STATE OF ANDHRAPRADESH v. STATE OF KARNATAKAAND ORS.

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filed by the State of Kamataka and the relief sought for, by any stretch of A imagination can be held to be a water dispute, which could be refeffed to the tribunal, so as to oust the jurisdiction of the Supreme Court under Article 131. On examining the ave1ments made in the plaint and the relief sought for, by the plaintiff-State, we are of the considered opinion that what really the State of Kamataka wants is a direction from the Supreme Court to the Union B Government to notify the Scheme "B" evolved by the tribunal and for a direction to the Union Government to constitute an authority under Section 6- A of the Act, which was inserted into the Act by amendment, though the said provision was not there on the date, the tribunal submitted its report and the decision. The plaintiff asserts in the plaint, that the dispute between all the three riparian States in relation to sharing of the water of iiver Krishna was c finally adjudicated upon by the tribunal by evolving the two schemes and under Scheme "A", mass allocation in favour of three States being made in ... .. respect of the availability of water in the river basin at 75% dependability, under Scheme "B" allocation has been made both in respect of surplus as well as water in the deficit water year and according to the plaintitl~ the entire water dispute which had been referred to the t:J.ibunal c;m be said to have been resolved only when Scheme "B" comes into operation, The said Scheme "B" not having been treated as the decision of the tribunal by the Union Government, and therefore, not being notified under Section 6 of the Act, the tights of the State of Kamataka flowing from implement;ation of said Scheme "B" is being infringed and the State is not in a position to have its future plan for utilisation of any surplus water in the river basin, and therefore, the

- approp1iate authorities should be mandatorily called upon for notifying the said scheme and for constitution of the Monitoring Authority. This being the nature of the assertions made in the plaint and the relief sought for, it is difficult for us to hold that it constitutes a dispute within the meaning of F - -+ Section 2(c) of the Act, and therefore, the jurisdiction of this Court gets baiTed under Article 262 read with Section 11 of the Act. In fact, the assertions made in the plaint and the relief sought for cai1 be held to be a claim on the basis of an adjudicate~ dispute, the enforcement whereof is sought for by filing a suit under Article 131 of the Constitution. Such a suit cannot be held to be barred under Atticle 262 of the Constitution read with Section 11 of the Act. G It is true, we have held while deciding issues 4, 5 and 7 that Scheme " B" evolved by the tribunal is not the decision of the tribunal under Section 5(2) of the Act but such conclusion of ours, would not necessarily lead to the conclusion that the suit itself gets baffed under Section 11 of the Act, as contended by the learned Solicitor General. The question whether the jurisdic- H

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A tion of this Court gets barred in view of Section 11 of the Act has to be answered by examining the assertions in the plaint and the relief sought for and by doing so, we are not in a position to hold that the assertions in the plaint together with the relief sought for, constitu~e a dispute under Section 2(c) of the Act, thereby ousting the jurisdiction of this Court under Section 11. We, therefore, hold this issue of maintainability in favour of the plaintiff and against the defendants.

ISSUE NO. 6

The aforesaid issue has been struck on the assertions made in the written statement of the State of Maharashtra. It has been averred in the written statement of the State of Maharashtra that Scheme "A" having been imple- mented from the date of its notification in the Official Gazette under Section 6 and being in operation for 21 years and parties having worked out their equities on the basis of said scheme on the mass allocation of water in river D Krishna, the question of implementing Scheme "B" at this stage does not arise even assuming that Scheme "B" is held to be a decision of the tribunal. According to the State of Maharashtra to make Scheme "B" effective, it is necessary that all the States should have their reservoirs in the basin at the places to be indicated by the so-called Monitoring Authority, supposed to have control under the very scheme. The same not having been possible, any E direction after a lapse of 21 years to implement Scheme "B" would be grossly prejudicial to the State of Maharashtra. The further stand taken in the written statement is that Scheme "A" itself having been implemented all the years and having provided for a review after 31" of May, 2000, which is fast approach- ing and the State .:>f Kamataka also at one point of time having taken the stand -- F that the Scheme "B" should not be implemented, it would not be appropriate for this Court to issue any direction for implementation of the said Scheme "B". In course of arguments, Mr. Andhyarujina, the learned senior counsel, appearing for the State of Mahar·ashtra, emphasised the fact that even as late as 30th of August, 1993, the Secretary to the Government, Irrigation Depart- ment, Kamataka, had intimated to the Secretary to the Government, Ministry G of Water Resources, Government of India as per Exh. PK-94 that the Karnataka Government is of the firm opinion that establishment of Krishna Valley Authority is not called for, since even without reference to Scheme "B", the surplus water can be shared by the parties by mutual agreement. This indicates the stand of the Kamataka Government with regard to the implemen- H tation of the so-called Scheme "B" evolved by the tribunal.

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Mr. Nariman, appearing for the plaintiff on the other hand contended that the State of Kamataka has all along been keen in requesting for implementation of Scheme "B ", though in that letter PK 94, referred to by Mr. Andhyarujina, it has been merely stated that at that point of time it may not be necessary to have the Krishna Valley Authority. According to Mr. Nariman, rights in relation to sharing of water of river Krishna having been crystalised by formulation of both the schemes, that right cannot be negatived merely because it has not been operated for this length of time. Having considered several correspondence between the parties, we find that though initially the State of Kamataka had requested the Union Govemment for implementation of Scheme "B'', thinking the same to be the decision of the tribunal and even though at one point of time the Union itself through its counsel Mr. Seyid c Muhammad, had requested the tribunal itself to make Scheme "B" operative but later on each of the states began their water management projects on the basis of the mass allocation made under Scheme "A". Mr. Nariman is right in his submission that the states had no other altemative inasmuch as it was only Scheme "A" which was notified and was made binding between the parties but the fact remains that having planned their respective projects on the basis of mass allocation made by the tribunal, the State of Kamataka did tbink in the year 1993 in response to the letter from the Union Government for constitution of the Krishna Valley Authority that the State does not think it proper to have the Authority at that point of time. Thus all the three states have made their respective planning for utilisation of the allocated water in their respective share by the tribunal under Scheme "A" which as until today continues to be effective but for the apprehension and dispute between the State of Andhra Pradesh and Kamataka, when Kamataka started construction of dam at Almatti and Andhra Pradesh went on with large projects like Telugu Ganga, Nagarjunasagar and others. In the matter of sharing of waters of inter- F State river when the tribunal constituted under the Inter-State Water Disputes Act, evolved a scheme of mass allocation as under Scheme "A" and that scheme has remained operative for all these years and could be reviewed at any time after 31 '1 of May, 2000 even as per the decision of the tribunal itself, the contention of the State of Maharashtra that direction to implement scheme "B" at this length of time should not be given effect to is of considerable G substance. In a dispute of the present nature when the Court is in cession of the matter before issuing any direction, the Court is not examining merely the rights of the parties, if any, flowing from any earlier order of tribunal but also the question of the equitability and the question of the efficaciousness of any such direction. It is in this context, the submission of Mr. Parasaran, the H

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A learned senior counsel, appearing for the State of Andhra Pradesh to the effect that a tested scheme like Scheme "A" which has remained operative for all these years should not be given a go-bye, abruptly by directly implementation of Scheme "B", particularly, when it is an admitted fact that not only the back- bone of said Scheme "B", the Krishna Valley Authority, has not been constituted but alsci the States themselves have not been able to build-up their B reservoirs for storage of surplus water, which is also a part of Scheme "B" itself. We, however need not further delve into this matte~ in view of our conclusion earlier that Scheme "B" is not a decision of the tribunal and as such k the Court will not be justified in issuing .any direction in implementation of the said scheme. This issue is answered accordingly. c ISSUE NOS. JO AND 11.

These two issues are inter-linked and, therefore are taken up together for consideration. The plaintiffs stand in this respect is that while making mass allocation in favour of tlrree States in respect of 2060 TMC of Krishna river, which was found at 75% of dependability and while allocating specified quantity of water in a water year in respect of the three states, the tribunal has also observed that Andhra Pradesh will be at liberty to use in any water year, the remaining water that may be flowing in river Krishna but such liberty will not confer any right whatsoever nor can the State claim any right in respect of any water in excess of the quantity specified namely 800 TMC. The relevant Clause of the Final Order as notified in the Gazette by the Government of India is extracted hereto:

"(C) The State of Andhra Pradesh will be at liberty to use in any water year the remaining water that may be flowing in the river F Krishna but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year, water of the river Krishna in excess of the quantity specified hereunder:-

G (i) as from the water year commencing on the 1st June next after the date of the publica~on of the decision of the Tribunal in the Official Gazette up to the water year 1982-83. 800 T.M.C.

(ii) as from the water year 1983-84 up to the water year 1989-90. H 800 T.M.C. plus

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a quantity of water equivalent to 10 per cent of the excess of the· A average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its

- own projects using 3 T.M.C. or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects.

(iii) as from the water year 990-91 up to the water year 1997-98 B 800 T.M.C. plus

a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1982-83, 1983-84 and 1984-85 from its C own projects using 3 TMC or more annually over the utilisations for such irrigation in the water 1968-69 from such projects.

