STATE OF ANDHRAPRADESH v. STATE OF KARNATAKAAND ORS.

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A 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.

(D) For the limited purpose of this Clause, it is declared that :-

B (i) the utilisations for irrigation in the Krishna river basin in the water year 1968-69 from projects using 3 TMC or more annually were as follows:-

From projects of the State of Maharashtra 61.45 TMC c From projects of the State of Karnataka 176.05 TMC

From projects of the State of Andhra Pradesh 170.00 TMC

(ii) annual utilisations for irrigation in the Krishna river basin in each water year after this Order comes into operation from the project of any State using 3 TMC or more annually shall be computed on the basis of the records prepared and maintained by that State under Clause XIII.

(iii) evaporation losses from reservoirs of projects using 3 TMC or more annually shall be excluded in computing the 10 per cent figure of the average annual utilisations mentioned in sub-Clauses A(ii), A(iii), A(iv), B(ii), B(iii), B(iv), C(ii), C(iii) and C(iv) of this clause."

The aforesaid Clause V, no doubt is in a negative form, prohibiting the F State of Maharashtra and State of Kamataka from using in any water year more than the water that has been allotted in their favour respectively but by ··no stretch of imagination, any restriction can be said to have been put on: any of the States in the aforesaid Clause V, so long as they do not use more than the quantity allotted in their favour in any water year. In other words under. .a Clause V of the decision, the State of Maharashtra is entitled to use up to 560 TMC in any water year and the State of Karnataka similarly is entiµed to use . · up to 700 TMC in any water year. The language used by the triblDlal in formulating Clause V of the decision is clear and unambiguous and as such ·., it is difficult for the Court to read into it any restrictions as submitted by the H learned senior counsel, appearing for the State of Andhra Pradesh. We may·

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mention at this stage, that the original report and the decision of 1973 was A

- marked as Exhibit PK-1 in OS 1/97 and the further repot and the decision of 1976 was marked as Exhibit PK-2 in OS 1197, and those two documents having been referred to by the parties in course of arguments as PK- 1 and PK-2. We have also in judgment referred as PK-1 and PK-2 which were exhibited as such in OS 1/97. B Mr. Ganguli, the learned senior counsel however contended before us -+ that before the tribunal, each of the three riparian States claimed water for their various projects, covering utilisation to the order of 4269.33 TMC, as is apparent from Exhibit PKI itself and then at a subsequent stage of the proceedings before the tribunal, all the party States agreed that 75% depend- C able flow up to Vijayawada in the river Krishna is 2060 TMC, which is, therefore much less than the total demand made by each of the States, ~- amounting to 4269.33 TMC. The learned counsel further urged that all the three States entered into an agreement on 7 .5 .1971, indicating therein that 20 of the projects in Maharashtra, 13 projects in Kamataka and 17 projects in D Andhra Pradesh should be protected and the parties also agreed to the specified quantity of utilisation of water in respect of each of the projects which could be treated as protected utilisation and total of such protected utilisation came to 751.20 TMC, as is apparent from the Original Report Exhibit PKI. It is the further contention that since in respect of one project in Maharashtra, five projects in Karnataka and five projects in Andhra Pradesh, E the parties could not agree to the quantity of utilisation which should be protected and all tlie States invited the tribunal to decide the extent of utilisation to be protected in respect of those 11 projects and the tribunal adjudicated the additional utilisation to the extent of 714.91 TMC in respect of 9 out of the 11 projects and thus the total protected utilisation out of the dependable flow at 75% dependability worked out at 1693.36 TMC , which of course includes 227.25 TMC on minor irrigations. Having thus arrived at the figure of 1693.36 TMC for protected utilisation, the balance quantity out of the dependable flotv to the extent of 366.64 TMC was further distributed by the tribunal to the extent of 50.84 TMC to Andhra Pradesh for Srisailam reservoir and Jurala Project. Out of the remaining 315.80 TMC, taking into consideration all germane factors, the tribunal allocated 125.35 TMC to Maharashtra and 190.45 TMC to Kamataka. Mr. Ganguli contends that while making these allocations, so far as Upper Krishna Project in the State of Kamataka is concerned; the tribunal merely permitted utilisation of only 52 TMC in the Right Bank Canal of Narayanpur in addition to the protected H

