From My Note Pad

காவிரி வழக்கில் கடந்த பிப் 16 அன்று உச்சநீதிமன்றம் தனது தீர்ப்பை வழங்கியது. இது தொடர்பான மத்திய அரசின் நிலைப்பாட்டை எதிர்த்தும் மேலாண்மைவாரியம் அமைக்கக்கோரியும் பரவலாக இயக்கங்கள் நடந்துவருகின்றன. தீர்ப்பு 465 பக்கங்களை கொண்டது. அதை ஒருமுறை படிக்க முடிந்தது. அப்படி படிக்கும்போது எனக்கு பட்ட முக்கியமான நீதிமன்ற விவாத அம்சங்களை தொகுத்து எடுத்த குறிப்புகள் மட்டுமே ஏ4ல் 22 பக்கங்கள் வந்துள்ளன. 465 பக்கங்களையும் படிக்க இயலாதவர், ஆர்வம் இருப்பவர் எவருக்காவது உதவட்டுமே என்கிற வகையில் மட்டுமே  இணைய தளத்தில் இடம்பெற வைத்துள்ளேன். இதில் பாரா 359 மத்திய அரசின் நிலைப்பாட்டை புலப்படுத்தும். பாரா 396ல் உச்சநீதிமன்றம் சொல்லும் புதிய பங்கீட்டு வீதம் உள்ளது. 401 பாரா ஸ்கீம் எனப்பேசும் 6 ஏ விதிப்பற்றி பேசும். பாரா 403 ஆறுவாரத்தில் அவார்ட் நிறைவேற்றத்திற்குரிய ஸ்கீம் எனப்பேசும். ஸ்கீம் பற்றி பேசும் 6ஏ நோக்கம் அவார்ட் நிறைவேற்றத்திற்கானதே என தீர்ப்பு அழுத்தம் தரும். நர்மதா பங்கீட்டில் மெஷினரி என ஒன்று அவார்ட் அமுலாக்கத்திற்கு அமைக்கப்பட்டது. அதன் ஷரத்துக்களும் நாம் அறிய வேண்டிய ஒன்றாக உள்ளது.-R.Pattabiraman

Feb 16 2018   SC Judgment on Cauvery Issue

(Excerpts from the 465 pages Judgment)

Founding Fathers had not conferred the power on this Court to entertain an original suit or complaint and that is luminescent from the language employed in Article 131 of the Constitution and from the series of pronouncements of this Court. The Court further held that Section 6 cannot be interpreted in an absolute mechanical manner and the words ―same force as an order or decision‖ cannot be treated as an order or decree for the purpose of excluding the jurisdiction of this Court. Elaborating the same, it was held that it cannot be a decree as if this Court has adjudicated a matter and passed a decree. The Parliament has intended that the same shall be executed or abided as if it is a decree of this Court.

―We would like to clarify one aspect. The learned Senior Counsel appearing for the State of Karnataka as well as the State of Tamil Nadu have commended us to various authorities which we have already referred to in the context of Article 136 of the Constitution, but the purpose behind the said delineation is to show the broad canvas of the aforesaid constitutional provision in the context of maintainability of the civil appeals. How the final order passed by the Tribunal would be adjudged within the parameters of the said constitutional provision has to be debated when we finally address the controversy pertaining to the subject-matter of the civil appeals.‖

25. The State of Tamil Nadu lodged a request before the Government of India raising a water dispute and requesting for adjudication of the same by a Tribunal constituted under Section 3 of the 1956 Act. In the said complaint dated 6th July, 1986, it was stated on behalf of the State of Tamil Nadu that a water dispute had arisen with the Government of Karnataka by reason of the fact that the interests of the State of Tamil Nadu and the inhabitants thereof in the waters of Cauvery, which is an inter-State river, had been prejudicially affected..

The bilateral negotiations hitherto held between the States of Karnataka and Tamil Nadu have totally failed. Therefore, this request is made by the Government of Tamil Nadu to the Government of India under Section 3 of the Inter-State Water Disputes Act, 1956 to refer this water dispute to a Tribunal

27. On the basis of the aforesaid letter of request, the Central Government, by the notification dated June 2, 1990, constituted the Tribunal and passed the following order of reference:-

The Tribunal proceeded to decide the applications on merits and, vide its order dated June 25, 1991, and on a detailed analysis of the materials available, it directed the State of Karnataka, as an interim measure, to ensure that 205 TMC of water is available in Tamil Nadu's Mettur Reservoir in a year from June to May. The modalities for regulating the release of water so fixed were also laid down with a further direction that 6 TMC of water for Karaikal region of the Union Territory of Puducherry would be delivered by the State of Tamil Nadu. The State of Karnataka was restrained from increasing its area under irrigation by the waters of the river of Cauvery beyond the existing 11.2 lakh acres. In issuing this direction, the Tribunal was guided by the consideration that pending final adjudication, the rights of the parties ought to be preserved and it was also ensured that by the unilateral action of one party, the other party was not prejudiced from getting

30. The State of Karnataka, however, on 25.07.1991, promulgated an Ordinance captioned ―The Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991‖ which, for all intents and purposes,sought to negate the effect of the interim order dated 25.06.1991.

The State of Karnataka instituted a suit under Article 131 against the State of Tamil Nadu and others seeking a declaration that the order of the Tribunal granting interim relief was without jurisdiction. In the meantime, the Ordinance stood replaced by the Act 27 of 1991 and the said Act reproduced the provisions of the Ordinance in verbatim except that in Section 4 of the Act, the words ‗any court‘ were omitted and  

NOW, THEREFORE, in exercise of the powers conferred upon me by clause (1) of Article 143 of the

Constitution of India, I, Ramaswamy Venkataraman, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely:

(1) Whether the Ordinance and the provisions thereof are in accordance with the provisions of the Constitution;

(2) (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of Section 5(2) of the Act; and

(ii) Whether the Order of the Tribunal is required to be published by the Central Government in order to make it effective;

(3) Whether a Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute.‖

(37) Whether shortage of food in any of the States would be a relevant factor to be taken into consideration in making the apportionment of the Cauvery water?