(iv) as from the water year 1998-99 onwards 800 T.M.C. plus D a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from i•; own projects using 3 T.M.C. or more annually over the utilisation for .,._ such irrigation in the water year 1968-69 from such projects." E But notwithstanding the aforesaid observations made by the tribunal, the State of Andhra Pradesh is going ahead with large-scale water projects for utilisation of all the surplus water, flowing in river basin to pre-empt the upper riparian States like Maharashtra and Kamataka from claiming their share in surplus water in excess of 2060 T.M.C., allocated under Scheme "A". The F State of Maharashtra as well as the Union Government also support the aforesaid stand of the State of Kamatak:a but the State of Andhra Pradesh on the other hand takes the stand that Andhra Pradesh being the lowest riparian State in the river basin and the tribunal having granted the liberty to use the remaining water which may be flowing in river Krishna, there should not be any fetter in exercise of that libe1ty by the State and the apprehension of the G State of Kamataka as well as the State of Maharashtra is unfounded. In the context of the rival stand of the parties, the question that arises for considera- tion is whether the liberty granted by the tribunal in favour of the lowest riparian State, namely the State of Andhra Pradesh to use the excess water is unfettered and the State can use the same in any manner it likes, or there H

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A should be some restrictions in such use. At the outset, it may be noticed that in the very clause, while giving liberty to State of Andhra Pradesh to use the remaining water, the tribunal itself has hastened to hold - "but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year, water of the river Krishna in excess of the quantity specified." The aforesaid direction of the tribunal itself curtails B the so-called liberty granted to the State of Andhra Pradesh but since the tribunal was givip.g a mass allocation in respect of the three States and unless such liberty is granted in favour of the lowest riparian State, the water would have otherwise entered into the Bay of Bengal and, therefore, it was thought fit that the lowest riparian State could utilise the same, but can never claim c a right by using the excess water. In the context of the expenses involved for such major projects and the national loss, which the country cannot afford to sustain in a Federal Structure like our country, it is the duty of the Central Government to bear this in mind. while sanctioning any such major project of the lowest riparian State like Andhra Pradesh. A bare reading of the report of the tribunal and its decision in the form of a Final Order, which has been D notified by the Central Government, unequivocally indicates that the so-called liberty granted to the lowest riparian state does not confer any right beyond the allocable share, in other words, what the lowest riparian state bas been granted under the decision of the tribunal is a liberty to utilise the surplu~­ water flowing without creating any right in favour of the State concerned. E Such a liberty, therefore would mean that so long as the mass allocation ;,, in force, the lowest riparian State can certainly utilise any excess water, flowing in the river basin, before it merges into the sea but such user should not be, by way of permanent construction of large-scale projects and water reservoirs, particularly, when the so-called mass allocation under Scheme "A" itself is liable to be reviewed after 31" of May, 2000, which is fast approaching. The contention of Mr. Parasaran, appearing for the State of Andhra Pradesh, in this regard to the effect that there is no fetter on the manner of user of the surplus water, the liberty having been given, cannot be accepted in such broad basis though it cannot be denied that so long as Scheme "A" is under operation and so long as the two upper riparian States get their share of allocation of water, the lowest riparian State of Andhra Pradesh can use the excess water flowing down in the river basin. It is true that while granting such liberty, the tribunal bas not indicated as to the manner of its user but the same must be read into the moment the other part of the Order is read namely such user will neither confer a right nor can be deemed to have been allocated in favour of the said lowest riparian State. This being the nature of direction of the tribunal, it is

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTA..'fAIK, J.] 345 appropriate for the Central Government to exercise the discretion while granting any scheme or project of the lowest riparian state and bearing in mind, what is really meant by the liberty granted, so that the lowest riparian state should not be allowed to proceed ahead with large-scale water projects for utilisation of the surplus water in excess of the allocated quantity over which, the State has no right. It is the Central Government which has to exercise this discretion while clearing projects of the lowest riparian State and it should be so exercised that there should not be any apprehension in the minds of the upper States that for all times to come, their right of sharing the surplus water would in any manner be endangered. These two issues are answered accordingly. c ISSUE NO. 9

In view of what has been stated by us while answering Issues 10 and 11, this issue, no longer survives for any further consideration and this jssue is accordingly answered against the defendant State of Andhra Pradesh. D ISSUE NO. 2

This issue has to be answered on the basis of the assertions made in tlie plaint as well as the cause of action for filing of the suit. As has been stated earlier, the State of Karnataka being of the opinion that Scheme "B" evolved by the tribunal is also a decision of the tribunal, which unfortunately could not E be given effect to, on account of lack of consent of all the States for constituting a Monitoring Authority and having failed in its attempt to get the said scheme implemented by getting a Monitoring Authority constituted, the said state filed the present suit. It is the refusal of the State of Andhra Pradesh to agree to the constitution of an authority, thereby making the scheme un- p implementable, which gave the cause of action to file the present suit on the basis of which the suit has been filed and taking into account the fact that the State of Andhra Pradesh has never agreed to the constitution of the Krishna Valley Authority, which was thought to be the back-bone of Scheme "B", it cannot be said that the plaintiff-State has no cause of action for filing the suit. This issue is answered in favour of the plaintiff and against the defendants. G

ISSUE NO. 3

The aforesaid issue really does not arise for any further elucidation and discussion inasmuch as it has been held by us that Scheme "B" is not the decision of the tribunal, though the same is mentioned in the report. The relief H

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A sought for, therefore, in the plaint cannot be held to be contrary to the report as the report submitted by the tribunal did contain both the schemes- Scheme "A" and Scheme "B" but it is certainly contrary to the decision of the tribunal inasmuch as tribunal itself resolved the dispute referred to it by formulating Scheme "A" for distribution of the water on mass allocation basis and which according to the tribunal itself is contained in the Final Order of the tribunal. B This issue is answered accordingly.

ISSUE NO. 8

The aforesaid issue arises in view of Prayer (c) of the plaint, where- under, the plaintiff has prayed that Defendant No. 3 be directed by mandatory c order to notify Scheme "B" and make provisions for establishment of Krishna Valley Authority, as contemplated under Section 6(A) of L'ie Inter-State Water Disputes Act. It is the contention of the plaintiff that constitution of the Monitoring Authority under Scheme "B" being the back-bone of the scheme and Section 6(A) having been brought on the Statute book by amendment, such authority could be constituted by the Central Government in exercise of powers under Section 6(A) and, therefore, though on the date, the further report of the tribunal was submitted, it would not have been possible for tl1e Union Government to constitute tl1e Monitoring Authority but now after insertion of Section 6(A) of the Act, there is no impediment for exercise oi that power and, therefore, this Comt should issue appropriate directions in that regard. According to Mr. Nariman, the very object of insertion of Section 6(A) of the Act, being the implementation of the decision of the tribunal under the Act, which decision may involve of setting up of a machinery for the purpose, as is indicated in the Statement of Objects and Reasons and in the case in hand, setting up of such authority, not having been agreed to by the parties, nor the F Parliament having come forward with any legislation under Entry 56 of List I of the Seventh Schedule and at the same time the said Scheme "B" having been evolved for better and fuller utilisation of the water of river Krishna by all the riparian States, this Court should issue necessary mandatory orders, calling upon the Union Government to constitute the authority. According to G Mr. Nariman, the learned senior counsel for the State of Karnataka, Section 6(A) confers power upon the Central Government and correspondingly, casts a duty on the said Government and if the Statute confers a power coupled with duty, the Court can always compel the authority concerned to perform the said duty, if the same is not performed at all. Mr. Nariman contends that though the tribunal devoted a good deal of its time in evolving Scheme "B" for better H

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'.. ,~,.... and fuller utilisation of the water of river Krishna amongst the three riparian States, but could not make it a part of the Final Order as one of the States did A

not give consent to the tribunal for constituting the Monitoring Authority, which in fact is said to be the back-bone of the scheme. But to obviate such difficulties when the Parliament itself has come forward, engrafting Section 6(A) on the Statute Book, which confers ample powers on the Central B Government to form the authority for implementation of the decision of the tribunal, the Court, if it comes to the conclusion that Scheme "B" is the Al decision and should be implemented, can issue appropriate directions to the Central Government for constituting the Monitoring Authority. According to ·Mr. Nariman, Section 6(A)(l) is purely an executive function and does not contain an iota of flavour of subordinate legislation and, therefore, there c should be no difficulty for the Court in issuing mandatory injunction. Mr. Parasaran, appearing for the State of Andhra Pradesh, on the other hand contended that the power under Section 6(A) is not executive, but legislative lilt ?"" in nature and, therefore, Cowt would not be justified in issuing a mandamus or mandatory injunction for performance of a legislative function in the same D way as the Court cannot call upon the legislature to frame a law. Mr. Parasaran also further argued that sub-section (7) of Section 6(A) contemplates that the scheme framed under Section 6(A) has to be laid before each House of · Parliament and it is only after the Parliament ratifies the scheme, will have effect and in the event, the Parliament does not agree for the framing of the )" Scheme, the same shall not have any effect. This being the position, the Court E will not pass a decree which ultimately is capable of being nullified by the Parliament Mr. Parasaran further argues that Section 6(A) having come into existence in 1980, long after the decision of the tribw1al, even if it is held that Scheme "B" is a decision of the tribunal and the performance of duty by the Central Goveminent under Section 6(A) is executive in nature, yet the power F _........ cannot be exercised vis-a-vis the decision of the tribunal except those subject matter which would fall within the power related to Entry 56 of List I. According to the learned counsel, the Central Govemment can establish an authority only if Parliament makes law under Entry 56 of List I and also makes a further declaration as required. Mr. Andhyarujina, the learned senior counsel for the State of Maharashtra, also supported the contention of Mr. Parasaran G and submitted that the power under Section 6(A) is essentially a delegated -lf legislative power and, therefore, no court would be justified in issuing mandamus for exercise of such power. This issue really does not require to be answered since question of direction to constitute an authority like Krishna Valley Authority would crop up, only if it is held that Scheme "B" evolved H

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A by the tribunal is the decision of the tribunal and for its implementation an Authority is required to be constituted. We have already held that Scheme "B" cannot be held to be the decision of the tribunal, while deciding issue Nos. 4, 5 and 7 and in that view of the matter, we are not inclined to examine the contentious issues as to whether the exercise of power by the Central Government under Section 6(A) is an executive one, as contended by Mr. B Narirnan or is legislative in nature, as contended by Mr. Parasaran. We, therefore, leave this issue open, not deciding the same.

