STATE OF ANDHRAPRADESH v. STATE OF KARNATAKAAND ORS.

A The Judgments of the Court were delivered by ii< PATTANAIK, J. River Krishna originates in the State of Maharashtra and flows down through the State of Kamataka 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 B · 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 apprehen- sive of getting their share of water from the river and it is in this context, for '¥ .. sharing the water of Tungabhadra, another river in Krishna Basin, there was an agreement in 1944, settling the dispute concerning the share of the water 1 c 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 utilization of the waters of Krishna basin and in July, 1951, a memorandum of agreement had been drawn up for apportionment of the i1· D available supply of Krishna river system among the four riparian States namely, 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 Reorganisation 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 re-allocation 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 State would come up with major projects, the other States would object to the same. By undertaking the construction of large projects py 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 G 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 T.M.C. respectively. This decision of the Central Govern- ment was not acceptable to the State of Maharashtra and in June, 1963, the H Maharashtra Government had requested the Govt. of India for making a·

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTANAIK, J. 315 reference of the disputes to a Tribunal. Between the period of 1963 to 1969, A 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 re-organisation of the States and re-distribution of the Tungabhadra Valley itself between the States of B 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 Kamataka is the successor State of State of Mysore. Finally on lQth of April, 1969, 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. c 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 the Parliament in exercise of powers conferred under Article 262 of the Constitution of India. The said Tribunal on consideration of the materials placed before it, investigated into the matters referred to it and forwarded a D repo1t to the Central Government, setting out the facts found by it and giving its decisions of the matters referred to it, on 24th of December, 1973, under Section 5(2) of the Act. On receipt of the said report and the decision, the Government of India as well as the three riparian States namely States of Maharashtra, Kamataka and Andhra Pradesh made references to the tribunal for further consideration under Section 5(3) of the Act and the tribunal on E consideration of those references submitted its further report giving such explanations or guidance, as the tribunal deemed fit on the matters referred to it under Section 5(3) on 27th of May, 1976. It may be stated that the 01iginal report dated 24m of December, 1973 contained the Final Order of the tribunal and the further report dated 27th of May, 1976 also contained the modified F Final Order, which modification was necessary because of explanations given to references made by different States under Section 5(3) of the Act. The Central Government construed the aforesaid Final Order to be the decision of the tribunal and accordingly, published the same in the Extraordinary Gazette dated 31 81 of May, 1976 and on such publication, the said Final Order has statutorily become final and binding on the parties to the dispute. G

In the Repo1t of the tribunal as well as in the further Report, submitted by the tribunal, two Schemes have been evolved - Scheme "A" and Schem~ "B". On the basis of agreement between all the States, the availability of water in Krishna basin was found out at 2060 T.M.C. on 75% dependability. The H

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A tribunal under Scheme "A" made the mass allocation in favour of three riparian States of the dependable flow at 75% which had been an"ived at 2060 T.M.C., indicating that the State of Maharashtra shall not use in any water year more than 560 T.M.C., the State of Kamataka shall not use in any water year more than 700 T.M.C. and the State of Andhra Pradesh shall not use more than 800 T.M.C in any water year. It had also indicated that the State of Andhra Pradesh which is the last riparian owner, will be at liberty to use the remaining water that may be flowing in the river Krishna but by such user the State shall not acquire any tight whatsoever in respect of the excess quantity, which it uses beyond the allotted quantity of 800 T.M.C. It is to be stated that in course of the proceedings before the tribunal, several schemes had been submitted by the States for the examination of the tribunal and the tribunal considered all such schemes and had finally evolved the Scheme "A". On 4th of May, 1973, all the three States subrni tted their views under the signature of their respective counsel on the method of allocation to be adopted by the tribunal which was marked before the tribunal as Exhibit MRK- 340 and under that document the parties had called upon the tribunal not only to have mass allocation of utilisable dependable flow at 75% but also for allocation on percentage basis in surplus as well as deficit years of flow and restrictions with regard to the use and the nature of such restrictions was to be decided by the tribunal. It also called upon the tribunal to have a joint control body to monitor the said allocation on percentage basis in surplus as well as deficit years of flow. For E giving effect to the allocation on percentage basis in surplus as well as deficit years of flow, the tt"ibunal evolved the Scheme "B" and indicated the same in its original report as well as in its fmther report. But for proper implementation. of Scheme "B", the constitution of the Krishna Valley Authot"ity was abso- lutely necessary and the State of Andhra Pradesh not having agreed for F constitution of the controlling authority, the tribunal did not make Scheme "B" as part of its Final Order though the said Scheme "B" was a part of its original report as well as the further report and thought it fit to leave the matter either to the good sense of the rival States or for the Parliament to make a legislation to that effect under Entry 56 of List I of the Seventh Schedule to the Constitution. The State of Karnataka however being of the opinion that G Scheme "B" having formed a part of the decision of the tribunal was also required to be notified by the Central Government under Section 6 of the Act, making it binding on the parties, and the same not having been done, filed the present suit on 1" of March, 1997, impleading the State of Andhra Pradesh, the State of Maharashtra and the Union of India as patty defendants, invoking H the jurisdiction of this Court under Article 131 of the Constitution, seeking

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relief for a decree that the surplus water in river Krishna i.e., in excess of 2060 A TMC at 75% dependability be shared in accordance with the determinations and directions of the tribunal, contained in its report and further report and ; a declaration that defendant No. 1 State of Alldhra Pradesh is not entitled to insist on its right to use the surplus water i.e., in excess of 2060 TMC at 75% dependability, so long as Scheme "B" framed by the tribunal is not fully implemented and a mandatory injunction to the defendant No. 3 Union of B India to notify Scheme "B" framed by the tribunal and make provisions for establishment of a Krishna Valley Authority for implemen~tion of the directions of the tribunal in its Report and Further Report. The State of Kamataka has also prayed for an order of injunction, restraining defendant No. 1 from continuing to execute several other projects like Telgu Ganga, c Srisailam Right Bank Canal, Srisailam Left Bank Canal, Bheema Lift hriga- tion and Pulichintala Projects, until Scheme "B" framed by the tribunal is effectively implemented. The cause of action indicated in the plaint is the refusal of defendant Nos. 1 and 2 to consent to the sharing of smplus waters in excess of 2060 TMC and for implementation of Scheme "B". D According to the assertions made in the plaint, the dispute centres round the interpretation 'scope and extent of the decision of the tribunal, and particularly Clause V (c) thereof' as well as the refusal of the first defendant for implementation of Scheme "B" drawn up by the tribunal and the further claim of the State of Andhra Pradesh to use the surplus water in excess of 2060 E T.M.C. by constrncting large-scale permanent projects. The plaintiff, State of Kamataka in its plaint, broadly refened to the adjudicatio.a made by the tribunal, indicating therein that the tribunal considered the question of alloca- tion of 2060 T.M.C., which in tum was determined on the basis of 75% dependable flow of river Krishna up to Vijaywada and allocated to the three F States of Maharashtra, Karnataka and Andhra Pradesh for their beneficial use to the extent provided in Clause V i.e. not more than 560 T.M.C., 700 T.M.C and 800 T.M.C. respectively. It was also averred in the plaint that the tribunal was of the opinion that for fuller utilisation of water of river Krishna, provisions would be made both for surplus and deficit years and accordingly, evolved Scheme "B" but since constitution of the Krishna Valley Authority G was the back-bone of the aforesaid Scheme "B" and the State of Andhra Pradesh did not agree for the setting up of the said Krishna Valley Authority, the tribunal left the question of enforcement of such scheme to the good sense of the parties or the wisdom of Parliament. The State of Kamatak.a has also averred that clarificatory applications were filed before the tribunal under H