(38) Whether the backwardness, under-developed and allegedly neglected area of a particular State would be relevant matters in making a fair and equitable distribution of the water of the Cauvery river?

(39) Whether the construction works executed by the State of Tamil Nadu in the Upper Bhavani,Vargarpallam West and Vargarpallam East, have unreasonably deprived the rights of the State of Kerala in the natural flow of the waters of the river Cauvery and, if so, to what effect?

(40) Whether the executive action taken by Karnataka in constructing Kabini, Hemavathi, Harangi,Suvarnavathy and other projects and expanding its ayacuts has prejudicially affected the interests of  Tamil Nadu and Pondicherry, materially diminished the supply of waters to Tamil Nadu and Pondicherry and materially affected the prescriptive rights claimed by Tamil Nadu and Pondicherry on behalf of their ayacutdars?

(41) Whether the above said executive action taken by Karnataka is in violation of 1892 and 1924 Agreements?

37. The Cauvery River Authority (Conduct of Business) Rules, 1998 were also framed and given effect to from 14.07.2000 in order to regulate the conduct of business of the Cauvery River Authority as provided in Clause 3(2) of the Cauvery Water (Implementation of the Interim Order of 1991 and all subsequent Related Orders of the Tribunal).

It is worthy to note here that after the defeat of Tipu Sultan by the British, the Wadiyars, Rulers of the State of Mysore, were decored with the crown under Subsidiary Alliance Treaty in 1799. The State of Mysore undertook certain works in its territory pertaining to restoration of river which wasprotested by the Collector of Tanjore in the Madras Presidency. The correspondence continued which is not necessary to be referred to.

In the year 1881, the Viceroy and the Governor General of India, by an Instrument of Transfer 1881, restored the administration of the Princely State of Mysore to another scion of the Wadiyar family by signing the ―Sanad‖ described as ―Instrument of Transfer‖. Be it stated here, the State of Karnataka asserts that it was not a treaty  but a ―Sanad‖ as is reflected from the communication made by the British Foreign Secretary in his dispatch of 1874

After the year 1881, the British Government of Madras Presidency raised objections as regards the fact that there was continued implementation of the schemes for restoration of tanks in Mysore by stating that the Presidency of Madras had a right to uninterrupted natural flow in the river. On 13th June, 1889, the British Resident in Mysore thought it appropriate to remind the Dewan of Mysore that the British Resident could not accept the Dewan‘s stand and that Mysore had the right to utilize to the fullest extent the natural water forces flowing through its territory

43. On 21.01.1892, the order was passed by the British Government of Madras directing that the consent of Madras Government should be obtained before the new reservoir is  constructed within the Mysore State and in the event of disagreement between the two Governments, the matter has to be settled by arbitration.

44. In view of the above, the agreement was entered into between the Madras Government and State of Mysore on 18.02.1892

III. When the Mysore Government desires to construct any ―New Irrigation Reservoir‖ or any new anaicut the previous consent of the Madras Government under the last preceding rule, then full information regarding the proposed work shall be forwarded to the Madras Government and the consent of that Government shall be obtained previous to the actual commencement of work. The Madras Government shall be bound not to refuse such consent except for the protection of prescriptive right already acquired and actually existing, the existence, extent and nature of such right and the mode of exercising it being in every case determined in accordance with the law on the subject of prescriptive right to use of water and in accordance with what is fair and reasonable under all the circumstances of each individual case.

45. We may note here that on 18.02.1924, another agreement was entered.

(iv) The Mysore Government on their part shall be at liberty to carry out future extensions of irrigation in Mysore under the Cauvery and its tributaries to an extent now fixed at 110,000 acres. This extent of new irrigation of 110,000 acres shall be in addition to and irrespective of the extent of irrigation permissible under the Rules of Regulation forming Annexure I to this agreement, viz, 1,26,000 acres plus the extension permissible under each of the existing channels to the extent of one-third of the area actually irrigated under such channel in or prior to 1910

v) The Madras Government on their part agree to limit the new area of irrigation under their Cauvery Metur Bar & Bench (www.barandbench.com) 60 project to 301,000 acres, and the capacity of the new reservoir at Metur, above the lowest irrigation sluice to ninety-three thousand five hundred million cubic feet.

xi) The Mysore Government and the Madras Government further agree that the limitations and arrangements embodied in clauses (iv) to (viii) supra shall at the expiry of fifty years from the date of the execution of these presents, be open to reconsideration in the light of the experience gained and of an examination of the possibilities of the further extension of irrigation within the territories of the respective Governments and to such modifications and additions as may be mutually agreed upon as the result of such reconsideration.

50. In 1934, a new reservoir at Mettur which was constructed by Madras became operational pursuant to Clause 10(v) of the agreement of 1924 and the Madras Government had agreed to limit ―the new areas of irrigation under their Cauvery Mettur project (Project Report of 1921) to 301,000 acres‖ and the capacity of ―the new reservoir at Mettur‖ to 93.5 TMC. In the said order, the State of Madras started planning of Nhawan reservoir under Clause 10 (xiv) of the agreement of 1924 and, as a result, Mysore became entitled to construct a reservoir of 60% of the capacity planned by Madras and, accordingly, Mysore proposed Kabini Reservoir as an offset reservoir under Clause 10(xiv) of the said agreement.

51. In the year 1935, the British Parliament enacted the Government of India Act, 1935 (for short, ―the 1935 Act‖). In the year 1947, the Indian Independence Act, 1947 (for brevity, ―the 1947 Act‖) came into force. The Maharaja of Mysore had executed  an agreement ―Instrument of Accession‖ initially only on two subjects, namely, defence and external affairs and communications which was accepted by the Governor General of India on 16.08.1947. Thereafter, a White Paper was released on Indian States and ―Standstill Agreement‖ was entered into between the Dominion of India and the Maharaja of Mysore. A supplementary ―Instrument of Accession‖ was executed on 01.06.1949 for all matters enumerated in List I and List II of the Seventh Schedule of the 1935 Act which was contained in the said supplementary agreement. After coming into force of the Constitution of India, the 1947 Act stood repealed by reason of the provisions contained in Article 395 of the Constitution of India and the erstwhile province of Madras under the 1935 Act became a Part A State of Madras with effect from 26.01.1950. On 01.11.1956, the new State of Mysore was formed by the States Reorganisation Act, 1956 (for short, ‗the Reorganisation Act‖).