ISSUE NO. 12

C This issue has been framed at the instance of the State of Maharashtra, in view of the stand taken by the said State that a review having been provided for, in 2000 A.D., the suit filed by the plaintiff is pre-mature. While providing mass allocation in favour of three riparian States on the basis of 2060 T.M.C. bf water at 75% dependable flow, the tribunal itself has observed in its Original Report, which has been marked as Exhibit PKl that the Order of the tribunal could be reviewed at any time after 31 '1 of May, 2000 and this period is considered reasonable in view of the fact that during the intervening period there will be increasing demands for water for irrigation and other purposes in the Krishna basin which may have to be examined in the light of the fresh data that may be available and further in view of the stupendous advance in the technology in the matter of conservation of water and its uses and also for other reasons. But the aforesaid review which has been indicated in the Order of the tribunal is in relation to the allocation made under Scheme "A" and has nothing to do with Scheme "B". Since plaintiff-State has filed the suit on the assumption that Scheme "B" is the decision of the tribunal and should be p implemented by a mandatory order of the Court, such a suit cannot be held to be pre-mat:ure on the ground that a review has been provided for after 2000A.D. This issue is, therefore, answered in favour of the plaintiff and against the defendants.

ISSUE NO. 13 G In the context of the prayer made in the plaint as well as the basis of the said prayer and in view of our findings on Issues 3, 4 arid 7, question of granting relief sought for by the plaintiff State does not arise. But at the same· time this being a suit under Article 131 of the Constitution, and in view of the H nature of disputes raised by the parties and in view of our discussion in the

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judgment relating to Scheme 'B' evolved by the Tribunal, we think it appropriate to observe that in the event any of the riparian State approaches the Central Government, the Central Government would do well in constitut- ing a Tribunal which Tribunal can go into the entire gamut of disputes and in the said proceedings the parties can certainly place the datas and materials on the basis of which Bacchawat Tribunal had evolved the two Schemes for efficacious allocation of water in river Krishna. It will also be open for the parties to place fresh datas on the basis of improved method of gauging even for finding out the availability of water in Krishna basin. In fact the learned Solicitor General, fairly stated that in the event any of the riparian States approaches the Central Government, it would not hesitate to discharge its statutory obligation for constitution of a Tribunal and that is the only solution c at this juncture.

The suit is accordingly dismissed with these observations. There would, however, be no order as to costs. D PATTANAIK, J. The State of Andhra Pradesh has filed the suit under Article 131 of the Constitution of India, impleading the State of Karnataka, Union of India and State of Maharashtra as party defendants, seeking relief of ·declaration and mandatory injunction on the allegation that the State of ,· Karnataka, in particular has made gross violations of the decision of Krishna ' y· Water Disputes Tribunal and such violations have adversely affected the E residents of the State of Andhra Pradesh. The relief sought for in the suit are as under:

"(a) declare that the report /decision dated 24.12.1973 and the further report/decision dated 27 .5.1976 of the Krishna Water Disputes Tribu- F nal (KWDD in their entirety are binding upon the three riparian States of Maharashtra, Kamataka and Andlu·a Pradesh and also the Union of India; (b) declare that the riparian States are duty bound to fully disclose to each other and also to the Union of India all particulars of all projects undertaken or proposed after December, 1973 and May, 1976 and to direct the defendants to ensure that G execution thereof are in confonnity with and do not conflict with or violate the decisions of the KWDT and they do not adversely affect the rights of the other riparian States; (c) declare that the party States are entitled to utilise not more than the quantity of water which is allocated or permitted by the decisiop.s of the KWDT for the H

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A respective projects of the respective party States before the Tribunal; and that any variation in either storage or utilisation of the waters by each such state in respect of each of such projects could only be with the prior consent or concurrence of the other riparian States; (d) declare that all the projects executed and/or which are in the process of execution by the State of Kamataka which are not in conformity B with and conflict with or violate the decisions of the KWDT, as illegal and unauthorised.

(e) declare that approvals I sanctions I clearances I in-principle clearances granted by the Union of India on or after KWDT decisions '• c on 24.12.1973 and on 27.5.1976 in respect of schemes I projects I undertaken by the Government of Karnataka are invalid and direct the Union Government to review I reconsider all such schemes I projects proposed I undertaken by Karnataka, afresh, after obtaining the views thereon of the other riparian States;

D (f) declare that the State of Kamataka and Maharashtra shall not be entitled to claim any rights preferential or otherwise in respect of ~torage, control and use of waters of the inter- State river Krishna in respect of the schemes /projects not authorised by the decision of the KWDT; (g) declare that the Uniop. Government is duty bound to E consult all the riparian States of Maharashtra, Kamataka and Andhra Pradesh before according any approvals I sanctions I clearances I in- principle clearances to any schemes I projects proposed I unde1taken by any of t11e riparian States on the inter-State river Krishna and direct the Union Government to act in terms of the said declaration; (h) grant a mandatory injunction directing the State of Kamataka to undo al! F its illegal, unauthorised actions regarding projects/ schemes and in pa1ticular the following projects executed by it contrary to the decisions of KWDT so as to bring them in conformity with the said 't decisions:

G Almatti Dam under UKP

Construction of Canals/Lifts Schemes on Almatti Reservoir.

Upper Krishna Projects in K-2 Sub-basin.

H Hippargi Weir/Irrigation Schemes.

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTANAIK, J.) 351 Construction of lndi and Rampur lift schemes on Narayanpur reser- A voir and the canals.

(i) grant a permanent injunction restraining the State of Kamataka from unde1taking, continuing or proceeding with any further con- struction in respect of the following proj~cts: Almatti Dam under UKP Constmction of Canals/Lifts Schemes on Almatti Reservoir B Upper Krishna Projects in K-2 Sub-basin.

Hippargi Weir/Irrigation Schemes.

Construction of lndi and Rampur lift Schemes on Narayanpur reser- c voir and the canals.

G) appoint a team of experts for making a comprehensive techno- economic evaluation and environmental impact analysis in respect of the following projects and, pending orders of this Hon'ble Court on the report of the team of experts, grant an order of injunction D restraining the Defendant No. 1 - State of Karnataka from proceeding with any further construction in any of the following projects/ schemes: Almatti Dam under UKP Construction of Canals/ Lifts Schemes on Almatti Reservoir. E Upper Krishna Projects in K-2 Sub-basin.

Hippargi Weir/Irrigation Scheme.

Construction of lndi and Rampur lift schemes on Narayanpur Reser- voir and the canals. F (k) to issue a permanent injunction restraining the Defendant No. 1 State of Kamataka from growing or allowing to grow sugarcane or raising other wet crops in the command areas falling under the projects/schemes within the Upper Krishna Project; (I) pass a decree in terms of prayers (a) to (k); and (m) award costs of the present G proceeding in favour of the Plaintiff;

(n) pass such further decree or decrees or other orders as this Hon'ble Court may deem fit in the facts and circumstances of the case."

Though there are as many as 14 reliefs sought for as stated above, but H

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A essentially the reliefs relate to the construction of Almatti Dam under Upper ...,.. : Krishna Project by the State of Karnataka to a height of 524.256 M. Though the averments of facts in the plaint have been made in 71 paragraphs, shorn of minute details, the same may be stated as under: " \

That the dispute between the three riparian States namely Maharashtra, B Karnataka and Andhra Pradesh with respect to use, distribution and control of the water of inter-State river Krishna stood resolved by the decisions of the tribunal, constituted under Section 4 of the Inter-State Water Disputes Act, .Aii.. 1956 (hereinafter referred to as 'the Act') by the decision rendered in 1973 and the Further decision rendered in 1976. The said decision having been c notified by the Central. Government under Section 6, became binding on all parties. ·All the parties-States being constituents of the Federation of Republic of India, the plaintiff expected that each State, while undertaking their projects for utilisation of the quantity of water allocated in their favour by the tribunal would consult with the other concerned States and would so use, which will ~ not be against the decision of the tribunal in any manner. But the State of D Karnataka has not been acting in accordance with the letter and spirit of the d,ecision of the tribunal and on the other hand has violated the expressed terms and conditions of the tribunal, which compelled the State of Andhra Pradesh to invoke the jurisdiction of the Supreme Court under Article 131 of the Constitution. After indicating the topography of the river as well as the three -( E riparian States and the disputes which arose between the States that lead the Central Government to constitute the Krishna Water Disputes Tribunal, the plaintiff has stated that the tribunal framed seven main issues and under issue No. II with its eight sub-issues, decided the question of equitable apportion- ment of the beneficial use of the waters of the river Krishna and the river F Valley by evolving Scheme "A" and making the same as its Final Order or decision, which became binding on all the parties, after the same was notified ___.__ - . by the Union Goveinment under Section 6 of the Act. It is not necessary for us to reiterate all the facts leading to the raising of disputes and constitution of the tribunal, which we have already narrated in judgment in O.S.l of 1997, filed by the State of Karnataka. The plaintiff then has averred as to how on the basis of agreement between the parties, the 75% dependable flow at Vijayawada was found to be 2060 TMC and while considering the case of each State for allocation of their respective share of water in respect of the aforesaid ~ 75% of dependable flow, several projects in the river basin, already undertaken by the States as well as the quantity of water required for the projects were considered by the tribunal on the basis of which the ultimate figure of