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A Section 5(3) of the Act in respect of Scheme "B" and the tribunal did entertain )If the same and did answer the clarifications sought for by giving explanations and/or modifications to the original scheme and, therefore, the tribunal , itself accepted the position that Scheme "B" contained in the original repo1t is also a decision of the tribunal which could be clarified or explained on an application being filed under Section 5(3) of the Act. The plaint then, narrates B as to how in the further report dated 27th of May, 1976, the tribunal investigated into and determined the shares of respective States in the surplus flows in excess of 2060 T.M.C. and how ultimately a comprehensive Scheme ..,,. "B" was drawn up for fuller and better utilisation of all the waters in every water year and yet the same could not be given effect to as the tribunal thought c it improper to constitute an authority in the absence of agreement between all the riparian States. It is in this context the tribunal had observed that it is unwise and impracticable to impose an administrative autho1ity by a judicial decree without the unanimous consent and approval of the parties. According to the plaintiff, since Scheme "B" provided for a fuller and better utilisation -1 -4°

of the water of river Krishna, which the tribunal has itself evolved after deeply D pondering over the matter, the same must be held to be a decision of the tribunal, required to be published by the Union Government under Section 6 of the Act and since the parties had not agreed for constitution of an authority when the uibunal gave its further report, it could not be made a part of the

E Final Order. But according to the plaintiff, Section 6(A) having been inserted 'r'- - into the Act, enabling the Central Government to frame Scheme or Schemes to give effect to the decision of the tribunal including establishment of an authority, there exists no legal impediment for enforcing the said Scheme "B" t and appropriate directions could be given by the Court to the Central Government for constituting the authority and give full effect to the Scheme ._ F "B". The plaintiff also averred in the plaint how from time to time the State of Karnataka had been requesting the State of Andhra Pradesh as well as the ~ Union Government for implementation of Scheme "B" and how the said State of Andhra Pradesh, defendant No. 1 has refused to agree for implementation of Scheme "B".

G The defendant No. l, State of Andhra Pradesh in the written statement filed, took the preliminary objection that the adjudication sought for by the ·.,__ le

plaintiff is itself a water dispute and, therefore, the suit under Article 131 is barred in view of the mandate under Article 262 of the Constitution read with Section 11 of the Inter-State Water Disputes Act. The further stand taken by • H defendant No. 1 is that it is only the Scheme "A" which can be held to be the

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decision of the tribunal which comes into operation on the date of publication of the same under Section 6 of the Act and whatever the tribunal has observed in relation to framing of Scheme "B", the same is merely tentative and obiter observation and cannot be held to be a part of the decision of the tribunal and as such is un-enforceable. It has also been averred that the tribunal itself having indicated that the Scheme "B" could be implemented either by agreement of the parties or by legislation by the Parliament and the parties having not agreed to, the Comt would not be competent to direct the Parliament to have a legislation and, therefore, the relief sought for cannot be granted in the suit. It has been further averred that in view of Clause V(c) of the Final Order, which has been notified in the official Gazette, the State of Andhra Pradesh is entitled to use any water, which may be flowing in the river c Krishna, so that the same would not be wasted by entering tl1e sea and, therefore, the prayer for injuncting the State of Andhra Pradesh in going ahead with several projects is not entertainable. The defendant No. 1 further asserts that Scheme "A" having been acted upon by tl1e parties for over two decades and under the said Scheme review having been provided for after 31" of May, D 2000, the question of implementation of Scheme "B" at this length of time is not only inequitable but also wholly uncalled for. While refuting the assertion made in different paragraphs of the plaint, it has been reiterated tl1at Scheme "B" never formed part of tl1e decision and as such question of its implemen- tation does not arise and further Section 6(A) of tl1e Act not being there on the statute book on the date the rep01t of the tribunal was published, the same E is not relevant in the context. According to Defendant No. 1, the plaintiff has attempted to raise an imaginary dispute in an attempt to invoke the jurisdiction of this Hon'ble Court so that tl1e attention of all concerned is diverted from the illegal projects continued to be executed by it contrary to the decision of the tribunal and the suit lacks bona fides. It has also been averred that the so- F called Scheme "B" was merely a tentative one and witl1out its back-bone namely tl1e constitution of tl1e Monitoring Authority called Krishna Valley Authority, it cannot be held to be a Final decision of the tribunal having any binding effects. So far as different pn:~jects undertaken by the State of Andhra Pradesh, it has been averred that under the tripartite agreement even before the Final decision of the tribunal, the plaintiff voluntarily agreed for supply of 15 G TMC of drinking water to Madras, which is the Telgu Ganga Project and, therefore, the plaintiffs objection on tl1is score is baseless and frivolous. In respect of otl1er projects objected to by the plaintiff, it has been averred that the tribunal itself has granted tl1e liberty to the State of Andhra Pradesh to utilise the excess "t3-ter flowing in river Krishna and, therefore, there has been . H

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A no infraction of the said liberty granted by the tribunal. It has also been further ~ averred that the tribunal in its further report having adopted Scheme "A" as its Final decision, it is only that Scheme which is binding on the parties and whatever has been stated as Scheme "B" is not the decision of the tribunal.

The State of Maharashtra, Defendant No. 2 also had taken the stand that B the suit for directing implementation of Scheme "B" is not maintainable inasmuch as the implementation of the same depends upon the consent of the States and the Court cannot force the States for giving its consent nor can the \ Court direct the Parliament to have a legislation for the same. The defendant No. 2 however agreed with the State of Kamataka~so far as the allegation of c appropriation of the remaining water of the river Krishna in a permanent way by constmcting projects like Telgu Ganga, Srisailam RBC, Srisailam LBC, Bhima Lift and Pulichintala by the State of Andhra Pradesh, Defendant No.