52."Note on discussions regarding Cauvery held at New Delhi on 29th May, 1972" "Discussions were held on 29th May, 1972 at New Delhi between the Chief Ministers of Mysore, Tamil Nadu and Kerala. Union Minister for Irrigation and Power and Deputy Ministers were present. The Chief Ministers were assisted by Ministers of respective States, those present were as follows:

 I. Tamil Nadu: 1. Thiru M. Karunanidhi, Chief Minister 2. Thiru S. Madhavan, Minister for Law 3. Thiru SJ. Sadiq Pasha, Minister for Public Works

 II. Mysore: 1. Shri D. Devaraj Urs, Chief Minister 2. Shri M.N. Nanja Gouda, Minister for State for Major Irrigation

 III. Kerala: 1. Shri C. Achutha Menon, Chief Minister 2. Shri T.K. Divakaran, Minister for Public Works

2.2. The Centre may appoint a Fact Finding Committee consisting of Engineers, retired Judges and if necessary, Agricultural Experts to collect all the connected data pertaining to Cauvery waters, its utilization and irrigation practices as well as projects both existing, under construction and proposed in the Cauvery basin. The Committee will examine adequacy of the present supplies or excessive use of water for irrigation purposes. The Committee is only to collect the data and not make any recommendations. The Committee may be asked to submit its report in three months time. 2.3 Making use of the data, discussions will be held between the Chief Ministers of the three States to arrive at an agreed allocation of waters for the respective States. 3. Union Government will assist in arriving at such a settlement in six months, and in the meanwhile, no State will take any steps to make the solution of the problem difficult either by impounding or by utilizing water of Cauvery beyond what it is at present.‖

54. 54. The CFFC submitted a report on 15.12.1972

The data supplied by the three States runs into 20 volumes. In addition, they have left with the Committee project reports for their study which also run into 36 volumes. As this voluminous data requires very careful examination and scrutiny, the Committee "had asked for further extension of one month from 15th December, 1972 to 15th January, 1973. But the same has not been agreed to.

55. On 14.08.1973, an additional report was submitted. In October, 1973, the States of Mysore, Tamil Nadu and Kerala desired the Government of India to make a study on the scope of economy in the use of water and in pursuance of the same, the C.C. Patel Committee was constituted. The Committee made various recommendations and an estimate of irrigation water requirement in each State. On 12.08.1976, a Committee with Mr. E.C. Saldhana, Member, Central Water Commission, as Chairman was set up by the Central Government

56. on 06.07.1986, the State of Tamil Nadu lodged a complaint under the 1956 Act with the Government of India raising water dispute thereby requesting for adjudication of the water dispute by a tribunal.

Fali Nariman challenged the legal validity of 1924 agreement…The contention of the State of Karnataka before the Tribunal was that the Agreement of 1924 is not covered by Section 177 of the Government of India Act, 1935 and as such, it lapsed after coming into force of the said Act.

69. Mr. Nariman, learned senior counsel, has assiduously and astutely canvassed about the doctrine of paramountcy. For the said purpose, he has drawn our attention to Section 7 of the 1947 Act. The said provision reads as follows:- ―7.(1) As from the appointed day(a) His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India;

71. It is submitted by Mr. Nariman that the ―Standstill Agreement‖ dated 09.08.1947 which was actually executed by the Maharaja of Mysore stipulated that nothing in the said agreement could include the exercise of any paramountcy function and, therefore, the ―Standstill Agreement‖ will not cover the State of Mysore. Learned senior counsel would contend that with the coming into force of the Constitution of India on 26.01.1950, the 1947 Act passed by the Parliament stood repealed by reason of the provision of Article 395 of the Constitution and Mysore became a Part B State under the Constitution and the erstwhile province of Madras became a Part A State. According to him, even if the ―Standstill Agreement‖ executed between the Maharaja of Mysore and the Dominion of India was operative and existing, it came to an end. According to him, the 1947 Act did not survive beyond the final accession of the State of Mysore to the Union of India and ―Standstill Agreement‖ entered

73. In the era before 1947 the term ―State‖ applied to a political community occupying a territory in India of defined boundaries and subject to a single Ruler who enjoyed or exercised, as belonging to him, any of the functions and attributes of internal sovereignty duly recognised by the British Crown. There were in India more than 560 States: forty out of those States had treaty relations with the Paramount Power: a larger number of States had some form of engagements or Sanads, and the remaining enjoyed in one or the other form recognition of their status by the British Crown. The treaties, engagements and Sanads covered a wide field, and the rights and obligations of the States arising out of those agreements varied from State to State. The rights that the British Crown as the Paramount Power exercised in relation to the States covered authority in matters external as well as internal. The States had no international personality, the Paramount Power had exclusive authority to make peace or war, or to negotiate or communicate with foreign States. The Paramount Power had the right of intervention in internal affairs which could be exercised for the benefit of the head of the State, of India as a whole, or for giving effect to international commitments.‖

74. Paramountcy had no legal origin, and no fixed concept: its dimensions depended upon what in a given situation the representatives of the British Crown thought expedient. Paramountcy meant those powers which the British authorities by the might of arms, and in disregard of the sovereignty and authority of the States chose to exercise. But that paramountcy lapsed with the Indian Independence Act, 1947: even its shadows disappeared with the integration of the States with the Indian Union. After the withdrawal of the British power and extinction of paramountcy of the British power the Dominion Government of India did not and could not exercise any paramountcy over the States

It is difficult to conceive of the government of a democratic Republic exercising against its citizens ―paramountcy‖ claimed to be inherited from an imperial power. The power and authority which the Union may exercise against its citizens and even aliens spring from and are strictly circumscribed by the Constitution.