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allocation were arrived at. According to the plaint, the tribunal, while restraining the States of Maharashtra and Mysore from using more water than allocated in their favour, granted liberty to the plaintiff-State of Andbra Pradesh to use the remaining water with the rider that the State of Andbra Pradesh will not acquire any right to the user of such water except to the extent allocated to it. The plaintiff also averred that while making allocation to the three States, no express provisions were made for sharing of any deficiency and further the tribunal took note of the fact that out of 100 years, deficiency may occur in 25 years. It was also averred that to relieve the State of Andbra Pradesh from the aforesaid difficulty, the tribunal permitted the State of Andbra Pradesh to store water in the Nagai:junasagar Dam and in Srisailam Dam and held that for such storage, there would not be any deduction from c its share out of the dependable flow on the ground that if the water is not allowed to be stored by the plaintiff-State, then it would flow down and get submerged in the sea. According to the plaint, the tribunal did consider the different project reports which had been produced before it, in relation to the Upper Krishna Project and allowing the protected utilisation of 103 TMC, it came to the conclusion that the demand of State of Kamataka to the extent of 52 TMC to be utilised by Narayanpur Right Bank Canal is worth consideration. After enumerating the different clauses of the Final Order of the ·~ tribunal in its original report of 1973, the plaintiff has averred that though the tribunal has made allocation enbloc in a negative form namely that the State cannot utilise more than the allocable quantity of water in its share in any water year but the said enbloc allocation has to be read in the light of the relevant stand of the parties before the tribunal, the facts and figures produced before the tribunal and the ultimate basis on which the conclusion was arrived at. According to the plaintiff, by taking recourse to the aforesaid method, it would be crystal clear that party- States were restrained from utilising in F ......... different sub-basins of river Krishna within their respective territory, beyond what was considered as the protective use and the additional quantity allocated to their share. It has been averred in the plaint that' so far as Upper Krishna Project is concerned within the State of Kamataka, the tribunal has allocated only 160 TMC of water for being used and the construction of Almatti Dam to the height of 524 Meters, as indicated by the State of Kamataka, would, G therefore, on the face of it, is in violation of the decision of the tribunal. After referring to the different applications for clarifications sought for by different States under Section 5(3) of the Act and the answer of the tribunal on the same, the plaintiff has also avened as to how the tribunal dealt with the contentions raised by the State of Maharashtra before it, in relation to the allocation of 52 H

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A TMC of water from Narayanpur Right Bank Canal. According to the plaintiff, though, no doubt in the Final .Order of the tribunal, there has been a mass allocation of water in favour of the three riparian States out of the 2060 TMC of water under 75% of dependability at Vijayawada, which figure was arrived at by consent of the parties, but a closer scrutiny of the report in its entirety being examined, it would be apparent that the allocation in respect of different B sub-basins had been made on the basis of projects undertaken in those sub- basins and consequently, no State would be entitled to use the entire quantity of water allocated in their favour in any particular sub-basin. The plaintiff, then has averred that the post award developments undertaken by the State of Karnataka, intending to raise the height of Almatti Dam to 524 Meters is c nothing but a gross violation of the decision of the tribunal and, therefore, this Court should injunct the State of Karnataka in going ahead with the Almatti Dam upto the height of 524 Meters, as indicated in its project. The plaintiff then referred to several correspondence made between the State of Karnataka and State of Andhra Pradesh inter se, as well as correspondence between these D States and Union Government and Central Water Commission. It has also been averred that allowing the State of Kamataka to construct the dam at Almatti up to a height of 524 Metres would be grossly detrimental to the lower riparian state of Andhra Pradesh inasmuch as for three months in a year from July to September, the State of Andhra Pradesh may go dry and the entire crop in the State would get damaged for paucity of water. The plaintiff also has averred E in several paragraphs of the plaint, as to how the plaintiff-State has been demanding from the State of Karnataka to have suitable information in relation to the construction of the dam at Almatti and how the plaintiff-State has been prevented from being favoured with any such information. In paragraph 34 of the plaint, the plaintiff refers to the letter addressed to the Chief Minister of F Andhra Pradesh by the then Union Minister for Water Resources, proposing _,.._ . to convene a meeting of Chief Ministers of the Krishna Basin States for discussing Upper Krishna Project Stage-II and along with the said letter, the observation of Central Water Commission, indicating how the project at Almatti creates a physical capability of water utilisation in excess of 173 TMC, which would be possible in view of the proposed top of the radial gate at FRL G 521 meters against the required level of 518.7 meters for utilisation of 173 TMC of water. In the subsequent paragraph of the plaint, it has also been indicated as to how the State of Andhra Pradesh has been objecting to the proposals of the State of Karnataka to have the height of Almatti dam at 524 meters under the guise of flood protection measure and then how the plaintiff H State requested the Prime Minister of India to intervene in the matter to avoid

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violation of the award of the Krishna Water Disputes Tribunal. In paragraph A 39 of the plaint, it has been averred that the Union Government as well as the Central Water Commission which are responsible for clearance of inter-State Projects, bent upon clearing the Almatti Project up to a dam height of 524 meters without even consulting the State of Andhra Pradesh, though, accord- ing to the plaintiff in a Federal Structure of the Government, each constituent B State would be entitled to know the progress of any project in relation to inter- State river, since it may have several adverse effects on the other States. The plaintiff also averred that at the behest of the State of Andhra Pradesh, the United Front Government, which was at the Centre, constituted a Committee of four Chief Ministers to examine the issues relating io the construction of Almatti Dam, which committee in tum, decided to constitute an Expert c Committee with a representative of the Central Water Commission and Planning Commission, who, however, did not ultimately participate in the proceedings. The said Expert Committee has found that the proposal of the Upper Krishna Project with FRL of 524.256 meters for Almatti Dam is under consideration and has not been approved by the Government of India, though D many canals have been designed and constructed for larger capacity meant for future uses and it is not necessary to build a bigger storage of 227 TMC at Almatti dam with top of shutter at 524.256 meters. The said Committee had also observed that the FRL on the top of the shutter be fixed for the present at 519 .6 meters and the gates be manufactured and erected accordingly and this will be adequate to take care of the annual requirements of 173 TMC E presently envisaged under the Upper Krishna Project. The said Committee, therefore, suggested the restriction of the height of the dam at 519.6 meters. The plaintiff however does not accept of the entitlement of the first defendant to use 173 TMC under UKP and the height of the dam at 519.6 meters. From paragraph 52 onwards, the plaintiff then has made averments indicating the F negotiations and further developments in the matter and then states tl1at the -~ Ministry of Power, Government of India having indicated that 'in principle' clearance of construction of Upper Krishna Hydro- electric power project at Almatti, contemplating the height of the dam at 524.256 meters was contrary to the award of the tribunal, and therefore, the plaintiff-State lodged its objections by letter dated 18th of October, 1996, to which the reply came that G 'in principle' clearance is not a techno- economic clearance and it is purely an administrative action to facilitate developmental activities. The plaintiff, · thereafter by its letter dated 18th of December, 1996, requested the Secr~tary, Ministry of Water Resources, Govt. of India to ensure forthwith the publica- tion in the Gazette of India the decision of the Krishna Water Disputes H

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A Tribunal i.e. the report dated 24.12.1973 and the further report dated 27.5.1976 in its entirety. But since it became apparent that the Defendant No. 1 State of -..,.... - Karnataka was not at all inclined to resolve the problem by any amicable discussion nor did it desire any effort for mediation being undertaken by anyone whatsoever,the plaintiff had no other alternative but to approach this Court under Article 131 of the Constitution for declarations and injunctions B against the Defendants for protection of the rights of the plaintiff State as well as the rights of its inhabitants flowing from the decision of the Krishna Water Disputes Tribunal. From paragraph 65 onwards, the plaintiff has narrated ~ several facts constituting violations of the decision of the tribunal by the State of Kamataka and from paragraph 69 onwards, the plaintiff has indicated the c role played by the Central Government in the matter of allowing the State of Karnataka to raise the height of the dam, which would ultimately lead to violation of the terms and conditions as well as the restrictions in the award of the tribunal and which wouW infringe the rights of the State of Andhra .- Pradesh and its inhabitants. The cause of action for filing the suit has been ---< indicated in paragraph 73 of the plaint, namely indulgence of the State of D Karnataka in going ahead with the Upper Krishna Project Stage I and II with the construction of the Almatti Dam which is in violation of the decision of the tribunal in letter and spirit.