1Copy pinpoint1. The positive stand of the State of Maharashtra is that until and unless a chain of ca1ry over reservoirs in entire Krislma basin are erected, the question of i ., D implementation of Scheme "B" would not arise and since the said carry over reservoir have not been constructed as yet, the prayer for implementation of Scheme "B" is premature. The said defendant also averred that the relief sought for is essentially a review of the Final Order and there were no circumstances justifying the prayer for implementation of Scheme "B", particularly, when a review is provided after 31" of May, 2000, which is quite E near. The State of Maharashtra defendant No. 2 reiterates the stand of the t'!' Andhra Pradesh, defendant No. 1 to the effect tliat it is the tiibunal's decision in te1m of Scheme "A", which is final and binding order on all States and not the framing of Scheme "B" contained in the report of tl1e said ti·ibunal. - '

F Union of India, defendant No.3, in its written statement took the stand that the suit as framed is not maintainable by virtue of Section 11 of the Act ,._ read with Article 262 of t11e Constit:Ution. So far as the user of water by the State of Andhra Pradesh is concerned, the Union Government contends tllat the award having set out in gross the quantity of water which could be used in a given water year by Maharashti·a and Kamataka and Andhra Pradesh wit11 G the liberty to Andhra Pradesh to use the surplus water, tlle said liberty does not confer or create any tight in the State of Andhra Pradesh and such user would be subject to right of upper riparian States namely Maharashtra and Y· Kamataka. The Union Govenunent furtller asserts t11at tlle award does not give a project-wise allocation but does tlle gross allocation and each of tlle State H is bound to give effect to t11e award given by the tribunal. On t11e averments •

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTANAIK, J.J 321 of the other paragraph of the plamt, the Union Government has indicated that A the same are all matter of record and do not require any further elucidation.

On the pleadings of the parties the following issues have been framed:

"I. Whether the suit is ball'ed by Article 262(2) of the Constitution read with Section 11 of the Inter-State Water Disputes Act, 1956? B (A.P.)

2Copy pinpoint2. Whether the suit is liable to be dismissed as not disclosing cause of Action? (A.P.)

3Copy pinpoint3. Whether the suit is liable to be dismissed as seeking relief which c .... are contrary to the Report and Decision of the KWDT? (A.P.)

,. t 4. What is the "decision" of the KWDT binding on the parties under Section 6 of the Act in relation to:- D (a) Scheme 'B'

(b) Use of surplus water as contemplated in Clause (V)(c) read with Clause XIV(A) of the Award.

5Copy pinpoint5. Whether reference to Scheme 'B' in the l" and the furtherreport of the KWDT, disclose a complete scheme, and whether such scheme is capable of implementation at this stage, in view of circumstances refened to in para I I of the preliminary objections and par.a I of the parawise reply in the written Statement of Andhra Pradesh? (A.P.)

6Copy pinpoint6. Is it just, fair and equitable to implement Scheme 'B' at this stage? (MAH).

7Copy pinpoint7. Whether in view of the fact that Scheme 'B' does not form part of the "Final Order" of KWDT in the original report under Section 5(2) and the Further Report under Section 5(3) of the Act, the suit seeking the implementation of Scheme 'B' is maintainable? (A.P.)

8Copy pinpoint8. Whether insertion of Sec.6A in 1980 in the ISWD Act, 1956, ipso facto entitles Kamataka to seek implementation of Scheme 'B' as refell'ed.to in the reports of the Tribunal by framing a scheme? (KAR - as modified by A.P.) H

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9Copy pinpoint9. Whether the right of And.bra Pradesh to utilise surplus waters in terms of the liberty granted by the decisions of the Tribunal, is reviewable in the present proceedings? (A.P.)

10Copy pinpoint10. Whether the liberty to use surplus water under the decision of the KWDT precludes utilisation of surplus water by A.P., by means B of projects of permanent nature? (KAR as modified by A.P.)

11Copy pinpoint11. Whether the decision of the KWDT entitles the State of Andhra Pradesh to execute the following projects :- (KAR - as modified by A.P.) L

c (a) Telugu Ganga Project

(b) Srisailam Right Bank Canal .... (c) Srisailam Left Bank Canal i .. D (d) Bhima Lift Irrigation

(e) Pulichintala Diversion

12Copy pinpoint12. Is not the suit of the Plaintiff unnecessary and premature as there can be review of the orders of the Tribunal after A.D. 2000? (MAH) E

13Copy pinpoint13. To what reliefs, if any, the Plaintiff is entitled to? (A.P.)"

ISSUES 4, 5 AND 7.

These three issues are taken up together as they are inter-linked and in fact the fate of the suit largely depends upon the answer to the aforesaid issues. Mr. Nariman, the learned senior counsel, appearing for the plaintiff- State of Kamataka contends that in the context of the water dispute which had been refeITed to by the Central Government to the tribunal under Section 4 of the Act and the said. tribunal having investigated the matters refeITed to it and framed two schemes for distribution of water in river Krishna amongst the three riparian States, giving immediate effect to Scheme "A" and postponing the date of giving effect to, in respect of Scheme "B" as there was no agreement between the riparian States for the constitution of the Monitoring Authority, the said Scheme-"B" cannot, but be held to be the decision of the tribunal and as such was required to be notified by the Union Government H under Section 6 of the Act, making the same binding on all the three States.

- STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTANAIK, J.]

According to Mr.· Nariman, th~ Act conceives of a report to be given by the tribunal setting out the facts as found by it and giving its decision on the matters referred to it and evolving Scheme "B" being an adjudication of the 323 A

respective share of States in the waters of river Krishna, both in relation to the surplus water year and the deficit water year, the said adjudication must be held to be the decision of the tribunal and the Final Order containing Scheme B "A" alone cannot be held to be the decision of the tribunal. The Central Government, therefore failed to perform its mandatory duties under Section 6 in publishing only the Final Order which is merely a mass allocation in favour of three states at 75% dependability and not the adjudication of the entire dispute which had been referred to the tribunal. Mr. Nariman further con- tended that the tribunal in its report dated 24.12.73 having reached the c conclusion - "After deeply pondering over the matter we have come to the conclusion that it would be better if we devise two schemes for the division

- of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Scheme "A" and "B". Scheme "A" will come in operation on the date of the publication of the D decision of this Tribunal in the Official Gazette under Section 6 of the Inter- State Water Disputes Act. Scheme "B" may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter- State administrative authority which may be called the Krishna Valley Author- ity by agreement between them or in case such an authority is constituted by legislation made by Parliament." It is difficult to conceive that Scheme "B" E was not the decision of the tribunal. In fact the tribunal itself came to the conclusion that Scheme "B" is more comprehensive and provides for more equitable mode of utilisation of the waters of river Krishna and yet refrained from making it a part of the Final Order because a Monitoring Authority could not be constituted due to lack of agreement between the riparian States nor was F it wise and practical to impose a Monitoring Authority without the consent of the parties and in this view of the matter Scheme "B" must be held to be a decision of the tribunal adjudicating the shares of each of the States in the water of river Krishna, making the apportionment, both in relation to SUI}Jlus as well as the deficit. Mr. Nariman, the learned senior counsel, also urged that the three States Maharashtra, the then Mysore (presently Kamataka) and G Andhra Pradesh having themselves consented to, and having prayed for the method of allocation to be adopted by the tribunal to t11e effect : (i) mass allocation of utilisable dependable flow at 75%, (ii) allocation on percentage basis of water in surplus as well as deficit years of flow, (iii) restrictions with regard to use and the nature of restrictions to be decided by t11e tribunal and H