Under our Constitution an action not authorised by law against the citizens of the Union cannot be supported under the shelter of paramountcy. The functions of the President of India stem from the Constitution — not from a ―concept of the British Crown‖ identified or unidentified. What the Constitution does not authorise, the President cannot grant. Rulership is therefore not a privilege which the President may in the exercise of his discretion bestow or withhold.‖

88. He has referred to the debates of the Constituent Assembly especially the observations made by Dr. B.R. Ambedkar as the Chairman of the Drafting Committee while moving the draft Constitution for consideration by the Constituent Assembly. The said observations are extracted hereunder:- ―On the 15th August 1947 we had 600 Indian States in existence. Today by the integration of the Indian States with Indian Provinces or merger among themselves or by the Centre having taken them as centrally administered areas, there have remained some 20 or 30 States as viable States. This is a very rapid process and progress. I appeal to those States that remain to fall in line with the Indian Provinces and to become full units of the Indian Union on the same terms as the Indian Provinces. They will thereby give the Indian Union the strength it needs. They will save themselves the bother of starting their own Constituent Assemblies and drafting their own separate constitution, and they will lose nothing that is of value to them. I feel hopeful that my appeal will not go in vain and that before the Constitution is passed, we will be able to wipe off the differences between the Provinces and the Indian States.‖

83. Mr. Dwivedi, learned senior counsel, per contra, would submit that the decision in State of Tamil Nadu (supra) does not run counter to the principle stated in Madhav Rao Scindia. According to him, Madhav Rao Scindia exclusively dealt with a political situation. To bolster the said aspect, he has drawn our attention to the ―Standstill Agreement‖ which does not apply to any paramountcy function…..it dealt with the abolition of Privy Purses by the President of India and how the action was erroneous and how the Court treated it to be of political nature…Therefore, we are not inclined to accept the submission of Mr. Nariman that after coming into force of the 1947 Act and thereafter the Constitution of India, the agreements of 1892 and 1924 became inoperative and totally extinct

92. Mr. Nariman would submit that any controversy relating to any agreement is not entertainable by this Court. According to him, a complaint for raising a dispute under Article 262 of the Constitution can be independent without the base or foundation of the 1892 and 1924 agreements but to structure the stand on the fulcrum of the agreements would run counter to Article 363 of the Constitution as has been held by the Constitution Bench in State of Seraikella (supra). It is also proponed by him that the later decision in State of Tamil Nadu v. State of Kerala (supra) has not taken note of the earlier decision and introduced the element of political agreement and categorized agreements into distinct ones, namely, political agreement and ordinary agreement

94.In essence, the contention is that the agreements are not liable to be adjudicated in a court of law or tribunal as has been held by the Constitution Bench in In Re: Presidential Reference (Cauvery Water Disputes Tribunal)10 to the effect that the entire ―judicial power of the State‖ under Article 131 relating to adjudication of water disputes stood transferred under the law enacted under Article 262(1), that is, the 1956 Act and the finding recorded by the Tribunal is not a court and, therefore, Article 363(1) would not apply to it is incorrect. According to him, the agreements are not to be looked into for any purpose.

95. The same is the position here. The Inter-State Water Disputes Act, 1956 has not been enacted under Entry 56 of the Union List of Seventh Schedule of the Constitution. It has been enacted under power vested in the Parliament by Article 262 of the Constitution. In view of Article 262 Parliament may by law provide 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. Article 262(2) has a non-obstante clause saying that notwithstanding anything in the 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 in clause (1). It has already been pointed out above that in exercise of this power in the Inter-State Water Disputes Act, 1956, Section 11 excludes the jurisdiction of all courts including the Supreme Court, if in Article 363(1) there is a non- obstante clause giving an over-riding effect, then even in Article 262(2) there is a non-obstante clause which read with Section 11 of the Inter-State Water Disputes Act shall exclude the jurisdiction of Supreme Court or any other court in respect of a dispute relating to use, distribution and control of waters of inter-State river or river valley. It cannot be disputed that Article 262 is a special provision providing for adjudication of any dispute in respect of use, distribution or control of waters of an inter-State river or river valley

97. The question here is not one of an act of State. Nor can any assurance be drawn from the doctrine of act of State. What we have to do is to construe the article. It bars jurisdiction of Court. It has no bearing upon the rights of the Rulers as such. It neither increases nor reduces those rights by an iota. I shall presently attempt to find out its meaning. Before I do so I must say that it is a well-known rule of interpretation of provisions barring the jurisdiction of civil courts that they must be strictly construed for the exclusion of the jurisdiction of a civil court, and least of all the Supreme Court, is not to be lightly inferred. The gist of the present dispute is whether the article bars the relief to the petitioners although as held by me, the order of the President is ultra vires.

98.The Court will interpret a statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker intending injustice and unreason. The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous. The provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property must, unless the mandate to precise and unqualified, be construed liberally so as to uphold the right. These rules apply to the interpretation of constitutional and statutory provisions alike.‖

101. There is similarity of provision in Article 363 and proviso to Article 131. The original jurisdiction conferred on this Court by the main provision contained in Article 131 is excepted by virtue of the proviso in the matters of political settlements. By making provisions such as Article 363 and proviso to Article 131, the political settlements have been taken out of the purview of judicial pronouncements. Proviso appended to Article 131 renders a dispute arising out of any treaty, agreement, covenant, engagement, sanad or similar instrument which is political in nature executed before the commencement of the Constitution and which has or has been continued in operation, non-justiciable and jurisdiction of this Court is barred. The jurisdiction of this Court is not taken away in respect of the dispute arising out of an ordinary agreement. The instruments referred to and described in the proviso are only those which are political in nature. Non-political instruments are not covered by the proviso.‖

111. ‗Freedom of contract‘, it has been said, ‗is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interests of the community at large‘. Freedom of contract is of little value when one party has no alternative between accepting a set of terms proposed by the other or doing without the goods or services offered. Many contracts entered into by public utility undertakings and others take the form of a set of terms fixed in advance by one party and not open to discussion by the other. These are called ‗contracts d’adhesion‘ by French lawyers. Traders frequently contract, not on individually negotiated terms, but on those contained in a standard form of contract settled by a trade association. And the terms of an employee‘s contract of employment may be determined by agreement between his trade union and his employer, or by a statutory scheme of employment. Such transactions are nevertheless contracts notwithstanding that freedom of contract is to a great extent lacking.

