1. Inter-State river water sharing dispute — implementation of Tribunal schemes — construction of dam height — suit under Article 131 of the Constitution. (Para 1 , 2 , 3 , 67 , 68 , 69 )
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2000 Supreme(SC) 2111
SUPREME COURT 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 A.P. and Others – Defendants
Original Suits Nos. 1, 2 of 1997
Decided On : 25-04-2000
A Tribunal's proposal requiring external agreement or legislation for implementation is not a "decision" under the Inter-State Water Disputes Act. Suits for implementing an adjudicated award are maintainable under Article 131 of the Constitution, as they do not constitute fresh "water disputes."
Headnote:(A) Constitution of India - Articles 131 and 262; Inter-State Water Disputes Act, 1956 - Sections 2(c), 3, 4, 5, 6, 6-A and 11 - Adjudication of inter-State river water sharing - A proposal or scheme evolved by a Tribunal that is not capable of being implemented on its own, and is contingent upon the subsequent agreement of parties or legislation by Parliament to establish a monitoring authority, does not constitute a "decision" within the meaning of Section 5(2) and Section 6 of the Act. Such a scheme may be categorized as "facts found" in the report but is not binding unless notified as a decision. (Paras 12, 16, 17)
(B) Jurisdiction of Supreme Court - Article 131 vs. Article 262 - A suit filed for the implementation of an already adjudicated award of a Tribunal is not a "water dispute" as defined under Section 2(c) of the Act. Therefore, such a suit is not barred by Section 11 of the Act read with Article 262(2) of the Constitution, as it seeks the enforcement of a legal right arising from an adjudicated dispute rather than the adjudication of a fresh dispute. (Paras 24, 38)
(C) Riparian Rights - Liberty granted to the lowest riparian state to use surplus water does not confer any permanent right or allocation. Such liberty must be exercised without constructing large-scale permanent projects or reservoirs that could endanger the rights of upper riparian states, especially when the allocation is subject to future review. (Paras 28, 52)
(D) Water Allocation - Where a Tribunal provides mass allocation (en bloc) to states, it does not imply project-wise allocation unless specifically restricted in the final order. States are generally entitled to use their allocated share in any manner they find proper within their boundaries, subject to the overall ceiling and specific restrictions mentioned in the award. (Paras 80, 81)
Facts of the case:
Three riparian states disputed the sharing of an inter-State river. A Tribunal evolved two schemes: Scheme A for mass allocation based on dependable flow, and Scheme B for percentage-based sharing of surplus and deficit flows. Scheme A was notified and became binding. Scheme B required the establishment of a monitoring authority, which the states failed to agree upon. One state sought a decree for the implementation of Scheme B and an injunction against another state's large-scale projects. Another state sought to restrict the height of a dam constructed by an upper riparian state, alleging it would lead to excessive water utilization and submergence of its territory.
Findings of Court:
Scheme B is not a binding decision as it was not implementable independently. The allocation of water under the award was en bloc and not project-wise. The height of the dam in question is permissible up to 519m, as this level meets the current requirements without causing real dispute, but raising it to 524.256m is not permitted without consent and further adjudication. Grievances regarding submergence are fresh water disputes and must be referred to a Tribunal.
Issues: Whether the suits are barred by Article 262 and Section 11 of the Act; whether a non-implementable scheme constitutes a "decision" of the Tribunal; whether water allocation was project-wise or en bloc; and the permissible height of the dam.
Ratio Decidendi: A proposal by a Tribunal that requires external agreement or legislation to be operational is not a "decision" under the Act. Suits for the enforcement of a notified award are maintainable under Article 131. The lowest riparian state's right to surplus water is a liberty, not a vested right, and cannot be used to justify permanent large-scale infrastructure that prejudices other riparian states.
Result: Suits dismissed/disposed of; dam height restricted to 519m subject to statutory clearances.
Legal Category Hierarchy
- constitutional law
- administrative law
- statutory law
- environmental law
Table of Contents
2. Implementation of non-notified scheme vs. binding nature of notified mass allocation — project-wise vs. en bloc allocation — maintainability under Article 131 vs. Article 262. (Para 8 , 9 , 10 , 11 , 20 , 21 , 70 , 71 , 72 , 73 )
3. Scheme 'B' was not an implementable decision — allocation was en bloc, not project-wise — dam height restricted based on expert reports and lack of notified rights. (Para 12 , 14 , 15 , 16 , 17 , 24 , 28 , 52 , 53 , 58 , 78 , 81 , 82 , 85 , 93 , 141 , 144 , 149 , 151 )
4. A Tribunal's finding is a 'decision' under the Act only if it is capable of independent implementation without further agreement or legislation. (Para 16 , 17 , 141 , 151 )
5. Suit for non-notified scheme dismissed — dam height restricted subject to clearances — further height disputes referred to future Tribunal. (Para 17 , 34 , 35 , 59 , 63 , 64 , 65 , 66 , 108 , 109 , 181 )
6. Does a suit for the implementation of an adjudicated water dispute award fall under the bar of Section 11 of the Inter-State Water Disputes Act?