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A (iv) constitution of a Joint Control Body to give effect to the decision of the tribunal, and Scheme "A" being an adjudication of item (i) above and Scheme "B" being adjudication of items (ii), (iii) and (iv) above, it is unthinkable that the Scheme "B" is not the decision of the tribunal. Mr. Nariman also contended that under Section 5(3) of the Act after considering the decision of the tribunal if Central Government or any State Government is of the opinion that any B explanation or further consideration is needed,.then a further reference could be made and such a reference/clarification, having been made by the State of Kamataka in relation to Scheme "B" and the tribunal itself having entertained and answered the same, it is no longer open to hold that Scheme "B" is not a decision of the tribunal. It is in this connection, Mr. Nariman also contended c that though the State of Maharashtra and State of Kamataka, also were heard by the tribunal on the further clarifications sought for by . the State of Kamataka, at no point of time they had taken the stand that Scheme "B" is not a decision and as such a clarification under Section 5(3) in respect of the same was not entertainable. In this view of the matter, there is no other option than to hold that Scheme "B" is also the decision of the tribunal, providing for a better and fuller equitable distribution of the water in river Krishna and the issue in question must be answered in favour of the State of Kamataka. Mr. Nariman also urged that the Constitution Bench of this Court in Cauvery Water Disputes Tribunal, [1993] Supp 1 SCC 96, has held that even the interim order passed by the tribunal must be deemed to be a report and a decision within the meaning of Section 5(2) of the Act and in this view of the matter the final aqjudication evolving Scheme "B" must be held to be a decision of the tribunal and as such is required to be published by the Central Government under Section 6 of the Act.

F Mr. Parasaran, the learned senior counsel, appearing for Defendant No. 1, State of Andhra Pradesh on the other hand contends that the plaintiff in his plaint also has not averred that Scheme "B" is a decision of the tribunal. According to the learned counsel the plaint read as a whole indicates that the plaintiff wanted enforcement of both Scheme "A" and Scheme "B" and thus the relief sought for is amalgam of both these Schemes favourable to the plaintiff- State and not necessaiily the implementation of Scheme "B" and this has purposely been done as the plaintiff was well aware of the fact that the said Scheme "B" does not form a part of the decision. In this connection, the learned counsel relied upon the assertions made in paragraph 2(b) of the plaint, ·)" which really deals with Scheme "A" and not Scheme "B". He also relied upon the assertions made in paragraph 6(1) wherein the plaintiff itself has averred

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that the tribunal made Scheme "A" as part of its final decision and left the A Scheme "B" to the good sense of the parties or to the wisdom of Parliament. Mr. Parasaran also with reference to assertion made in paragraph 21 of the plaint contends that according to the plaintiff the tribunal merely expressed hope for getting the consent of all the States for adoption of Scheme "B" and, therefore, it was not a decision of the tribunal. Mr. Parasaran also strongly relied upon the assertions made in paragraph 23 to the effect "as submitted earlier, the Tribunal, while adjudicating the claims, has declared the rights of _.,, basin states in the surplus waters under Scheme "B" although such scheme was not made pmt of the decision" and contends that the aforesaid admission on the part of the plaintiff clinches the matter and Scheme "B" cannot be held to be a decision of the tribunal. In fact Mr. Parasaran submitted that in view of the aforesaid averment in the plaint and in view of the provision contained in Order 12 Rule 6, the suit should be dismissed straight-away. Mr. Parasaran also urged that the plaint itself is merely for sharing excess water as indicated in Scheme "B" having derived the benefits of the mass allocation under Scheme "A" and is thus not a suit for implementation of Scheme "B" as contended by Mr. Nariman, the learned counsel appearing for the plaintiff- State. According to Mr. Parasaran, constitution of a Monitoring Authority like Krishna Valley Authority being the back-bone of Scheme "B" and the tribunal having failed to get the consent of parties to constitute such authority and there being no law by the Parliament under Entty 56 of List I of the Seventh Schedule, at the most it can be said that the tribunal had conceived of a more equitable scheme like Scheme "B" and had given its blue print, but the same cannot partake the character of a decision of the tt·ibunal under Section 5(2) of the Act, so as to make it binding on all parties concerned. According to the learned counsel Mr. Parasaran, it is that adjudication or order made by the tribunal which can be implemented independently of any agreement or law made by Parliament, as in this case the Final Order, containing Scheme "A" -A\ which can be held to be the decision of the tt·ibunal and not any observation or order made in the report in course of the proceedings. Mr. Parasaran urged that the tribunal in its Furtl1er Report Exhibit PK2 having categorically stated "we do not think it proper that Scheme "B" should be implemented by our order". It is futile to contend that the said Scheme "B" is the decision of the tribunal. Mr. Parasaran further contended that in the report itself, tl1e tribunal having considered the two schemes- Scheme "A" and Scheme "B" and under Scheme "B", the moment the scheme is given effect to, the Scheme "A" ceases to be operative and effective and the tribunal having ultimately opted to make Scheme "A" as Final Order, which could be implemented, it is not possible H

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A to contend that Scheme "B" evolved by the tribunal is also a decision of the l

tribunal.

Mr. Andhyarujina, the learned senior counsel, appearing for the State of Maharashtra, Defendant No. 2 supported the stand of the State of Andhra Pradesh and contended that Scheme "B" cannot be held to be a decision of B the tribunal. According to the learned counsel, what can be held to be a decision of the tribunal is what the tribunal himself considered to have binding effect and in this view of the matter, the tribunal having itself said that it is Scheme "A" which formed the part of the Final Order and which can be implemented, immediately on being notified, it is abundantly clear that the c tribunal did not think Scheme "B" to be its 'decision' though in course of proceedings, it might have discussed about the feasibility of such a scheme and its efficacy. Mr. Andhyarujina, the learned senior counsel, ultimately urged that it is only t11e Final Order of tl1e tribunal, containing Scheme "A", which can be held to be the decision of the tribunal. D Mr. Salve, the learned Solicitor General, appearing for the Union Government, reiterated the stand taken by the two other defendant States and submitted that the tribunal itself has never thought Scheme "B" to be its decision and the expression "decision" has to be interpreted with reference to .the water dispute defined in Section 2(c), the complaints and reference made under Section 3 and the adjudication provided for in Section 5. A combined reading of the aforesaid provisions of the Act, according to Mr. Salve, indicates that it is that adjudication of the uibunal which is capable of being implemented on its own, which can be held to be the decision of the tribunal, binding on the parties and not observations made or consideration of several proposed schemes by the uibunal itself, in course of the proceedings. According to Mr. Salve, the tribunal was qui5e conscious of the fact that it is not possible to implement Scheme "B" unless and until a Monitoring Author- ity could be provided for the same and such authority could be provided for either by the consent of the patties or by legislation made by the Parliament and since both were lacking, tl1e tribunal advisedly, did not make it a part of the Final Order to be its decision and in this view of the matter, Scheme "B" evolved by the tribunal cannot be held to be a decision.