121. Mr. Nariman has referred to Section 7 of the Reorganisation Act to highlight that by reason of the provisions contained under Section 7 of the said Act, the new State of Mysore cannot be treated as the successor State in respect of the obligations of the Ruler of the Indian State of Mysore under the Agreements of 1892 and 1924.

122. Per contra, Mr. Dwivedi, learned senior counsel, would contend that the present case is not one where the territory of a Sovereign State got acceded to another Sovereign State….Formation of new States and alteration of areas, boundaries or names of the existing States under the parliamentary legislation did not alter the rights and liabilities and continued to remain in force and binding upon the successor State so long as they are not modified, changed or repudiated. He has drawn a distinction between a statutory acceptance and the recognition by the new State which can be explicit or implied

127. In the present case, the two provisions, namely, Sections 107 and 119 of the Reorganization Act of 1956 unequivocally spell out the continuance of the assets and liabilities. That apart, the new State of Mysore after 1956 recognised and enforced the agreement and, in any case, did not repudiate it. And in all possibilities, the State could not have done it as it related to inter-State waters and the Parliament in the Reorganisation Act did not make any law in that regard.

131. Impressing thereon, it is submitted by Mr. Dwivedi that the aforesaid provisions by operation of law made the 1924 Agreement recognisable and implementable. According to him, the rights and liabilities under the 1924 Agreement are constitutionally continued with and vest in Mysore as Part B State under Article 295(2) of the Constitution

136. The Tribunal referred to the notes of arguments produced on behalf of the State of Tamil Nadu before it which indicated that the average inflow into Mettur for 38 years from 1934 - 1935 was 377.1 TMC serviced by three sources with the following break ups: ―(i) From KRS, as per Rules of Regulation of KRS Annexure 1 of 1924 Agreement - 159.780 TMC (ii) From Kabini - 112.615 TMC (iii) Contribution for intermediate catchment below KRS and below Hullahalli Anicut in Kabini including 25 TMC from catchment area above Mettur in Tamil Nadu -104.746 TMC Total – 377.141 TMC‖

140. The Tribunal, as we find, has accepted the plea and stand of the State of Tamil Nadu that the 1924 Agreement did not expire in 1974

the Tribunal delved into the time phase chapter pertaining to the Treaty of 1799 entered into between the then East India Company and the Maharaja of Mysore whereupon the possession of the Mysore State was handed over to the then Maharaja. It marked, inter alia, the undertaking of the then Maharaja of Mysore that he would abstain from any interference in the affairs of any state in alliance with the English Company Bahadur and would not enter into any communication or correspondence with any foreign State without the previous knowledge or sanction of any English Company Bahadur.

142. While noticing the plea of Karnataka that after the Treaty of 1799, with the advent of East India Company as well, the administration of Mysore had been taken away by it, and the possession of the State was eventually handed over to the then Maharaja on 25.03.1881, and that thus the British Crown was apparently exercising its paramount power over the ruling State of Mysore for which, as a feudatory State, it was really under a compulsion to subject itself to the constraints prescribed under the Agreement, the Tribunal observed that International Agreements as well as Inter-state Agreements cannot be examined at a later stage on the touchstone of whether the terms were just and proper, keeping the interest of both the Nations or the States at the time of execution thereof.

147.The continuance after 50 years was dependent on certain aspects and, therefore, we have no hesitation in holding that the agreement expired after 50 years. The submission on behalf of the State of Tamil Nadu is that the obligations of the contract continued but, in this context, it is worth noting that the parties to the agreement had entered into correspondence with the Central Government agitating their grievances and they met at the various levels to discuss and to arrive at an acceptable arrangement. That not having been accepted, the complaint was lodged. Taking into consideration the entire conspectus of facts and circumstances, we hold that the agreement expired after 50 years in the year 1974.

155.The right to the use of flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable enjoyment of the same gift of Providence. It is, therefore, only for an abstraction and deprivation of this common benefit, or for an unreasonable and unauthorised use of it that an action will lie.

It is further an acknowledged principle of distribution and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State. What the equitable share will be will depend upon the facts of each case. It is against the background of these principles and the provisions of law we have already discussed that we have to examine the respective contentions of the parties.‖

159. At this juncture, it is worth noting the submissions advanced by Mr. Katarki, learned senior counsel appearing for the State of Karnataka and Mr. Naphade, learned senior counsel appearing for the State of Tamil Nadu. It is submitted by Mr. Katarki that the equitable share of water to be allocated to the party States had to be based on needs rather than on the flow of the river. No State had any right to the natural flow of an inter-state river and several factors had to be considered while assessing the needs like basin factors, drought area and population. He emphasized on the basic aspects, namely, Natural Flow Theory and Helsinki Rules, 1966 and placed reliance on the decision in New Jersey (supra) and other authorities. Mr. Naphade, per contra, would contend that the contention that there has to be an equal apportionment of water between the two States is untenable. According to him, the parameter of equality has to be understood from a different perspective in a controversy giving rise to water dispute. He relied upon the observation made by the Narmada and Krishna Water Disputes Tribunals that the principle of equality did not imply that there must be an equal division of water between the States but instead meant that the States must have equal consideration and equal economic opportunity. Such equality would not necessarily result in the same quantity of water being provided to the parties.

160. The Tribunal has referred to the Helsinki Rules of 1966 that has rejected the Harmon Doctrine and laid stress on the need of equitable utilization of international rivers.

162. In this regard, it is submitted by Mr. Nariman that the allocation of water could be done equitably and in accordance with justice by restoring equal rights to the party states. He submitted that Karnataka and Tamil Nadu were co-equal States and that justice had to be done to both while allocating water, a fact which the Tribunal had failed to recognize. The Tribunal intertwined a decision based on a void agreement with the doctrine of equitable apportionment contrary to the law laid down in In Re: Presidential Reference (supra). He submitted that the various applicable factors set out in the Helsinki Rules, 1966 were more or less evenly balanced between the two States.