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A utilisation of 103 TMC already granted in respe~t of the Left Bank Canal under the Narayanpur Canal and, therefore, the total worked out at 155 TMC and there had been no allocation made by the tribunal so far as Almatti Dam is concerned. At a later stage when in its Further Report Exhibit PK2, the .... . \

tribunal allocated additional 5 TMC for utilisation under Hippargi Project, the conclusion is irresistible that in Upper Krishna Projects in Hippargi, Almatti B and Narayanpur, a total quantity of 160 TMC was allocated and this must be read into the Final Order in Clause (V), though not specifically mentioned therein. It is in this connection, Mr. Ganguli took us through the different pages of Exhibit PKI as well as the plaint and the written statement of the State of Karnataka. But as has been stated earlier, if the decision of the tribunal is its Pinal Order, as notified by th_e Central Government in exercise of power under Section 6 of the Act, we really fail to understand, how the aforesaid limitations can be read into the said decision, particularly, when Clause (V) of the decision is clear and there is no ambiguity in the same. It is undoubtedly · trne that while conside1ing the question of extent of allocation of water in favour of the three riparian States out of 2060 TMC of water at 75% dependability, the tribunal did take into account the different projects already undertaken by different States but consideration of those projects is only for the purpose of arnvmg at the quantity of water to be allocated and not for making any project-wise allocation, as contended by Mr. Ganguli. In Exhibit PKI itself, the tribunal records to the following "f' E effect:

"Our examination of the project reports and other relevant documents has a very limited purpose and it is to determine what are the reasonable needs of the two States so that an equitable way may be found out for distributing the remaining water between the two States. It is of course, always to be borne in mind that the allocation of waters though based on consideration of certain projects being found to be worth consideration are not on that account to be restricted and confined to those projects alone. Indeed the States (and this applies to all the States) would be entitled to use the waters .for irrigation in such manner as they find proper subject always to the restrictions and conditions whi.::h are placed on them."

This unequivocally indicates the purpose for which the projects of different States were being examined and it is explicitly made clear that the H States should be entitled to use tl1e waters for irrigation in such manner as they

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find proper, subject, always to the restrictions and conditions which are placed on them. Unless, therefore, any restriction or conditions in the decision of the tribunal can be found out for utilisation of a specific quantity of water out of the total allocated share in the Upper Krishna Project, there cannot be any fetter on the part of the State of Karnataka to make. such user. In the decision of the tribunal, there does not appear to be an iota of restrictions or conditions, which even can be inferred and, therefore, the submission of Mr. Ganguli, appearing for the State of Andhra Pradesh on this score cannot be accepted.

In the report of the Krishna Water Disputes Tribunal Exhibit PK-1 for the purpose of allocation of water in the Krishna Basin the Tribunal has examined each project of each of the .three States and then recorded its c conclusion as to whether the project is worth consideration. The Tribunal expressed the meaning of the expression "worth consideration" by saying that the expression is used in the sense that it means the requirements of an area in the State concerned. It would be appropriate at this stage to quote the exact findings of the Tribunal in this regard:- D "In saying that the project is worth consideration we do not wish to be understood to say that the project, if feasible, should be adopted. Likewise when we say that the project is not worth consideration we do not say that no water should ever be allowed for it. If at some future date more water becomes available it is possible that more projects may come upto the worth consideration standard. In assess- ing whether the project is worth consideration or not we have taken into account the physical characteristics of the area like rainfall etc., the catchment area, the commanded area, the ayacut of the project, the fact whether the project is meant for irrigating the scarcity area or not and such other facts. In other words we determine on pragmatic considerations what needs of the States of Maharashtra and Mysore can be satisfied so that an equitable way may be found out for distributing the balance of the dependable flows between the two States. It should not be taken our observations relating to the projects which we have noted as worth consideration are to be accepted in any way as final and binding by the Planning Commission or any other authority."