Before examining t11e rival stand of the parties on this contentious issues in the light of the pleadings as well as the documents refen-ed to, it may be necessary to indicate t11e scheme of the Act. The Inter-State Water Disputes

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Act, 1956, refened to as 'the Act' has been enacted by the Parliament in the A seventh year of the republic as the law providing for adjudication of any dispute or complaint with respect to the use, distribution or control of the water in any inter-State river, as envisaged under Article 262(1) of the Constitution. Section 2(c) defines water dispute and Section 3 of the Act provides under what conditions, a State can make a complaint and request to the Central B Government for refening a dispute to a tribunal for adjudication. Section 4 provides for constitution of the tribunal by the Central Government and Section 5 provides for adjudication of the dispute by the tribunal. Section 5(2) empowers the tribunal to investigate the matters referred to it and then forward to the Central Government, a report, setting out the facts as fow1d by it and giving its decision of the matters refened to it. Thus the report required to be c given by the tribunal after investigation under Section 5(2) of the Act must contain the facts as found by it as well as the decision of the matters referred to the tribunal. A distinction, therefore, has been drawn by the legislature on the two expressions used in Section 5(2) of the Act, namely 'facts as found' and 'decision of the matters refened to'. The cmcial question which has to be answered in the aforesaid three issues, which have been taken together is whether Scheme "B" considered and evolved by the tribunal would come within the expression 'facts as found' or the 'decision of tribunal on the matter refened to'. It is in this context, what was the 'matter refened to the tribunal' assumes great significance. The Govenunent of India in its letter dated lO'b of April, 1969 made a reference to the tribunal for adjudication of the water dispute regarding the inter-State river Krishna and the river valley thereof emerging from the letters of the Mysore Government dated the 29 1b January, 1962 and the 8'b July, 1968, the letters of the Maharashtra Government dated the 11th June, 1963 and the 26th August, 1968 and the letters of the Andhra Pradesh Government dated the 21'1 April, 1968 and the 21" January, 1969. TI1e F tribunal in Chapter II of its report, swnmarised the complaints of each of the Governments and formulated the point of dispute for adjudication to the effect "that the parties want an equitable apportionment of the Krishna waters for their beneficial uses, so that they may know the limits within which each can operate and may plan their water resources development accordingly" arid it further stated as to how and on what basis the equitable apportionment should G be made. On the basis of the rival stand of the parties, the tribunal framed issues and sub-issues on 14th of April, 1971 and for the present discussion, we are concerned with issue No. II, as Issue No. 1 relates to the question whether there was any concluded agreement regarding allocation of the waters of river Krishna and whether such agreement was enforceable and was still subsisting H

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A and operative upon the States concerned. Issue No. II framed by the tribunal is to the effect that what directions if any, should be given for the equitable apportionment of the beneficial use of the waters of Krishna river and the river valley. Under the said issue, there are as many a~ eight sub-issues and sub- issue 8 was to the effect "what machinery if any, should be set up to make available and regulate the allocation of water, if any, to the states concerned or otherwise to implement the decision of the tribunal". This Issue No. II has been discussed in Chapter IX of the Report dated 24111 of December, 1973, which has been marked as Exhibit PKl and one of the sub-issue namely, on what basis should the available water be dete1mined?, the tribunal considered at length the several data and finally an agreement between the parties was arrived at that 75% dependable yield of the river Krishna upto Vijaywada is 2060 TMC, which has been indicated in Chapter IX itself. The tribunal then proceeds with embarking upon the difficult and delicate task of division of waters of river Krishna and what directions ultimately could be given for equitable apportionment of the beneficial use of the waters of Krishna river and the river valley. In Chapter XIV of the report dated 24'h of December, D 1973, Exh.PKl, the tribunal ultimately summarised as to how each State claimed equitable share in the dependable flow and also in the water in excess over the dependable flow. It also considered the evidence of expert witnesses, adduced by the parties, indicating the advantage that will accrue by carry over storage, made in the Krishna basin. The tribunal also thought over the matter as to whether the scheme for division of water should endure forever or there should be a room for review and ultimately was of the opinion that a review and modification of the allocation may become necessary to keep pace with the changing conditions. It also provided for a review of the order of the tribunal at any time after 31'' of May, 2000. After making such general observations, it proceeded to consider the scheme of division of water and it did notice the agreed views of all the three states, submitted on 4'h of May, 1973, indicating that there should be a mass allocation of utilisable dependable flow at 75% and there should be allocation on percentage basis of water in surplus ·as well as deficit years with certain restrictions with regard to the use to be decided by the tribunal and, there should be a joint control Body to give effect to the decision of the tribunal. The tribunal indicated the merits and demerits of the schemes given by each of the states consisted of two pa1ts and part II related to the constitution and powers of the Monitoring Authority, called the Krishna Valley Authority and though initially, the counsel for the parties had agreed upon the constitution of Krishna Valley Authority, but after the matter was heard again, the State of Andhra Pradesh categorically

STATE OF KARNATAKA AND ORS. v. STAfE OF A.P. [PATTANAIK, J.) 329 indicated that no consent can be given to set up Krishna Valley Authority. A After noting the rival contentions of the parties on the question of constituting an authority and the best tradition as to how the Federal Structure functions and how the states are bound to obey the law made by the Parliament, it also came to the finding that the matter of setting up of an authority becomes the back-bone of the decision and an integral part of it and unless that can be given B effect to, it will be of no use to have a decision as envisaged under Scheme "B" for equitable allocation of water amongst the three riparian states. TI1e tribunal in no uncertain terms, came to the conclusion that it will not be proper -l to set up any authority without the consent of the parties, and, therefore, the so-called document Exh.MRK-340 provided no assistance notwithstanding the fact that it was agreed to by the counsel of all the three states on 41h of May, c