Defendant No. 1- State of Kamataka in its written statement, took the E stand that the tribunal had not made any project-wise allocation and on the ~

other hand, the allocation is enbloc and as such the question of interpreting the decision of the tribunal to the effect that there is restriction in the user of water in any particular Basin is not correct. It has been further averred that the State of Kamataka had contemplated the height of the Dam at Almatti as F 524.256 m in the Project Report of 1970 itself and that Report had been filed before the tribunal and had been marked as document MYPK-3. Neither the ~- State of Andhra Pradesh nor any other State had raised any objection to the said Project Report and there was no issue before the tribunal on that score and in fact the height of the Almatti Dam was not a matter of adjudication before the tribunal. In this view of the matter, the plaintiff-State is not entitled G to raise that issue on the purported allegation that it amounts to violation of the decision of the tribunal. It is also contented that an identical issue having been raised by an individual by filing a writ petition in the Andhra Pradesh )'- and after dismissal of the same, the matter having been brought to this Court and the order of the Andhra Pradesh High Court has been affim;ied, the same I H question cannot be re.:agitated by filing a suit by the State under Article 131

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of the Constitution of India. In respect of the decision of the Committee, which stated about the FRL 519 .6 m, it has been averred in the written statement that the said Committee considered the height at 519.6 meters to be sufficient, taking into account the storage capacity of the dam which will take care of the annual requirement of 173 TMC in a water year but it did not take into account the further water that may be needed for generation of power and the project at Almatti with the height of the dam beyond 519.6 meters and up to 524.256 meters being only for power generation and the water thus used for power generation being non-consumptive, there is no question of violation of any direction of Jie tribunal when the .:itate of Karnataka has decided to have the height of the dam at Almatti at 524.256 meters. It has been specifically averred in the written statement that the decision of the tribunal which has c been Gazetted under Section 6 of the Act has not imposed any restriction on any State for construction of any Project and on the other hand Clause XV expressly mentioned that : "Nothing in the order of the tribunal shall impair the right or power or authority of any State to regulate within its boundaries the use of water, or to enjoy the benefit of water within that State in a manner not inconsistent with the order of this tribunal" and in view of such specific provision, it is futile for the State of Andhra Pradesh to contend that the height of the dam at Almatti should not be raised to 524.256 meters. The defendant has further averred that the Project at Almatti has been undertaken at huge cost exceeding Rs.6000 crores and it is not in national interest to stop the project at this advance stage and the suit has been filed with the design to cause delay in the completion of the projects undertaken by the State of Kamataka. It has been reiterated that the utilisation of water would be entirely within the allocated quantity made by the tribunal. According to Defendant No. 1, the plaintiff has not made out any case of breach of its legal rights and, therefore the suit under Article 131 of the Constitution is not maintainable. The F defendant also narrated the background under which the Central Government set up the tribunal for adjudication of the disputes between the riparian States and how ultimately the tribunal gave its report, stating therein the facts found as well as the decision thereon. The defendant State has also stated in the written statement that the Almatti Dam has been designed for utilisation of 173 TMC for Upper Krishna Project in two stages and the State had indicated that G height, right from the inception before the tribunal itself, though neither any party raised any objection nor any issue was struck, nor any decision thereon has been given by the tribunal itself and in this view of the matter any grievance with regard to the height of the dam at Almatti would be a fresh water dispute and would not come withi'l the adjudicated dispute and decision H

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A thereon by the tribunal itself and, therefore, the suit filed under Article 131 is not maintainable. It has been specifically averred that the storage level at Almatti Dam from 519.6 meters to 524.256 meters is not at all an increase, particularly, when the tribunal itself expressly noted the contemplated comple- tion of the Almatti Dam to the full height that is the height in Exhibit MYPK-

3. The defendant also referred to the report of the Central Water Commission B dated January 30, 1994, whereunder it has been indicated that since the power generation is contemplated under the project at Almatti by way of utilising the extra storage of water between 519.60 meters and 521 meters, the prqject may be treated as a multi-purpose project (the level required to utilise 173 TMC of water for inigation is 519. 60 meters). The Defendant-State of Kamataka has c specifically averred that even though the dam height is raised to this final level of 524.256 meters, the quantity of water that could be utilised for irrigation is only 173 TMC as per allocation made in the Award and any additional quantity over and above 173 TMC will be let out into the river after generating power. It has also been contended that the dispute raised being a water dispute in respect of an inter-State river, the same is governed by Article 262 of the Constitution read with Section 11 of the Inter-State Water Disputes Act, and therefore, suit under Article 131 is not maintainable. All allegations made by the plaintiff about the misuse of position have been denied. It has also been denied that neither there is any requirement of the decision of the tribunal nor any liability which compels any State to consult another State in the matter of planning of the projects for utilisation of its water resources and the contention raised by the State of Andhra Pradesh in this regard is wholly mis- conceived. The defendant further contends that the State of Andhra Pradesh not having utilised the opportunity to seek clarification under Section 5(3) of the Act with regard to the height of or any other specification of the Almatti F Dam is not entitled to raise this dispute in this Court by filing a suit under Article 131 of the Constitution. The defendant-State of Kamataka reiterated that the utilisation of water under the U.K.P. first at Almatti and later at Narayanpur downstream, is entirely within the scope of 173 TMC and in any event within the aggregate share of 734 TMC allocated to the defendant Kamataka and the construction of the Upper Krishna Project at Almatti and at Narayanpur is all consistent with the work specifications prescribed by the Expert technical bodies in all respect including the provision for river sluices. In respect of Clause XV of the Final Order of the tribunal, the defendant averred that the quantity of 155 TMC considered in respect of Upper Krishna Project does not restrict the defendant Kamataka from planning increased utilisations by taking into account quantities of 34 TMC regeneration, 23 TMC

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of water by diversion of Godavari waters and of 50% of the surplus flows becoming available after the adoption of Scheme "B" devised by the tribunal. It is contended that the tribunal having not provided for allocation or utilisation project-wise, so long as there has been no contravention of the mass allocation made, the plaintiff has no grievance and is not entitled to file the' . suit. It has been stated in the written statement that in the re- submitted modified proposal dated 21st of April, 1996 for Upper Krishna Project Stage II as multi-purpose project, incorporating compliance of the various comments of CWC and also then again proposing a FRL of 524.256 meters, clearly stating that even though the dam was to be raised to its final level of 524.256 m, the utilisation for irrigation would be only 173 TMC as per the readjust- ment of the project-wise allocations in the Master Plan within the scope of the c Scheme "A" allocation of 729 TMC and as such, there has been no deviation, so far as the height of the dam at Almatti is concerned. With regard to the allegations made in the plaint, concerning development seeking a political solution to the dispute, the defendant-Kamataka denies all the averments made in that respect and asserts that execution of projects is within its entitlement D and limits permitted by the decision of the tribunal. With regard to the initiative taken by the Prime Minister of India by holding a meeting on 10.8.1996, it has been stated that such initiative was frustrated by the uncompromising and unreasonable attitude of political leaders of Andhra Pradesh. So far as the Committee of four Chief Ministers are concerned, it has been averred that the Committee of Experts, constituted by the four Chief E Ministers even did not frame any terms of reference for consideration, though requested by the State of Kamataka and it conducted the proceedings in a summary mam1er. The Chief Minister of Karnataka in fact had apprised the Chief Minister of West Bengal about the same by letter dated 19.12.1996 and after receipt of the so-called report of the Expert Committee, the Chief F Minister of Karnataka had conveyed its reaction to the findings by his letter dated 25.2.1997 to which the Chief Minister of West Bengal had replied that the points are being examined and according to the State of Kamataka, the matter remained inconclusive and as such camiot have any binding effect. In the written statement, the defendant No. 1 also averred that the findings of the said Expe1t Committee are erroneous. With regard to the allegations in the G plaint that storage of huge quantity of water by construction of Almatti Dam would affect t11e interest of Andhra Pradesh and its inhabitants, the defendant Karnataka denies the same and also stated that the dam is intended to utilise about 173 TMC of water for irrigation and the remaining storage water will be used for non-consumptive purpose i.e., production of power and, therefore, H

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A the water will tlow down to Andhra Pradesh and the said State will not be affected in any manner. With respect to allegations in the plaint regarding incorporation of Chamundi Power Corporation Ltd., the State of Kamataka has averred that the State is pursuing the matter before the Central Electricity Authority in accordance with law and the question of getting the consent of the plaintiff does not arise. So far as the assertions made in the plaint about B the cascading and far-reaching effect on the environment is concerned, the State of Kamataka denies the same. On the question of alleged submergence, it has been averred that the State of Kamataka would take all adequate steps ~- to provide compensation in accordance with law and rehabilitate the displaced population, if any. The assertions that Almatti Dam would render the major c projects in Andhra Pradesh redundant, has been denied. So far as the allegation regarding violation of environmental law is concerned, it has'been averred in the written statement that the applications for environmental clearance ~e under process by the Government of India and the State of Kamataka has not done anything without the appropriate clearance from the Appropriate Au- thorities. According to the defendant-State of Kamataka, the averments in the D plaint are mis-leading and lacking of bona fides and all allegations and insinuations against the Chief Minister of Kamataka are denied. All other allegations of illegality being perpetuated by the State of Karnataka have been denied. So far as creation of Jal Nigam is concerned for effective execution of the Upper Krishna Project, the State of Kamataka contends that the said E Nigam is wholly Government owned company and all its activities are controlled by the Department of Irrigation, Govt. of Kamataka and, therefore, the allegation of the plaintiff that the State is abdicating its responsibility for the execution of the project is incorrect and is denied. It has been categorically averred that the Kamataka State would be subjected to irreparable loss if the works at Almatti are stopped and the State of Andhra Pradesh wants to reap the benefit of the liberty to use the surplus water flowing in the river in view of the mass allocation made in favour of the three States. It has been specifically averred that the storage of additional water between the height of 519.6 to 524.256 meters will be used for power production only and not for irrigation till the augmentation of waters by Godavari diversion and surplus waters under Scheme "B" is made available. It has been specifically averred as to how the Government of Karnataka has sought for approval for taking up the cluster of hydel projects at Upper Krishna Project in phases and how the Central Electricity Authority has accorded "in-principle" clearance. At the cost of repetition, the State of Karnataka has averred that there has been no deviation of the decision of the tribunal and the Almatti Dam has been planned