165. The definition of ‗water disputes‘ and the provisions contained in Section 3 have to be given due significance. Section 3 protects the right of inhabitants of a State. When the States make a request under the 1956 Act for adjudication of the disputes, the interest of the inhabitants of the State is involved. That is why, submits Mr. Nariman, both the States are governed by the parens patriae principle. Keeping in view the principles of law stated, we are disposed to think that the controversy is to be adjudged on the bedrock of equal status of the States and the doctrine of equitability.

a scheme for storage of the water of Cauvery was formulated in 1931 after the construction of the Krishna Raja Sagara Dam (also referred to as ―KRS‖) for the storage of 44.8 TMC of water. It stated that by 1934, Madras too had completed the work of Mettur Dam for storage of 93.5 TMC of water of Cauvery thereby enabling cultivation of over 1,21,457 hec. (3,00,000 acres) of new area.

182.Referring to a letter dated 06.07.1915 addressed by the then Dewan of Mysore to the Resident of Mysore which carried, according to the Tribunal, an admission on behalf of the State of Mysore to the effect that at that point of time, the area irrigated under the Cauvery System in Madras was 12,25,500/- acres, it upheld the claim of State of Tamil Nadu that prior to the execution of the Agreement of 1924, its area of irrigation was 13,26,233 acres…….the issue regarding prescriptive right of Madras had been rendered academic.

183. The Tribunal noted as well that after 1974, when according to the State of Karnataka, the Agreement of 1924 came to an end, it started impounding waters in different reservoirs constructed over the tributaries of Cauvery within its territories without following any Rules or any of the terms of the Agreement of 1924 and that the areas which were to be put under irrigation from such reservoirs and other diversion of works, like Anicuts increased every year. Referring to the charts laid before it, the Tribunal also marked that the impounding of water in different reservoirs on Hemavathi, Kabini, Suvarnavathy and Harangi tributaries in the State of Karnataka increased, which precisely was one of the inducing factors for the dispute to be referred to the Tribunal for…..The Tribunal, on an overall view of the intervening developments, concluded that the issue as to who was at fault and responsible for such alleged breaches or violations had been rendered academic with time and was of no practical relevance. It, however, set down that Mysore had observed the rules of regulation of Krishna Raja Sagara reservoir till the expiry of the period of 50 years from the date of the execution of the Agreement of 1924, but thereafter had started asserting its territorial rights over the water flowing from Cauvery within its boundaries.

184. Noting, amongst others, that even the State of Tamil Nadu had increased its acreage under the Cauvery irrigation system over the years from 16 lakhs to 28 lakhs, the Tribunal was of the view that the violations or the injuries caused by the States allegedly to each other was really a matter of history and defied any manageable parameter for assessment thereof after the lapse of considerable period of time.

185. It claimed that the three tributaries, namely, Kabini, Bhawani and Amaravathi, which had become part of Kerala State, did contribute about 220 TMC against the total flow of 680 TMC in the entire Cauvery basin and that there had been practically no utilization of this water by it. It registered its claim for irrigation and power generation at 86 TMC

189.To strike a balance for resolving such conflicting claims of the upper and lower riparian States, the principle of equitable apportionment as propounded by the Supreme Court of United States in Kansas v. Colorado (supra) was taken note of. The Tribunal while accepting this principle however posed a question to itself, as to what would be the equitable apportionment, more particularly where the water available was not enough to cater to the needs of different riparian States.

The Tribunal recorded that the State of Tamil Nadu did not dispute at any stage the assessment made by the Cauvery Fact Finding Committee in respect of the river flow and total yield of river Cauvery to be at 740 TMC at 50% dependability, 670 TMC at 75% dependability and 623 TMC at 90% dependability and had also accepted about the utilization by the three riparian States, Tamil Nadu, Karnataka and Kerala, as found by the Committee in its additional report to be 566.60, 176.82 and 5.00 TMC respectively.

191.1934-35 to 1971-72, the lowest recorded yield was during the period 1952-53 at 523 TMC according to Tamil Nadu and 516 TMC according to Karnataka. It noted that in the Cauvery basin, the fluctuation of the flows was not as high as in the Krishna or Narmada basin, such fluctuation between the lowest yield and the dependable yield being within 30% in comparison to 56% and 70% in case of Krishna or Narmada.

The Tribunal, thus, concluded that the total storage capacity in the Cauvery basin was 330 TMC (gross) and 310 TMC (live). It was of the view that about 42% of 740 TMC (i.e., 50% dependable yield) could be stored in all the storage reservoirs in the Cauvery basin which was a very significant aspect for consideration in the development and utilization of water resources of a river basin

192. that groundwater caters to more than 45% of the total irrigation in the country. On this issue, whereas the State of Karnataka contended that while making apportionment of the waters available within the Cauvery basin, groundwater available within the delta areas should also be taken into consideration, per contra, Tamil Nadu asserted to the contrary.

It mentioned in its report that although the groundwater is an annually replenishable resource, yet its availability is non-uniform in space and time and though for planning its development, a precise estimation of groundwater resource and irrigation potential is a necessary pre-requisite, yet such an exercise is rather difficult as techniques are currently not available for direct measurement

The Tribunal also took note of the fact that the development of groundwater had taken place mostly in the private sector where the owners have many a time over-exploited the available groundwater resources resulting in gradual lowering of the water level with the hazard of intrusion of sea water in the coastal areas thereby polluting the quality of groundwater in the vicinity of the coastline and, thus, rendering the groundwater in the affected area not only unfit for human consumption but also for use in agriculture.