1973. Having failed in its attempt to reach a decision, containing the principle of allocation, envisaged under the agreed document Exh. MRK 340, the tribunal thought it appropriate to evolve the two schemes called Scheme "A" and Scheme "B'' and at Page 166 of Exh. PKl, the tribunal itself made it crystal clear that Scheme "A" will come in operation on the date of publication D of the decision of the tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956, and Scheme "B" may be brought into operation in case the States themselves constitute an Inter-State Administrative Authority, which may be called the Krishna Valley Authority by agreement between them or in case, such an authority is constituted by legislation made by Parliament. The aforesaid conclusion of the tribunal, unequivocally indi- E cates that it is Scheme "A" alone which has been made the decision of the tribunal and the tribunal nomenclatured the same to be the Final Order, which order in its tum has been notified in the Official Gazette by the Central Government under Section 6 of the Act. At Page 182 of the Report Exh. PKl, the tribunal itself has given a complete picture to facilitate further discussion p by setting out different clauses of the Final Order which according to the tribunal embodies all the provisions on the subject of app01tionment of the water of river Krishna between the states of Maharashtra, Mysore and Andhra Pradesh and then it is stated "these provisions of the Final Order cover all matters mentioned in Issue No. II and its sub-issues and issue no. II, is, therefore, decided as provided in these clauses of the Final Order." After G deciding issue no. II, as aforesaid, and thereafter deciding issue IV(B) in the next paragraph, the tribunal then proceeds to examine the efficacy of Scheme "B". It is no doubt true that Scheme "B" is more beneficial and provides for more beneficial and fuller utilisation of waters of river Krishna but the tribunal itself has not considered the same to be a part of its decision, which could be H

p. 330 Copy page pinpoint

A implemented by a notification wider Section 6 of the Act. It may be noticed at this stage that in Cauvery Water Dispute Case (1993 (Suppl.) 1 SCC 96) while considering the question as to what formed the decision of the Tribunal under Section 5(2) of the Act this Court examined the interim order which had been passed by the Tribunal and came to the conclusion that if the order is not meant to be merely declaratory in nature but is meant to be implemented B and given effect to by the parties, then it would constitute a decision within a meaning of Section 5(2) and is required to be published by the Central government under Section 6 of the Act. Applying the aforesaid ratio to the case in hand and in view of the unequivocal statement made by the Tribwial while deciding Issue No.II to the effect that Issue No. II and its sub-issues are c decided as per the clauses of the final order which contains Scheme 'A', it is difficult to sustain the argument of Mr. Nariman, appearing for the plaintiff- State that Scheme 'B' also is a decision of the Tribwial. As has been indicated earlier that in course of the proceedings before the Tribunal all the party States, no doubt, have consented to the points of dispute to be resolved by the D Tribunal as per Exhibit MRK 340. But the Tribunal itself records the finding that on account of non-agreement between the parties it has not been possible to reach a decision on the principle of allocation agreed to under MRK 340 and, therefore, the Tribunal thought it fit to evolve Scheme 'A' which could be implemented on its own, the same being notified under Section 6 of the Act. In terms of the judgment of this Court in Cauvery Water Disputes case, E Scheme 'B' had not been meant to be implemented and given effect to by the parties to the dispute and as such cannot be a decision of the Tribwial under Section 5(2) of the Act. It can be held to be 'facts found' in the report submitted. The Tribunal in considering different proposals submitted by the States came to hold "unless a joint control body or inter State authority was F established, it would be difficult to divide the waters of river Krishna between the parties in every water year on the lines suggested by the parties." (at page 161 Ex.PK-1).

The Tribunal also recorded a finding:

G "It is not possible for us to take the view that we can infer the consent of the parties from Ex.MRK-340 filed on 4tb May, 1973."

In its further Report after answering the references made to it under Section 5(3) of the Act, in Exhibit PK-2 the Tribunal negatived the contentions :-· H of the State of Karnataka that allocation of water under Scheme "A" is not the

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTANAIK, J.) 331 .. • Scheme for the division of water in accordance with the provisions of the Act. In said PK-2 at page 24 the Tribunal did observe: A

"The apportionment of water of the inter-State river Krishna must be adapted to the peculiar characteristics of the river system. We may also point out that until 1971-72 less than 1000 T.M. C. was utilised B in the entire Krishna basin, and until the entire dependable supply of 2060 TMC is fully utilised, the complaint regarding the apportion- ment of the remaining water is unrealistic."

In answering Clarification No.III filed by the State of Kamataka, requiring the Tribunal to give direction for implementation of Scheme "B" the c Tribunal, no doubt, drew up a complete Scheme "B' and came to the conclusion that Scheme "B' provides for a fuller and better utilisation of the Waters of river K.tishna, but hasten to add "We cannot make Scheme "B" part of our final order as requested by the learned counsel for the Government of India because the final order should contain only such provisions as may be D implemented independently of any agreement or law made by Parliament." (see Ex.PK 2 at page 26)

In its furtl1er report Ex .. PK-2 after considering the question of abolition of Tungbhadra Board the Tribunal held : E "In these circumstances we do not think it proper that Scheme 'B' should be implemented by our order."

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

p. 332 Copy page pinpoint

A Scheme 'A', the said Scheme 'B' cannot be held to be a decision of the Tribunal.

It is also true, as contended by Mr. Nariman that the Tribunal did entertain clarification sought for by the State of Kamataka under Section 5(3) of the Act to some of the clauses in Scheme 'B' and a party is entitled to B invoke the jurisdiction of the Tribunal under Section 5(3) only in respect of a decision but that by itself, in our opinion, will not clothe Scheme 'B' with the character of a decision of the Tribunal. Mr. Nariman may be right in his submission that there has been an adjudication by tlie Tribunal in evolving Scheme 'B' indicating the manner in which tlie water of said river Krishna c could be shai·ed by three States in surplus and deficit water year, but every adjudication made by the Tribunal cannot be held to be a decision within the meaning of Section 5(2) unless such adjudication is capable of being imple- mented on its own and applying the aforesaid test Scheme 'B' not being 1' - capable of being implemented on its own so long as the back bone of tlie Scheme, namely, the constitution of Monitoring Authority is not agreed to, the said Scheme cannot be held to be a decision within the meaning of Section 5(2) of the Act. In the aforesaid premises, we answer aforesaid three issues by holding that the Scheme 'B' framed by the Tribunal is not the decision of the Tribunal and as such, was not required to be notified under Section 6 and, consequently cannot be enforced at the behest of the plaintiff. The issues are accordingly answered against the plaintiff.