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for utilisation of the allocated water by the tribunal in favour of the State of A Kamataka. According to this defendant, the State of Andhra Pradesh being the last riparian State is receipient of abundant waters comprising the un-utilised share of upper riparian States in addition to its allocations made in its own favour and, therefore, no case has been made out establishing any injurious hardships so as to entitle the State to get a discretionary relief of injunction. B The defendant also averred that the plaintiff has not placed an iota of evidence based on any acceptable material establishing the alleged loss of drinking water, food grains or unemployment and all such allegations are falacious. According to the State of Kamataka, all the revised schemes at all relevant times had been submitted before the Appropriate Authorities of the Central Government and projects are being taken up only after getting clearance from c the competent authorities. It has been averred at the end that the basis of the suit being that the allocation made by the tribunal is project-wise and the said basis being in-correct, the plaintiff is not entitled to tl.te reliefs prayed for by filing the suit under Article 131 of the Constitution. D Union of India - defendant no. 2 in its written statement raised the preliminary objection about the maintainability of the suit on the ground that the suit as framed is not maintainable in view of Article 262 of the Constitution of India read with Section 11 of Inter-State Water Disputes Act, 1956. Generally denying the allegations made in the plaint the Union of India took the positive stand that Kamataka multipurpose project Stage II which envis- E ages generation of Hydropower is still under examination and the project report provides for Hydropower generation by storing water at the addition of storage space from 519.6 M to 524.256 Mand it has been indicated that after generating the Hydropower the tail race water after power generation will be let into the river Krishna and the utilisation of river Krishna water under UKP F will be within 173 TMC. With regard to the plaint allegation that under the Award Tribunal has allocated water projectwise, the Union of India submitted that the allocation of water is gross allocation and not the project wise allocation. It has been further stated that the State is entitled to utilise the gross amount of water for any such projects and so long as utilisation by Kamataka is within 173TMC in upper Krishna project. there is no violation of Krishna G Water Disputes Tribunal Award. It has also been indicated that Stage I of UKP has been approved and Stage II is under various examination and not yet been approved. So far as the plaint case that Central Government is required to consult other States while clearing projects of one State, it has been averred that there is no obligation on the Central Government to consult said party H

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A State while clearing projects of other party State of Krishna basin when they are within the framework of KWDT Award. The financial assistance by .....,.... Central Government is being given to the State in the shape of grants and loans. So far as Almatti project in particular is concerned the stand of the Union Government in its written statement is that UKP stage I has already been approved and it was approved by the Planning Commission on 22nd B April, 1978 under which the construction of Almatti Dam to a partial height corresponding to FRL 512.2 m with solid spillway crest level at EL 500 m and with 12.2 m high gates. But in view of the technical difficulty of dismentaling and reerecting the radial gates of such height in Stage II, the Government of Kamataka desired to do construction of Almatti dam with full section as c required for ultimate stage and solid crest upto 512 min UKP Stage I itself. The revised proposal of Government of Kamataka was examined by the Central Water Commission and considered by Technical Appraisal Committee in its 20th Meeting held on 12.5.1982. The TAC recommended that the clearance of the Government of India for raising Almatti Dam in full width -'""( upto EL 500 m may be accorded subject to the observation that revised D estimate be submitted by the State Government. Subsequently, the State Government came up with modified proposals with Almatti spillway crest at EL 509 m and 15 .2 high radial gates with a view to reduce submergence under Stage I of the project. This revised stage I estimate got the approval of the Planning Commission on 24.4.1990. According to the written statement of the E Central Government, Stage I of UKP was duly approved by the Central Water -~

Commission as well as by the Planning Commission with certain modifica- tions enabling the State Government to take upto Stage II at later stage. It has further been averred that the Karnataka Government has revised Upper · Krishna Project Stage II (1993) as UKP Stage II Multipurpose project (1996) F and that project is under examination. The State of Andhra Pradesh has sent their comments to the said project and various appraising agencies are checking the design of gates from the structural aspect. But no final approval --.. .

has been given. The allegation of State of Andhra Pradesh that Central Government adopted partisan attitude has been denied and on the other hand it has been stated that the State of Andhra Pradesh has not been able to prove G that by constructing Alm'ltti Dam the State of Kamataka will be utilising more water than allocated by KWDT. It is in this context the Central Government has also averred that the State of Andhra Pradesh is constructing Telugu Ganga --,,.. - Project which is an unapproved Project. So far as the allegation in the plaint that State of Andhra Pradesh had not been consulted before the Department H of Environment and Forestcfeared the Upper Krishna Project, it has been

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' ~ averred that there is no obligation on the part of Department of Environment A and Forest, Government of India to obtain the views of State of And.bra Pradesh while clearing of the Upper Krishna Project of State of Karnataka. According to the Central Government the Award of the Tribunal is binding on the parties and the plaintiff has not been able to show any violation of the decision of the Tribunal. B _,.. On behalf of Ministry of Power who is Defendant No. 2 (C) a separate written statement has been filed giving reply to the averments made in paragraphs 56 and 57 of the plaint and it has been indicated that the expression "In Principle" clearance given by the Central Electricity Authority to Upper Krishna Project at Almatti does not tantamount to sanction of the project by c the competent authority. According to the said defendant while appraising various proposals for power project received from the States due care is taken by the Ministry of Power for proper evaluation. )r The State of Maharashtra - Defendant No.3 filed a written statement fully supporting the stand taken by the State of Karnataka and it has been averred in the written statement that the complaint of State of A.P. proceeds on certain assumptions which are not correct. With regard to the main question, namely, whether there was enbloc allocation or project wise alloca- -... tion the defendant State of Maharashtra categorically avers that the Tribunal equitably allocated the waters of the river Krishna by allocating the quantities enbloc or in mass quantities. Though it has discussed individual projects of each State only for the limited purpose of assessing the needs of each State in accordance with the principles of equitable distribution. It has further been stated in the said written statement that apart from the restrictions expressly stated in the final order of the Tribunal which has been notified by the Central F Government no other restrictions have been imposed on the method of use by each State within the allocated share of the State concerned and Tribunal has not put any restriction on the storage by each State and according to Clause VII of the final order the storage of water by each State would not be considered as use of water by the State c.oncemed. In the very written G

. statement several paragraphs of the Report of the Tribunal have been quoted to indicate that the ultimate allocation was enbloc and not projectwise and - further there has been no restriction or restraint placed by the Tribunal with regard to storage, size and height of dams in the Krishna Basin. The State has also referred to the subsequent conduct, that after the submission of original report and the decision of the Tribunal the Sta~e of And.bra Pradesh infact filed H

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/ A clarification note 9 and 10 on 7.5.1975 and 8.5.1975 raising objection to the ~ storage but ultimately withdrew those notes and did not want any clarification on the subject of storage which fortifies stand of the State of Maharashtra that there is no restriction on any State in respect of storage of water within the Krishna Basin so long as it does not exceed the enbloc allocation given by the Tribunal. According to this defendant the relief sought for in the plaint would B tantamount to a complete re-writing of the decision of the Tribunal which would be outside the scope of a suit under Article 131 of the Constitution. ~· After refuting the stand taken by the State of Andhra Pradesh in the plaint in paragraph 16 of the written statement the State of Maharasptra submitted , "that the plaintiff does not deserve to be granted any of the prayers prayed for c in this para and the Suit should be dismissed with costs". Having filed the aforesaid written statement on 7th July, 1997 fully supporting the stand taken by the State of Kamataka and seeking relief of the dismissal of the suit filed by the State of Andhra Pradesh an additional written statement was filed by the said State on 9th April, 1999 giving a clear go bye to the earlier written --1 D statement and taking a new stand in relation to the alleged construction of Almatti Dam with FRL RL 524.56 m. by the State of Kamataka. In this additional written statement it has been averred that by raising the dam height at Almatti, there is likelihood of eno1mous damage to private and public properties and works and structures including archeological structures and pilgrimage places in the State of Mal1arashtra. There would also be disruption -~

E of communications, enhanced distress and damages during floods each year due to sedimentation. It has been furtlier avened that the details of the magnitude, duration and extent of submergence were not clear to the State of Maharashtra as the said submergence has not been discussed by the Tribunal itself but on getting subsequent documents from the State of Karnataka and on ascertaining the effect of the proposed Almatti Dam at 524.256 m it appears that there would be large scale submergence of area in the State of Maharashtra and no State should be allowed to have its project which will have deleterious and adverse effect on the other State. It is in this connection in the additional written statement it has been further avened that the said State of Karnataka has not obtained the relevant clearance from different environment authorities and forest authorities and even the Central Water Commission has not given the clearance and, therefore, the State of Karnataka should be injuncted from raising the dam height from 519.00 m. to 524.256 m. until and unless the ~. - actual area likely to be submerged is made known after due survey. In the written statement the adverse effect of submergence have been indicated in different paragraphs and ultimately it has been prayed that the prayer h, i &

p. 365 Copy page pinpoint

j sought for by the plaintiff so far as it relates to Almatti Dam under UKP A should be allowed, namely, the State of Kamataka should be injuncted. Though the State of Maharashtra filed the aforesaid additional written state- ment taking the stand totally contrary to the stand taken earlier but no order had been passed on the same and it is only when the hearing of this suit began the Court passed an order that without prejudice to the contention of the State B of Kamataka the said additional written statement be taken into consideration on the basis of which an additional issue is also required to be framed.