The aforesaid fmding fully negatives the contention of Mr. Ganguli, appearing for the State of AP., that the allocation was projectwise which can be read into H

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A the final order. Clause IX of the final order bas placed restriction on the use ..,,..._ of water in the Krishna Basin by the three States. The reasons for putting such restrictions appears to be that on the main streani there has been only '.~ restriction on river Bhima whereas on the side streams there has been restriction in case of Tungbhadra and Vedavathi sub-basin. Even in case of t= sub-basin K-3 there has been restriction on the State of Maharashtra from B using more than 7 TMC in any water year from Ghataprabha and the reason for such restriction is that the requirements of the State of Mysore for the projects in that sub-basin may suffer. Similarly restriction has been placed on _,._. the State of Andhra Pradesh not to use more than 6 TMC from the catchment of the river Koyna, the idea being that the waters of that river would reach c the main streams of river Bhima. Even while placing such resuiction the Tribunal has placed the upper limit slightly above the total requirements of that State as assessed from the demands made whic;h had been either protected or which have held as worth consideration. The very fact that restrictions have been put by the Tribunal in several sub-basins and no restriction has been put so far as sub-basin K-2 wherein Upper Krishna Project of the State of .... D Kamataka is being carried on clinches the point raised by the State of Andhra Pradesh and discussed in these three issues, namely, it is not possible to read any restriction for quantity of user of water in Upper Krishna Project by the State of Kamataka and so long as the total user does not exceed mass

E allocation, it cannot be said that the decision of the Tribunal is being violated infringing the rights of the State of Andhra Pradesh which can be prohibited ..... by issuing any mandatory injunction. After receiving the copy of the repmt and t11e decision of the Tribunal under Exhibit PK-1 tl1e State of Andhra Pradesh filed application for clarification, being clarification No.4 under Section 5(3) of the Act, requesting reduction of 1.865 TMC from t11e Koyna F Project of State of Maharashtra. Having filed such application on 5th March, 1976, the learned Advocate General of the State of Andhra Pradesh did not -,.... press the said clarification No.4 on the ground that the allocations are enbloc which is apparent from Exhibit PK-2 dealing with clarification no.4. Having made an unequivocal statement before the Tribunal itself that the allocations are enbloc we fail to understand how the State of Aildhra Pradesh has filed the suit making out a case that there has been any project-wise allocation by the Krishna Water Disputes Tribunal. The aforesaid statement of the learned Advocate General made before the Tribunal has not been explained either in ). ~

the plaint filed by the State nor even in course of hearing of the suit, and in our view, the State of Andhra Pradesh also fully understood that the allocations made under Scheme 'A' was enbloc. lt further appears from Exhibit PK-2 that

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the State of Andhra Pradesh did file a clarification no. 5 under Section 5(3) A ·-( of the Act praying that the maximwn quantity which could be utilised in K- 5 and K- 6 sub-basin of the State of Maharashtra and Karnataka should be specified and ultimately on 23rd August, 1974, the learned Advocate General for the said State did not press the clarification as it had no materials on record on which he could substantiate it. The very fact that State had not filed any B clarification application so far as K-2 sub-basin is concerned, though it did file such application in respect of sub-basin K-5 and K-6 as well as in case of Quana Krishna Lift IJ.rigation Scheme w1equivocally indicates that the State --.it had no grievance so far as the allocation enbloc made by the Tribunal and not putting any restriction of the user in K-2 sub-basin which ' consists of the Upper Krishna Project. This in our view, fully clinches the matter and the conclusion c is irresistible that under the decision of the Tribunal there has been mass allocation and no project-wise allocation as contended by the State of Andhra Pradesh in the suit. ill the aforesaid premises, we answer the three issues _..._ against the plaintiff and in favour of the defendants and hold that under the decision of the Tribunal the allocation of water in river Krishna was enbloc D and not project-wise excepting those specific projects mentioned in clauses IX and X of the decision.

ISSUE NO. 2

...... Though this issue has been raised at the behest of the State of E Maliarashtra but in view of the stand taken by the said State in the additional written statement and the additional issues framed thereon, the learned counsel appearing for the State of Maliarashtra did not argue the question of jurisdic- tion, and on the other hand conte11ded, that the jurisdiction of this Court in a suit under Article 131 of the Constitution should not be restricted or narrowed F down and on the other hand the Court should be capable of granting all ~ necessary reliefs in adjudicating the dispute raised. That apart on the basis on which the plaintiff State filed the suit and the relief sought for it cannot be said that the suit is not maintainable. We, therefore, answer this issue in favour of the plaintiff. G ISSUE NOS. 4, 6, 7 and 8 A These four issues are inter-linked and have been framed in view of the positive stand taken by the State of Andhra Pradesh that in case of an inter State river when any project of one State is considered by the Government of H