Though we have come to the aforesaid conclusion yet we think it approp1iate to notice that the disputes for sharing waters of an inter-State river are not easy to be solved. A Tribunal presided over by a judge of tl1is Court F took several years in formulating its conclusion. For arriving at its conclusion the Tribunal has attempted several negotiations between the rival States and also has taken into account the experts' evidence adduced by the parties. In evolving the two Schemes - Scheme 'A' and Scheme 'B' it has also taken into account several schemes produced by each of tlie State. The Tribunal also thought while evolving Scheme 'B' that though it cannot be implemented as G it was unable to constitute the Monitoring Authority on account of lack of consent between the parties yet it placed on record the said Scheme 'B' which according to the Tribunal is a better one for fuller utilisation of water resources of Krishna basin amongst the three States. While placing Scheme 'B' in its Rep011 the idea was that the labour of the Tribunal in evolving the Scheme H would not be totally lost and that is why it hoped that the parties may agree

p. 333 Copy page pinpoint

for constituting an authority or if they fail to agree the Parliament also could make a law but unfortunately, neither of the two contingencies has happened. Though Scheme 'B' has been held by us not to be a decision of the Tribunal and as such, is not capable of being implemented by a mandatory injunction from this Court yet we have least hesitation to agree with the findings of the Tribunal itself that said Scheme 'B' provides for a fuller and better utilization of the water resources in river Krishna and in future if the question of allocation of river Krishna is gone into by any auth01ity then the said authority will certainly look to the Scheme 'B' which had been evolved on the data available then and acceptability of the same will be duly considered. c We may, however, hasten to add that it will be for the appropriate authority to be entrusted with the task of resolving the long simmering water dispute in Krishna basin between the three riparian States to come to its own t decision on the basis of the data placed before it by the contesting States. Scheme-B formulated by the earlier Tribunal can only serve as a useful blueprint to this authority, though it may not strictly be binding on it. Our aforesaid observations on Scheme-B be understood in that light. Needless to mention that in course of proceedings before the Tribunal not only the three iiparian States had requested the Tribunal by submitting a document Ex. MRK - 340 on 4'h May, 1973, indicating the principles of allocation signed by three counsel appearing for the three States which, however, was not agreed to later on, but also the learned counsel appearing for the Union of India had submitted before the Tribunal when the Tribunal was considering the clarificatory applications filed by different States on 81h May, 1975, to the effect :- F "The Government of India have examined both Schemes 'B' and 'A'. They feel that Scheme 'B' is better and easier to implement than Scheme 'A'. If Scheme 'B' comes as part of the final order of this Hon'ble Tribunal, the Government of India will take necessary steps for putting it into operation. Scheme 'B' may be put as part of the final order in the manner as the Hon'ble Tribunal feels fit. We would G like to have a complete scheme formulated by this Hon'ble Tribunal."

This really indicates how the Union Govenment was anxious to have an order of the Tribunal to make Scheme 'B ', a part of its decision though ultimately for the reasons already indicated the Tribunal did not accede to the same. H

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· A Issue No. 1.

The next imp01tant issue is Issue No. l which raises the question as to the maintainability of the suit in view of the bar provided under Article 262 (2) of the Constitution read with Section 11 of Inter-State Water Disputes Act. Learned Solicitor General Mr. Salve, appearing for the Union of India in fact piloted this issue which was, of course, supported by Mr. Parasaran appearing for the State of Andhra Pradesh. According to Mr. Salve the relief sought for by the plaintiff-State is itself a water dispute under the Act, and therefore, the suit is not maintainable in view of Section 11 of the Act. Referring to different avennents made in the plaint learned Solicitor General contends that under the plaint the plaintiff really ask for implementation of the allocation already made under Scheme 'A' in respect of 2060 TMC at 75% dependability and the sharing of surplus as evolved under Scheme 'B' and as such the prayer tantamounts to have a new Scheme altogether not evolved by the Tribunal itself and, consequently, a fresh water dispute and therefore, such a dispute cannot be ente1tained by this Court under Aiticle 131 of tl~e Constitution, the same being barred under Section 11 of the Act. Learned Solicitor General elaborated his argument with reference to the constitutional scheme and even went to the extent of contending that in a given case even the prayer for implementation of an Award of the Tribunal may become a water dispute under Section 2(c) of the Act and the moment it becomes a water dispute this E Court will have no jurisdiction to entertain a suit under Article 131 of the Constitution. Learned Solicitor General also refen-ed to issues 4 and 5 formulated in this proceeding and contended that the very issues indicate a water dispute has arisen and consequently suit will not lie. According to Mr. Salve, even in a suit for implementation of the decision of a tribunal, if issues p arise, which would be a water dispute under Section 2(c)(i) of the Act or fall under Section 3(b) or 3(c) of the Act, then the jurisdiction of the Court under Article 131 must be held to be barred and in the case in hand, in fact, the relief sought for by the plaintiff-State tantamounts to a fresh water dispute. Learned Solicitor General contends that the language of Section 2(c) read with Section 3 is wide enough to enable any riparian State to raise a dispute in relation to the use, control or distribution of the waters of an Inter-State river and the machinery for resolution of such a dispute is referable to Article 262 of the Constitution, which provision manifests an intent to insulate the Courts from disputes which may assume political overtones and applying the test to the case in hand, the conclusion is irresistible that this Court will not be entitled to entertain a suit under Article 131 of the Constitution.

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Mr. Parasaran appearing for the State of Andhra Pradesh supported the argument advanced by Mr. Saive, the learned Solicitor General and contended, that the suit being one not merely for implementation of Scheme 'B', as contended by the plaintiff, but an amalgam of both the Schemes, sharing of 2060 TMC under Scheme 'A' and sharing of surplus above 2060 TMC as per Scheme 'B' it is obviously an innovation which the Tribunal has itself not thought of and more appropriately a fresh water dispute within the meaning of Section 2(c) of the Act and consequently a suit under Article 131 would not lie. Mr. Nariman appearing for the plaintiff-State on the other hand contended, that a suit filed under Article 131 is not exactly a suit filed in ordinaiy Civil Court. The pleadings of the parties cannot be construed in a pedantic maimer and reading the plaint as a whole the conclusion is iiTesistible C that the plaintiff has made out a case to the effect that Scheme 'B' evolved by the Tribunal is also the decision of the Tribunal, though it could not be implemented in the absence of Constitution of Monitoring Authority and taking into account the time and energy spent by the Tribunal in evolving such a beneficial Scheme for better and fuller utilisation of the water resources of D River Krislma, this Court should issue appropriate direction for implementa- tion of the said Scheme 'B'. According to the learned counsel the dispute relating to sharing of water of River Krislma having been adjudicated by the Tribwial and two Schemes having been evolved for that purpose and the relief being for implementation of Scheme 'B', it is essentially a suit for implemen- tation of.an adjudicated dispute and no longer forms a dispute under Section E 2(c) of the Act, as contended by the learned Solicitor General. In this view of the matter the bar under Section 11 of the Act cannot be attracted. Before examining the rival stand of the parties it may be stated at the outset that the question of maintainability has to be decided upon the averments made by the plaintiffs and the relief sought for and taking the totality of the same and not p by spinning up one paragraph of the, plaint and then deciding the matter. In interpreting the scope of Article 131 of the Constitution, in the case of State of Rajasthan v. Union of India, [1978] 1 SCR 1 Chandrachud, J., as he then was, held that the requirement is that the dispute must involve a question, whether of law or fact, on which the existence or extent of a legal right depends. It is this qualification which affords the true guide for determining G whether a particular dispute is comprehended within Article 131. The purpose ~- of Article 131 is to afford a fornm for the resolution of disputes which depend for their decision on the existence or extent of a legal right. In the very same decision Bhagwati, J., as he then was, analysing the provisions of Article 131 of the Constitution came to hold that there are two limitations in regard to the H

