as adversaries take the centre stage. The other two, State of Kerala and Union Territory of Pondicherry (presently named as “Puducherry”) in their own way, attacked the award and also seriously criticized the stand and stance of the main protagonists because of their dominant, assertive and adamant attitude by which they not only feel neglected and discriminated but have also been compelled to harbour the idea that two of them have created impediment in their rightful due concerning the release of water.

       Finding of the Court:

       No interference is warranted in award of the Tribunal on many issues.

       Result: Civil Appeal No. 2453 of 2007 filed by the State of Karnataka partly allowed and all others Appeals disposed of.