On the pleadings of the parties, 22 issues were framed which are extracted hereinbelow:- c I. Whether the State of Karnataka has violated the binding decisions dated 24.12.1973 and 27.05.1976 rendered by the KWDT by execut- ing the projects mentioned in para 66, 68n & 69 of the Plaint? (A.P./ KAR)

2. Has this Hon'ble Court jurisdiction to entertain and try this suit? D (MAH.)

3. Does the Plaintiff prove that the allocation of Krishna Waters by the KWDT in its Final Order are specific for projects and not enbloc .,. . as contended by the Defendant? (MAH.) E

4. Does the Plaintiff prove that the upper States are not entitled to construct pr~ject without reference to and consent of the other States? (MAH.)

5. Whether the Plaintiff is entitled to a declaration that all the projects executed and/or which are in t11e process of execution by the State of Karnataka, and not in conformity with or in conflict with the Decisions of the KWDT are illegal and unauthorised? (A.P.)

6. Is not the Union Government duty bound to consult all the riparian States before accor<ling any approval/sanction/clearance in principle clearances to any schemes, projects proposed/undertaken, by any of the riparian States on the Inter-State river Krishna? (A.P.)

7. Whether the sanctions and the approvals granted by the 2nd Defendant to the State of Kamataka for the projects referred to in H

p. 366 Copy page pinpoint

A Issue I, without the prior concurrence of State of Andhra Pradesh are -r· valid and binding upon the Plaintiff? (A.P.)

8. Whether sanctions and the approvals granted by the 2nd defendant are liable to be reviewed, reconsidered afresh, after obtaining the views thereon of the other riparian States? (A.P.). B

9. (a) Whether the construction of the Alrnatti darn with a FRL • of 524.256 111 together with all other projects executed, in ·'it- progress and contemplated by Karnataka would enable it to utilise more water than allocated by the Tribunal? (A.P.) c (b) Whether Karnataka could be pe1mitted to proceed with construction of such a dam without the consent of other riparian States, and without the approval of the Central Government? (A.P.)

D 10. Whether the Plaintiff proves that the reservoir and inigation canals as alleged in paragraph 68 of the Plaint are oversized. If so, are they contrary to the Decision of the Tribunal? (A.P.)

11. Whether the Plaintiff State of Andhra Pradesh proves specific allocation/utilisation for UKP and canals as alleged? (A.P.) E 12.Whether State of Kamataka is entitled to provide for any irrigation under Alrnatti canals and ot11er new projects, when no allocation is made under the decisions of the KWDT? (AP.)

F 13. Whet11er t11e Defendant State of Kamataka is entitled unilaterally to reallocate/readjust the allocation/utilisation under the UKP or any ....... other project? Is concunence of other riparian States necessary? (A.P.)

14Copy pinpoint14. Whether the Union of India can permit and/or is justified in G permitting the State of Kamataka to proceed with various projects which are in violation of the decisions rendered by KWDT? (A.P.)

15Copy pinpoint15. Whether Upper Krishna Stage-II Multipurpose Project could be. executed without the environmental clearance under t11e Environment H (Protection) Act, 1986 and t11e Notification issued by the Central .

p. 367 Copy page pinpoint

Govenunent in 1994 in exercise of its power under the said Act and A _, the Rules made thereunder which mandatorily requires various analy- sis including dam break analysis?(A.P.)

16Copy pinpoint16. Whether the acts of the State of Kamataka adversely effect or would adversely effect th~. State of Andhra Pradesh, and if so, with B what consequences? (KAR)

17Copy pinpoint17. Whether Hippargi was always part of the UKP and on that basis ..,... the KWDT awarded 5 TMC utilisation thereunder? (AP.)

18Copy pinpoint18. Whether the utilisation of water under Chikkapada Salagi, Heggur c and 5 other barrages is not 33 TMC as assessed by the Plaintiff State? (AP.)

19.Whether the cumulative utilisations in the K2 sub-basin is 173 TMC as claimed by the State ofKamataka or428.75 TMC as assessed D by the Plaintiff State? (A.P.)

20.Whether the State of Kamataka has violated the KWDT award by proceeding with several new projects in the sub-basin such as K-6, K-8 and K- 9 in respect of which restrictions in quantum of utilisation "'f' have been imposed in the final decision of the Tribunal? (AP.) E

21.Whether utilisation under Alrnatti would be of the order of 91 TMC as claime~ in para 66(iii) of the plaint? (AP.)

22.To what reliefs if any, the plaintiff is entitled to? (AP.) F The additional issue framed as 9(C), because of the additional w1itten statement filed on behalf of defendant no.3 is to the effect, "Whether Kamataka can be permitted to raise the storage level at Alrnatti dam, above RL 509.16 meters in view of the likely submergence of territories in Maharashtra." G

Before we take up the different issues framed by the Court and answer the same in the light of the contentions raised as well as with reference to the documents filed in support of the same it would be appr~priate for us to notice the order of this Court dated 30th September, 1997 and its effect on the H

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A ultimate decision of the suit itself.

On 30th of September, 1997, this Court passed the following Order:

"Sh. F.S. Nariman, learned Senior counsel for the State of Kamataka- defendant No. 1 and Sh. T.R. Andhyarjuna, learned Solicitor General B appearing for the State of Maharashtra- defendant No. 3 referred to the prayer (a) (at page 72 of the Paper book) and submits that both these States namely, Kamataka and Maharashtra accept this claim of the plaint of the State of Andhra Pradesh and agree to the grant of relief in the suit in terms of prayer in clause (a) as under: c "(a) declare that the report/decision dated 24.12.1973 and the further report/decision dated 27 .5 .197 6 of the Krishna Waters Dispute Tribu- nal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Kamataka and Andhra Pradesh and also the -...( D Union of India.

In other words, there is no controversy in the Suit between the plaintiff and Defendarits 1 and 3 i.e. Andhra Pradesh, Kamataka and Mal1arashtra and that the report/decision dated 24.12.1973 and the further report/decision dated 27 .5 .1976 of the Krishna Water Disputes E Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh. There is thus no controversy between the three riparian States to this extent. The learned Attorney General appearin& for the Union of India submits that he is unable to make any statement today in this behalf as he has F to seek instructions in the matter. This statement made by the learned counsel for the three riparian States is placed on record to indicate that a partial decree to this extent on the basis of admission of the defendants (1 and 3, Kamataka and Maharashtra) can be passed and therefore, there is no need to frame :any issue to cover this aspect of the Suit." G In course of hearing of the suit arguments had been advanced on behalf of the State of Kamataka by Mr. Nariman that the aforesaid partial decree in terms\ ,.a- of prayer 'a' of OS No. 2 of 1997 unequivocally indicates that the entire report i.e. 24.12.1973 and the further report dated 27.5.1976 in entirety must be held H to be binding upon.three riparian States, and that being the position, there is

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. no logic on the part of the State of Andhra Pradesh to resist the prayer of A --'f Plaintiff No. 1 in OS No. 1 of 1997 to make Scheme 'B' binding on parties which Scheme obviously form a part of the report and the further report. Mr. Ganguli, learned senior counsel appearing for the State of Andhra Pradesh.on the_ other hand contended, that a prayer made by the plaintiff has to be understood in the context of the averments made in the plaint itself and not B bereft of the same. According to Mr. Ganguli prayer 'a' in the case in hand, if read in the light of the averments made in the plaint itself it would only mean that the plaintiff State having averred in the plaint that the Tribunal had made projectwise allocation which should be read into the fmal decision of the Tribunal which has been notified in the Official Gazette by the Government of India and, therefore, the State of Kamataka is not entitled to faise the height c of the Dam at Almatti to 514.256 meters whereby it would be able to store more than 200 TMC of water with the utilisation capacity of about 400 TMC. It is in this context Mr. Ganguli placed before us paragraphs 3.1, 3.2 and 3.3 of the written statement to indicate to us as to how the said defendant w1derstood the prayer 'a' in the plaint. Mr. Ganguli ultimately urged that the D final order of the Tribunal' can be equated with a decree in a civil suit and decree must be consistent with the judgment and, therefore, applying the said analogy the fmal order requires to be read in the light of the adjudication made by the Tribunal in tl1e final report. The learned counsel placed reliance on the following decisions in support of the aforesaid contentions:- ' E (i) Kalikrishna Tagore v. The Secretary of State, LR 15 Indian Appeals 186 at 192.3

(ii) Law Report 25_Indian Appeals at 107 -08

(iii) 1913 Vol. 25 Madras Law Journal 24. F

·- At the outset we are unable to accept the contention of Mr. Ganguli that the decision of the Tribunal which is ultimately notified under Section 6 of the Act can be held to be a decree of a s~it and the report being the judgment and, therefore, the decided case laws on which reliance has been placed has no G application at all. The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution is a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of tl1e very Act itself. A dispute or difference between two or more State Governments having arisen which is a water dispute under Section 2(C) of the Act and complaint to that effect being H

p. 370 Copy page pinpoint

A made to the Union Government under Section 3 of the said Act the Central Government constitutes a Water Disputes Tribunal for the adjudication of the dispute in question, once it forms the opinion that the dispute cannot be settled by negotiations. The Tribunal thus constituted, is required to investigate the matters referred to it and then forward to the Central Government a report setting out the facts as found by him and giving its decision on it as provided B under Sub-Section (2) of Section 5 of the Act. On consideration of such decision of the Tribunal if the Central Government or any State Government is of the opinion that the decision in question requires explanation or that guidance is needed upon any point not originally referred to the Tribunal then within three months from the date of the decision, reference can be made to c the Tribunal'tor further consideration and the said Tribunal then forwards to the Central Government a further report giving such explanation or guidance as it deems fit. Thereby the original decision of the Tribunal is modified to the extent indicated in the further decision as provided under Section 5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties. It is not required that the report containing the arguments or basis for the ultimate decision is also required to be notified so as to make that binding on the parties. This being the position, it is difficult to appreciate the contention of Mr. Ganguli that the decision of the Tribunal as notified, is in fact a decree of a civil suit and that decree has to be understood in the light of the judgment of the suit. We accordingly are n9t persuaded to accept the submission of Mr. Ganguli on this point but, at the same time we cannot accept the argument of ~--