193.It elaborated that the yearly quantity of groundwater that can be extracted by using centrifugal pumps in the Cauvery sub-basin, Vennar sub-basin and in the new delta was 33.7 TMC, 5.4 TMC and 32.5 TMC respectively. Additionally, a quantity of 56.5 TMC of groundwater per year can also be made available in the Cauvery sub-basin by lowering seasonally groundwater level to 10 meters depth below the regional groundwater level and substituting high yielding medium-depth tube-wells equipped with turbines for the low yield filter points with centrifugal pumps. This finding, however, was criticized by Tamil Nadu as impracticable and unworkable, more particularly in view of the high cost involved in purchasing the equipments suggested and in lowering the depth upto 10 meters by different cultivators in the

the Tribunal, considering the severe limitation in the assessment of groundwater resource, made a safe estimate of 20 TMC which could be used by Tamil Nadu conjunctively with surface water. The Tribunal clarified that this quantum was arrived at after excluding the component of groundwater re-charge from river water by lateral infiltration

201.the Halsbury‘s Laws of Bar & Bench (www.barandbench.com) 249 England, 4th Edition, Vol. 49(2), paragraph 121 was extracted to underscore the parity in the rights of co-riparian claimants to a reasonable enjoyment and use of the water:-

―121. Rights and duties as to quality of water. The right of a Riparian owner to the flow of water is subject to certain qualifications with respect to the quantity of water which he is entitled to receive. The right is subject to the similar rights of other Riparian owners on the same stream to the reasonable enjoyment of it, and each Riparian owner has a right of action in respect of any unreasonable use of the water by another Riparian owner... A Riparian owner must not use and apply the water so as to cause any material injury or annoyance to his neighbours opposite, above or below him, who have equal rights to the use of the water and an equal duty towards him.‖

202. 202. The Tribunal next marked the advent of the Helsinki Rules of 1966 which rejected the Harmon doctrine and laid emphasis on the need of equitable utilization of such international rivers. The said Rules recognize equitable use of water by each basin State setting out the factors, not exhaustive though, to be collectively taken into consideration for working out the reasonable and equitable share of the riparian states. The indicated factors, inter alia, include the geography of the basin, the hydrology of the basin, the climate, past utilization of waters, economic and social needs of each basin State,

204. the Tribunal recorded that so long as the river flows are not wholly obstructed or diverted or appropriation of the water by the upper riparian States is not more than just and reasonable use, it cannot be said to be wrongful or injurious to the right of the lower riparian State.. stated that equitable apportionment would, thus, protect only those rights to the water that were reasonably required and applied especially in those cases where water was scarce or limited. It emphasized that the water of a river being a treasure in a sense, wasteful or inefficient use thereof cannot be approved and only diligence and good faith would keep the privilege alive. It, however, reflected that the theory of equitable apportionment pre-supposed equitable and not equal rights and any order, direction, agreement or treaty has to take into consideration the economic and social needs of different riparian States. It reiterated that while determining the reasonable and equitable share, all relevant factors are to be cumulatively considered.

219. From the data furnished by the State of Karnataka in support of its area of development as in June 1990 to be 20.98 lakh acres, the Tribunal discerned that the additional area which was under progress for irrigation development outside the Agreement was 10.30 lakh acres, by that time

222. It was indicated in particular that having regard to the demand of the States, i.e., 566 TMC by Tamil Nadu, 466 TMC by Karnataka, 100 TMC by Kerala and 9 TMC by Union Territory of Puducherry, some curtailments were indispensable in view of the total yield of the Basin computed on 50% dependability at 740 TMC.

231. Whereas Tamil Nadu recorded its crop water requirement to be 444.15 TMC for an area of 25.824 lakh acres with a separate demand of 68.9 TMC for an area of 3.445 lakh acres under minor irrigation and 10 TMC on the count of reservoir evaporation losses, Karnataka registered a claim of 381.71 TMC for cropped area of 25.27 lakh acres including therein 71.3 TMC for an area of 3.30 lakh acres under minor irrigation. In addition, Karnataka demanded 28.158 TMC for its proposed projects covering an area of 2.008 lakh acres to which the Tribunal responded by observing that these proposed projects could be considered subject to the availability of water after meeting the requirements of the existing and ongoing projects, domestic water, industrial water, environmental needs, etc 

247. Calculation of Delta for other project areas was also undertaken by applying system efficiency at 65% and finally, the water requirement for the State of Tamil Nadu, by adopting the deltas so computed for main crops and applying the same to the cropped areas worked out on the need basis, was quantified at 390.85 TMC for an area of 24.71 lakh acres including reservoir losses of 10 TMC. In arriving at this figure, the Tribunal rejected the contention of Karnataka that the demand should be limited to 242 TMC as worked out in the Cauvery Mettur Project Report of 1921. This was, amongst others, by accepting the explanation of Tamil Nadu that the state water requirement was only an estimated one based on very high duty factors which proved to be impractical

248. In the process of assessing the water requirement of Karnataka, the Tribunal noted that the computations by it had been made adopting the Government of India guidelines….requirement of Karnataka was computed to be 250.62 TMC for 18.85 lakh acres.

254. 254. The Tribunal was of the view that as drinking water requirement would be spread over the entire area of the basin, it would be reasonable to assess that 50% of the drinking water requirement would be met from ground water sources as it is generally seen that wells and tube-wells in urban and rural areas cater substantially to the said need. It acknowledged that though the States were asked to project their population for the period from 2000 to 2025 for working out the drinking water requirement, it considered it to be apt to make such assessment taking 2011 to be the yardstick as it construed it to be sufficient.

256. After referring to the materials furnished by Karnataka indicating the existing and ongoing drinking water schemes and its demand on that count for Bengaluru city as 30 TMC in a projection of 20 to 25 years, it estimated the same to be 14.52 TMC on the basis of its existing requirements as indicated by it as in 1990.

274. S.No.  Crop Area (hectares)   Water Requirement (Mcft.) (1)  Samba (Single Crop) 4760  3006   (2) Kuruvai (Khariff double crop) 6230 2868 3) Thalady (Rabi – double crop) 6230 3366 Total 9240

290. The Tribunal also did devise the machinery for implementation of its final decisions/orders and in doing so, took note of Section 6A introduced in the 1956 Act by Act 45 of 1980 with effect from 27.08.1980 empowering the Central Government to frame schemes, if any, in respect of such implementation….However, in its view, as the Inter-State Water Disputes (Amendment) Act, 1980 did not provide for details with regard the to constitution of the machinery and its functions, it had the implied power to make recommendations in that regard for implementing its decision. It, thus, recommended that the Cauvery Management Board be constituted on the lines of Bhakra Beas Management Board by the Central Government. It underlined that unless an appropriate mechanism was set up, the prospect of implementation of its decision would not be secured.