No. A suit seeking the enforcement of a legal right based on an already adjudicated dispute is not a water dispute under Section 2(c) and is maintainable under Article 131 of the Constitution. (Para 24 , 136 , 137 )
7. What constitutes a 'decision' of a Water Disputes Tribunal that must be notified under Section 6 of the Act?
A decision must be an adjudication that is capable of being implemented on its own. Schemes requiring separate legislation or unanimous agreement of parties to function are not decisions under Section 5(2). (Para 16 , 17 , 141 , 151 )
8. Does a mass allocation of water to a State imply a project-wise restriction on how that water is utilized within the State?
No. Unless specific restrictions are mentioned in the final order, mass allocation allows a State to utilize its share in any manner it finds proper within its boundaries. (Para 81 , 82 )
9. Can a court issue a mandatory injunction directing the Central Government to frame a scheme under Section 6-A of the Act?
No. The power to frame such schemes is legislative or discretionary in nature; a mandamus cannot compel an authority to exercise a power that is legislative or involves substantial discretion. (Para 166 , 167 , 168 )
10. Can a court under Article 131 decide on the submergence of territory caused by a dam's height if it was not adjudicated by the Tribunal?
No. Such grievances constitute a fresh water dispute regarding the control of waters and must be referred to a Tribunal under the Inter-State Water Disputes Act. (Para 58 , 93 )
JUDGMENT :
G.B. PATTANAIK, J.
1. River Krishna originates in the State of Maharashtra and flows down through the State of Karnataka and State of Andhra Pradesh and meets the Bay of Bengal in Andhra Pradesh. It has got several tributaries and in the pre-independence era, there was not much dispute between the then States for sharing water of any inter-State river. Even then, when large-scale projects were taken up in one State, the other riparian States were apprehensive of getting their share of water from the river and it is in this context, for sharing the water of Tungabhadra, another river in the Krishna basin, there was an agreement in 1944, settling the dispute concerning the share of the water of the said River Tungabhadra. After the Constitution of India came into force, the Krishna basin fell within the territories of the States of Bombay, Mysore, Hyderabad and Madras. The States went on planning for erection of big projects for proper utilisation of the waters of the Krishna basin and in July 1951, a memorandum of agreement had been drawn up for apportionment of the available supply of the Krishna river system among the four riparian States namely, the 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 Registration 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 reallocation 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 States would come up with major projects, the other States would object to the same. By undertaking the construction of large projects by different States, pressure became more on the available supplies and disputes between the riparian States became more and more bitter. Several objections were raised in relation to Nagarjunasagar and Srisailam Projects in Andhra Pradesh as well as Koyna Project in Maharashtra. The Central Government in 1963 had taken a decision to clear up the pending new projects on the basis that the withdrawal of water by the States of Maharashtra, Mysore and Andhra Pradesh should not exceed 400, 600 and 800 TMC respectively. This decision of the Central Government was not acceptable to the State of Maharashtra and in June 1963, the Maharashtra Government had requested the Government of India for making a reference of the disputes to a tribunal. Between the period of 1963 to 1969, the Central Government tried their best to resolve the disputes between the riparian States by negotiations and holding several inter-State conferences. But it received more number of applications for reference of the dispute in the years 1968 and 1969. Then again, on account of reorganisation of the States and redistribution of the Tungabhadra Valley itself between the States of Mysore and Andhra Pradesh, disputes also arose concerning the validity of the earlier Tungabhadra agreement and the control and distribution of Tungabhadra water. The State of Karnataka is the successor-State of the State of Mysore. Finally on 10-4-1969, the Government of India constituted the Krishna Water Disputes Tribunal and called upon the Tribunal for adjudication of the water disputes regarding the inter-State River Krishna and the river valley thereof. The Tribunal was constituted under Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as “the Act”), which Act has been enacted by Parliament in exercise of powers conferred under Article 262 of the Constitution of India. The said Tri