Mr. Narirnan that the order of this Court dated 30th September, 1997 passed in the suit in terms of prayer 'a' must be held to mean that a decree is to be drawn up in OS 2 of 1997 making the entire report and the further report binding on the parties. When a prayer is made in the plaint the said prayer has to be understood in the light of the assertion of facts on which the prayer has been made. The defendant State of Kamataka understood the prayer on that basis as would appear from the averments made in the written statement of )l_ defendant no. 1 in paragraphs 3.1, 3.2 and 3.3. The aforesaid prayer had been made for the relief that notwithstanding enbloc allocation made in the final order of the Tribunal which is the decision of the Tribunal but the very basis

p. 371 Copy page pinpoint

; , -r to arrive at that decision being the projectwise allocation contained in the report the said projectwise allocation must be read into the enbloc allocation

• and, therefore, there must be restriction on the part of the State of Karnataka not to use more water in Upper Krishna Project than the allocated quantity of 160 TMC. Thus read the order of this Court dated 30th September, 1997, cannot be construed to mean that a decree has to be passed making the entire report as well as the further report of the Tribunal binding on the parties. So far as the question whether allocation made enbloc or projectwise the same has been answered while discussing issue nos. 1, 3 and 5 and in this view of the matter the earlier order dated 30th September, 1997 is of no consequence in disposing of the suit in question. c ISSUE Nos. I, 3 and 5:

Though, there are as many as 22 issues, which have been framed and necessarily to be answered in the suit, but in course of arguments advanced by Mr. Ganguli, the learned senior counsel, appearing for the State of Andhra D Pradesh, the entire emphasis was on the height of Almatti Dam Stage-II at 524.256 meters, as proposed by the State of Karnataka and as it appears from various project reports. In view of the arguments advanced by the counsel for the parties, these three issues essentially form the bone of contention. It is necessary to be stated that too many issues have been framed by the three different States and Court has also permitted such issues to be struck and most of the issues over-lap one another and in fact have no bearing in relation to the prayer made by the plaintiff. But instead of re-framing the issues, arguments having been advanced by the counsel for the parties, we would deal with each of them, but with specific emphasis on the vital issues. So far as the _,. thtee issues with which we are concerned at the moment, when read with the paragraphs of, the plaint, dealing with the same, it appears that the plaintiff Andhra Pradesh has made out a case in the plaint that under Scheme "A" which is the decision of the tribunal and which has been notified by the Central Government under Section 6 of the Inter-State Water Disputes Act, though there has been allocation of water enbloc but on going through the report itself and the very basis on which the mass allocation has been quantified, it would G

• indicate. that project-wise allocation must be read into the so-called mass allocation. This being the position, in Upper Krishna Project, the tribunal having allocated only 160 TMC of water, construction of Almatti Dam to a height of 524.256 meters itself constitutes an infraction of the decision of the tribunal, and, therefore, the Court should injunct the State of Karnataka from -H

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- A constructing a dam at Almatti up to the height of 524.256 meters. The stand of the State of Kamataka in the written statement filed as well as the. stand Of Union Govenunent and State of Maharashtra in its original written statement filed however is that, there. has been an enbloc allocation: by the tribunal and consequently, there has been no fetter on any State to utilise water up to a limited quantity in any of its project, except those mentioned in the order of· B the tribunal itself and that being the position, the plaintiff would not be entitled to an order of injunction in relation to the construction of Almatti Dam to a + height of 524.256 meters: Before we focus our attention to the evidence on record in answering these tlrree issues, in the light of arguments advanced by the c~urtsel for the pa~ties, it must be bOme in rni:nd that injunction being a c discretionary remedy, a Court may not grant an order of injunction, even ifall. the tlrree necessary ingredients are established and tllose ingredients are prirna facie case of infraction of legal rights, such infraction causes irreparable loss and injury to the plaintiff and the injury is of such nature that it cannot be .,,,. compensated by way of damages. In the case in hand, when the plaintlff lias prayed for an order of mandatory injunction to injunct the State of Kamataka D from constructing the dam at Almatti to a height of 524.256 meters and makes out a case of infringement of legal rights of the State of Andhra Pradesh, tlowing from the decision of the Krishna Water Disputes Tribunal, which decision has become final and binding on being notified by the Union ·~ Government under Section 6, what is required to be established is that in fact in the said decision of the tribunal, there has been a project-wise allocation in respect of Upper Krishna Pr~ject and if this is established, tllen the further fact required to be established is whether by construction of Almatti Dam up to a height of 524.256 meters, there has been any infraction of the said decision of the tribunal which has caused irreparable injury and damage to the lower riparian State of Andhra Pradesh and the said damage cannot be compensated by way of damages. Since the plaintiff-State has to establish all the aforesaid .. .,.... requirements, so that an order of injunction, as prayed for, can be granted, let us examine the very first mgredient namely whether under the decision of the tribunal, there has at all been a project-wise allocation as contended by Mr. Ganguli, appearing for the State Of Ari.dhfa Pradesh or the allocation was enbloc, as contended by Mr. Nauman, appearing for the State of Kamataka and reiterated by Mr. Salve, the learned SoliCitor General and Mr. Andhyarujina, ~ appearing for the State of Maharashtra. While d~ciding the Original.Suit No. 1 of 1997, filed by the State of K.amataka, negativing the contention of the said State to the effect that Scheme "B" evolved by the tribunal, whether forms ,~) H

- __..,. -r STATE OF KARNATAKA AND ORS. v. STATE OF AP. [PATTANAIK, J.]

a decision of the tribunal or not, we have already recorded the finding that Scheme "B" cannot be held to be the.decision of the tribunal inasmuch as it is only that order of the tribunal which conclusively decides the dispute referred to, and is capable of being implemented on its own, can be held to 373 A

be a decision of the tribunal under Section 5(2) of the Act. In fact the plaintiff in the present" suit also bases its case on the Scheme "A" and contends that B there has been an illfraction of the said Scheme "A" by the defendant-State -+ of Karnataka. If we examine the Final Order of the tribunal contained in Chapter XVI of the Original Report Exhibit PKl as well as the modified order after answering the application for clarifications made by different States, in the Further Report of December, 1976 in Chapter VII of Exh. PK2, which has been notified by the Central Government under Section 6 of the Act in. the c Gazette oflndia dated 31st of May, 1976, it is crystal clear that the allocation .... .; made, has been enbloc and not project-wis~ and, therefore, there is no fetter ;... on any of the Stat~s in utilising water in any project to a limited extent, excepting those contained in Clause (IX) of the decision. The allocation made to the three States of Maharashtra, Karnataka and Andhra Pradesh for their beneficial use has been provided in Clause (V) and subject to such conditions and restrictions as are mentioned in the subsequent clauses. Clause (V) of the decision which in fact makes the allocation, may be quoted herein below in y extenso:

"Clause V (A) The State of Maharashtra shall not use in any water year more than the quantity of water of the river Krishna specified hereunder:- (i) as from the water year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette upto the water year 1982-83 560 TMC. F

(ii) as from the water year 1983-84 up to the water year 1989-90 560 TMC plus a quantity of water equivalent to 10 per cent of the .excess of the average of the annual utilisations for irrigation in the Krishna river G basin during the water years 1975-76, 1976-77 and 1977-78 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects.

(iii) as from the water year 1990-91 up to the water year 1997-98 560 TMC plus H

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a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1982-83, 1983-84 and 1984-85 from its lo-- - own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects.

B (iv) as from the water year 1998-99 onwards 560 TMC plus + a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Kiishna river c basin during the water years 1990-91, 1991-92 and 1992-93 froni its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects.

(B) The State of Karanataka.sliall not use in any water year more than ~ the quantity of water of the river Krishna specified hereunder:- D (i) as from the water year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83 700 TMC plus ""<If.

E (ii) as from the water year 1983-84 up to the water year 1989-90 700 TMC plus

a quanti" of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna iiver F basin during the water years 1975-76, 1976-77 and 1977-78 from its ~-

own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects.

(iii) as from the water year 1990-91 up to the water year 1997-98 700 TMC plus G a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river ... basin during the water years 1982-83, 1983-84 and 1984-85 from its own projects using 3 TMC or more annually over the utilisations for H such irrigation in the water year 1968-69 from such projects.

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(iv)as from the water year 1998-99 onwards 700 TMC plus a quantity A of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects. B (C) The State of Andhra Pradesh will be at liberty to use in any water year the remaining water that may be flowing in the river Krishna but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year water of the river Krishna in excess of the quantity specified hereunder:- c (i) as from the water year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83. 800 TMC D (ii) as from the water year 1983-84 up to the water year 1989-90. 1 800 TMC plus

a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its E own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects.

(iii) as from the water year 1990-91 up to the water year 1997-98 800 TMC plus F a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1982-83, 1983-84 and 1984-85 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects. G

(iv) as from the water year 1998-99 onwards 800 TMC plus

a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river H