It further recommended that as its award involved regulation of supplies from various reservoirs and other important nodal points/diversion structures, it was imperative that the mechanism, Cauvery Management Board, be entrusted with the function of supervision of the operation of reservoirs and the regulation of water releases therefrom with the assistance of the Cauvery Water Regulation Committee (to be constituted by the Board)

The Cauvery Management Board was also required to submit an annual report to the four party-States before the 30th of September of each year. The Tribunal prescribed guidelines for the Cauvery Management Board which besides being exhaustive were intended to touch upon the functional details relating to the supplies out of the allocated shares.. We do not intend to state the guidelines laid down by the Tribunal as we shall be addressing to many an aspect while analyzing the concept of the scheme as envisaged under Section 6.1 of the 1956 Act

291. The Tribunal hereby determines that the utilisable quantum of waters of the Cauvery at Lower Coleroon Anicut site on the basis of 50% dependability to be 740 thousand million cubic feet-TMC (20,954 M.cu.m.)

Clause-V The Tribunal hereby orders that the waters of the river Cauvery be allocated in three States of Kerala, Karnataka and Tamil Nadu and U.T. of Pondicherry for their beneficial uses as mentioned hereunder:- i) The State of Kerala - 30 TMC ii) The State of Karnataka - 270 TMC iii)The State of Tamil Nadu - 419 TMC iv) U.T. of Pondicherry - 7 TMC ________ 726 TMC

Clause-IX Since the major shareholders in the Cauvery waters are the States of Karnataka and Tamil Nadu, we order the tentative monthly deliveries during a normal year to be made available by the State of Karnataka at the interState contact point presently identified as Billigundulu gauge and discharge station located on the common border as under: Month TMC Month TMC June 10 December 8 July 34 January 3 August 50 February 2.5 September 40 March 2.5 October 22 April 2.5 November 15 May 2.5 192 TMC

The above quantum of 192 TMC of water comprises of 182 TMC from the allocated share of Tamil Nadu and 10 TMC of water allocated for environmental purposes.

(c) The expression ―water year‖ shall mean the year commencing on 1st June and ending on 31st May.

(d) The ―irrigation season‖ shall mean the season commencing on 1st June and ending on 31st January of the next year. (e) The expression ―Cauvery river‖ includes the main stream of the Cauvery river, all its tributaries and all other streams contributing water directly or indirectly to the Cauvery river. (f) The expression ―TMC‖ means thousand million cubic feet of water.

302. As per Karnataka's calculations, the actual amount of water to be allocated to Tamil Nadu ought to have been 311.6 TMC as opposed to the amount of 390.85 TMC allocated by the Tribunal.

358.Arguments on behalf of Union of India Mr. Ranjit Kumar, the learned Solicitor General of India, contended that the purpose of enacting the 1956 Act is to provide a mechanism for adjudication of water disputes arising among the various States and that it is a complete code in itself…Sections 4, 6, 6A and 11 provides for the constitution of a Tribunal to hear water disputes, the power to make a scheme to implement the decision of the Tribunal and further there is a constitutional bar on the jurisdiction of this Court and other courts in respect of such water disputes. Such extensive provisions highlight that the Act is a complete code in itself

359. He submitted that as per the provisions of the Act, once the Tribunal's award has been published in the Official Gazette, the same is final and the mechanism for implementation of this award is set out in Section 6A of the Act and empowers the Central Government to make schemes to implement the said award

He has apprised us that awards were passed by the Krishna Water Disputes Tribunal, Godavari Water Disputes Tribunal and Narmada Water Disputes Tribunal and a scheme for implementation of award was framed when required and only in the case of Narmada Water Disputes Tribunal and no scheme was framed in respect of awards passed by the other Tribunals. According to him, framing of a scheme is not mandatory and the Central Government being alive to its role shall do the needful at the relevant time.

It is further argued that it is the mandate of the 1956 Act that the scheme framed under Section 6A is to be by laying before both Houses of the Parliament and, hence, it has to be treated as a legislative policy and, therefore, the Court, in such a situation, should not issue any direction…He would further urge that Section 6A is a complete code in itself and, therefore, this Court should leave it to the discretion of the Central Government.

X. Our findings on issues of allocation X.1 Principles of apportionment to be followed:

378.Indubitably, the principle of apportionment would apply uniformly to all river basins in a State. The sharing of an inter-state river, as the professed norms of distribution suggest, has to be with the spirit of harmonious disposition and equanimous dispensation. The norms or the factors suggested, understandably, can never be exhaustive and designed only a balanced framework of pragmatic measures to ensure beneficial use of water resources in an inter-State river on need-based application thereof and reciprocal adjustments for common good

396.In other words, the final allocation of the shares in view of this determination would be as hereunder:- Karnataka : 284.75 (270 + 14.75) TMC Tamil Nadu : 404.25 (419 – 14.75) TMC Kerala : 30 TMC….UT of Pondicherry : 7 TMC Environmental Protection : 10 TMC Inevitable escapagaes into sea : 4 TMC Total : 740 TMC

399. The Tribunal directed appointment of a Regulatory Authority to properly monitor the working of monthly schedule with the help of the concerned States and Central Water Commission and further directed that the upper riparian State shall not take any action so as to affect the scheduled deliveries of water to the lower riparian States. The other directions which had been issued by the Tribunal, we think it appropriate to reproduce, are as under:-

401. Now we shall deal with the provisions of Section 6A of 1956 Act. It reads as under:- “Section 6A. Power to make schemes to implement decision of Tribunal. (1) Without prejudice to the provisions of section 6, the Central Government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal.

403. It needs no special emphasis to state that the purpose of Section 6A is to act in the manner in which the award determines the allocation and decides the dispute with regard to allocation or sharing of water. Keeping that in view, we direct that a scheme shall be framed by the Central Government within a span of six weeks from today so that the authorities under the scheme can see to it that the present decision which has modified the award passed by the Tribunal is smoothly made functional and the rights of the States as determined by us are appositely carried out. When we say so, we also categorically convey that the need based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the scheme on any ground

(Dipak Misra) ……………………………………….J. (Amitava Roy) ……………………….………………J. New Delhi; (A.M. Khanwilkar) February 16, 2018