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A India or any other appropriate authority the other State should also be made aware of and their consent should also be taken. Though this stand had been taken by the plaintiff-State of And.hra Pradesh but all the three defendants ~ . ~

refuted the same. In course of hearing of the suit the learned counsel Mr. Ganguli has not placed before us any material or any law which compels the concerned authority to consult all the riparian States before sanctioning a •.:- B project of one State. In the absence of any legal basis for such stand we are not able to agree with the stand taken by the State of Andhra Pradesh that the Central Government was duty bound to take the consent of other States while .,.__ sanctioning any project of any of the riparian States. That apart, these issues I are academic in the context of the Upper Krishna Project of the State of c Karnataka and,in particular, the construction of the Almatti Dam. Before the Tribunal the State of Karnataka had submitted the report of Upper Krishna Project of July 1970 which was exhibited before the Tribunal as MYPK-3 and the said document has been marked as Exhibit PAP-42 in the present suit. The salient features of the said project, so far as Almatti Dam height is concerned, ~ D was shown as FRL 524.256 m and top of the Dam at 528.786 m. The entire project itself being there before the Tribunal, though the Tribunal did not consider it necessary to discuss the project in particular in view of enbloc allocation made by it, the grievance of the State of Andhra Pradesh that the project was being SU1Teptitiously constructed is devoid of any substance. We, therefore, answer the aforesaid issues against the plaintiff. E --f-

ISSUE NO. 9 (a) (b)

This issue is an important issue in the present suit and the relief sought for essentially depends upon the findings arrived at on this issue. The entire l-

F issue has to be decided on the basis as to whether there exists any prohibition in the decision of the Tribunal from constructing Dam at Almatti upto 524.256 ~-

meter or from storing any particular quantity of water therein. And if the answer is in the negative then the prayer for injuncting the State of Karnataka to raise the Dam height upto 524.256 has to be r~jected. If the decision of the Tribunal is examined from the aforesaid stand point and in view of our conclusion that it is that final order which has been r.otified in the Official Gazette by the Central Government under Section 6 of the Act which is the decision of the Tribunal, we find nothing stated therein which even can be held ) . to be a prohibition or restriction on the power of the State of Karnataka to have the height of Dam upto a particular height. In this view of the matter the plaintiff's prayer to injunct the State of Karnataka from constructing the Dam

STATE OF KARNATAKA AND ORS. v. STATE OF AP. [PATTANAIK, J.) 383 height at Almatti upto 524.256 meter cannot be granted. The issue has two sub-issues ; Sub-issue 'a' relates to the height of Almatti Dam ;and sub-issue 'b' being on the question whether State of Karnataka could be permitted· to proceed with the construction without the consent of the other riparian States and without the approval of the Central Government? At the outset it may be stated that though the State of Karnataka had produced its project report relating to the construction of the Almatti Dam as per Exhibit PAP-42 but neither the Tribunal had c~msidered the same nor any decision has been arrived at on the question of height of the said Dam. Even after the original report and the decision being made known under Section 5(2) of the Act as per Exhibit PK-1 the State of Andhra Pradesh also did not raise any dispute or clarificatory application objecting to the construction of the Almatti Dam or even to the c height of such Dam under Section 5(3) of the Act. In the absence of a decision of the Tribunal on the question of construction of Dam at Almatti or its height and mass allocation made, being binding upon all parties after being notified under Section 6 of the Act, the grievance relating to the construction of Dam at Almatti or to its height would be a matter of water .dispute within the D meaning of Section 2(C), in as much as it would be a matter concerning use of water of river Krishna and, therefore, cannot be a matter for adjudication in a suit under Article 131 of the Constitution of India. If the complaint of the State of Andhr~-Pradesh is that by constrnction of Almatti Dam which is an executive action of the State of Karnataka the State of Andhra Pradesh is likely to be prejudicially affected then also on such complaint being made to the E Union Government under Section 3(a) the matter could be referred to a Tribunal for adjudication. But, we fail to understand how this Court could entertain the aforesaid lis and decide the same, particularly when the Tribunal has not focussed its attention on the same nor has made any adjudication in