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A nature of the suit whether can be ente1tained by the Supreme Court under the Article. One is in regard to parties and the other is in regard to the subject ~ matter. In the present case, so far as parties are concerned, it is covered by clauses (a) and (c), inasmuch as the grievances of the plaintiff is that an adjudicated decision of the Tribunal in evolving Scheme 'B' was not ..... notified by the Government of India under Section 6 of the Act and, as such, B a dispute between the plaintiff and the defendant no. 3 - the Union of India and further it is a dispute between the State of Kamataka and the State of Andhra Pradesh under Clause (c) of Article 131 as the said State of Andhra ..! Pradesh did not agree to the constitution of a Monitoring Authority for '""" \ ~ implementation of an adjudicated decision of the Tribunal by evolving Scheme c 'B'. In the very same decision Bhagwati, J., also further indicated that the Supreme Comt would have the power to give whatever reliefs are necessary for enforcement of legal right claimed in the suit if such legal right is established. In State of Karnataka v. Union of India & Am:, [1978] 2 SCR 1 this Court again considered the scope of Article 131 of the Constitution. D Chandhrachud, J., as he then was, held thus :

"The jurisdiction confeITed on the Supreme Court by Aritcle 131 of ' the Constitution should not be tested on the anvil of banal rules which are applied under the Code of Civil Procedure for dete1mining whether a suit is maintainable. Article 131 undoubtedly confers E 'original •jurisdiction' on the Supreme CourtJ and the commonest form of a legal proceeding which is tried by a court in the exercise of its original jurisdiction is a suit. But a constitutional provision, which confers exclusive jurisdiction on this Comt to entertain disputes of a .· certain nature in the exercise of its original jurisdiction, cannot be equated with a provision confeITing a right on a civil cowt to entertain a common suit so as to apply to an original proceeding under Article 131 the canons of a suit which is ordinarily triable under section 15 of the Code of Civil Procedme by a court of the lowest grade competent to try it. Advisedly, the Constitution does not describe the proceeding which may be brought under Article 131 as a 'suit' and significantly, aiticle 131 uses words and phrases not commonly employed for detennining the jurisdiction of a court of first instance to ente1tain and try a suit. It does not speak of a 'cause of action', an expression of known and definite legal impo1t in the world of witness actions. Instead, it employs the word 'dispute', which is no part of the elliptical jargon of law. But above all, Article 131 which

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in a manner of speaking is a self-contained code on matters falling within its purview, provides expressly for the condition su~ject to which an action can lie under it. That condition is expressed by the clause: "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". By the very terms of the article, therefore, the sole condition which is required to be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties __ , -11 ret(m-ed to in clauses (a) to (c) must involve a question on which the existence or extent o~- a legal right depends.

The quintessence of Article 131 is that there has to be a dispute between the pmties regarding a question on which the existence or extent of a legal right depends. A challenge by the State Government to the authority of the Central Government to appoint a Commission of Inquiry clearly involves a question on which the existence or extent ; of the legal right of the Central Government to appoint the Commis- D sion of Inquiry depends and that is enough to sustain the proceeding brought by the State under Article 131 of the Constitution. Far from its being a case of the "omission of the obvious". Justifying the reading of words into Article 131 which are not there, I consider that the Constitution has purposefully cohferred on this Court a jurisdic- tion which is untrammelled by considerations which fetter the juris- E diction of a court of first instance, which entertains and tries suits of a civil nature. The very nature of the disputes arising under Alticle 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits."

The learned judge had also further observed : F

"A proceeding under Alticle 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is between two or more govenunents - either the one or the other possesses the constitution power to act." G

Bhagwati, J. agreeing with Chandrachud, J. had a:so observed thus :

"The only requirement necessary for attracting the applicability of Article 131 is that the dispute must be one involving any question "on which the existence or extent of a legal right" depends, irrespective H

338 SUPREME COURT REPORT'S [2000] 3 S.C.R. A whether the legal right is claimed by one party or the other and it is not necessary that some legal right of the plaintiff should be infringed ~· before a suit can .be brought under that article."

Kailasam, J. and Beg, J. agreed with the conclusions airived at by Chandrachud, J. and Bhagwati, J. B The eminent Jurist Shri H.M. Seervai, in his book on "Constitutional Law of India" , dealing with the scope of Alticle 131 of the Constitution states .~ : "when a Court is given exclusive jurisdiction in respect of a dispute between t- ' patties, it is reasonable to hold that the Court has power to resolve the whole dispute, including the enforcement of its decrees or orders, especially when c provision has been made for such enforcement. The words 'if and in so far as the dispute involves any question (whether of law or fact) on which the existence of a legal right depends' are meant to emphasize the fact that the .....__ dispute must be one relating to leg<ll rights, and not a dispuk on the political plane not based on a legal right". ~ D Alticle 131 of the Constitution subject to the other provisions of the Constitution confers Original Jurisdiction on the Supreme Court over a dispute between the Central Government and one or more States or between two or more States subject to the condition that dispute involves any question whether of law or fact on which the existence or extent of a legal right depends. Article E 262(1) of the Constitution authorises the Parliament to make law for adjudi- -I "....

cation of any dispute or complaint with respect to the use, distribution or (. control of the waters of, or iu, any inter-State river or river valley. Sub-Alticle 2 of Article 262 also authorises the Parliament to provide by law excluding the jurisdiction of the Supreme Comt or any other Court in respect of a dispute F or complaint as is referred to in Clause (1). Thus Article 131 being subject to the other provisions of the Constitution including Article 262, if Parliament has made any law for adjudication of any water dispute or a dispute relating + to distribution or control of water in any inter-State river or river valley, then such a dispute cannot be raised before the Supreme Comt under Alticle 131, even if the dispute be one between the Centre or the State or between the two G States. In exercise of Constitutional power under Article 262(1), the Parlia- ment, in fact has enacted the law called the Inter-State Water Disputes Act, 1956 and Sec~ion 11 of the said Act provides that neither the Supreme Court ~ nor any other Court shall have jurisdiction in respect of any water dispute !}'- which could be refeITed to a tribunal under the Act. This being the position, H what is necessary to be found out is whether the assertions made in the plaint