-- respect to the construction of Dam at Almatti or its height. Needless to mentien that otwithstanding the allocation of water in river Krishna beir.J.g made enbloc no State can construct any project for use of water within the State unless such project is approved by the Planning Commission, the Central Water Commis- F

sion and all other Competent Authorities who might have different roles to play under different specific statutes. Under the federal structure, like ours, the Ce~tral Government possesses enormous power and authority and no State can G on _its own carry on the affairs within its territory, particulary when such ~roJects may have adverse effect on other States, particularly in respect of an mter_ State river w~ere. each riparian State and its inhabitants through which the nver flows has its _nght. From the averments made in the plaint it is crystal clear that the State of Andhra Pradesh feels aggrieved by the proposal of the H

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A State of Kamataka to have the Dam height at Almatti FRL 524.256 m. In the plaint itself in paragraph 51 the plaintiff has referred to the observation of the Committee to the effect:

' "For required utilisation of 173 TMC at UKP the height of the Dam " at FRL 519.6 m would be adequate." B The Committee referred to in the said paragraph is Expert Committee which the four Chief Ministers had appointed, which Committee had exam- ined _the pros and cons of the Almatti Dam and the aforesaid views of the Expe1t Committee was approved by the four Chief Ministers who had been c requested by the Prime Minister of India to intervene and find out the efficacy or otherwise of the stand of Karnataka to have Almatti Dam upto the height of FRL 524.256 m. The said Expert Committee had observed that the proposal of the State of Kamataka of having Upper Krishna Project with FRL 524.256 m in Stage II at Almatti has not been approved by the Government of India. And it has been fmther observed that it would be desirable to proceed with utmost caution in the larger interest of the Nation to wait and watch operation of various Krishna system upstream and down stream before embarking on creating larger storage at Almatti Darn than what is needed to suit the prevailing conditions. We are taking note of the observations made by the Expert Committee for the purpose that the plaintiff having failed to establish its case for getting an injuction, would it be appropriate for this Court to allow the State of Karna:taka to have the height of the Dam at Almatti at 524.256 m or it would be obviously in the larger interest of the country and all the States concerned to allow the Dam upto the height of 519.6 m and then leave it open to the States concerned to put forth their grievances before the Tribunal F to be appointed by the Central Government for resolving the disputes relating to sharing of water in river Krishna. Reading the plaint as a whole it appears to us that the plaintiff State had not made any grievance for having a Dam at Almatti upto a height of FRL 519.6 m and on the other hand, the entire grievance centers round the proposal of the State of Kamataka to have the height at 524.256 m. The report of the Expert Committee referred to in the. G plaint has been exhibited as Exhibit PAP-212 and even that report indicates that the com~1laint of Andhra Pradesh was that the height of Almatti Dam at FRL 524.256m which has not been approved as yet by the Government of India, would adversely affect the lower riparian State of Andhra Pradesh both in the matter of irrigation as well as generation of power. The said report H further reveals that the State of Kamataka is desirous of having the Dam height

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTANAIK, J.) 385 at FRL 524.256 m so that it can store its share of water available to it under A --- Scheme 'B' when it con.ies. It is only on fructification of Scheme 'B' the need for a larger storage at Almatti would arise, and therefore, the State is planning ahead to have the height of the Dam at 524.256m. According to the report of the said Expert Committee even if the height is allowed not upto 524.256 m ·- it can be allowed later only when the necessity arises and technically it is B feasible. The report also records that for utilisation of 173 TMC at Almatti and Narainpur the height of the Dam required would be 519 m and not 524.256 ..... m. Thus an expert body appointed by the four Chief Ministers of 4 different States who are not in any way connected with the inter-State river Krishna taking into account the present need envisaged by the State of Kamataka for utilisation of 173 TMC at Upper Krishna project and taking into account the c report submitted by Indian Institute of Science at Bangalore did record a finding that the top of the shutters at Almatti should be fixed at 519.6 m which will provide a storage of about l 73TMC which along with storage of 37.8 >-- TMC at Narainpur will be adequate to take care of annual requirement of 173 TMC envisaged under Upper Krishna Project. In view of our conclusion in D O.S. 1of1997 holdin~ that Scheme 'B' is not a decision of the Tribunal, and as such, cannot be implemented by a mandatory order from this Court and the stand of the State of Kamataka before the so called Expert Committee being that they have designed the height of Almatti Dam at 524.256 m keeping in ,,. view that in the event Scheme 'B' fructifies the State will be able to get the E smplus water and store it as a carry over reservoir, as observed by the Tribunal itself, notwithstanding the fact that the plaintiff has failed to establish a case on its own for getting the relief of injunction in relation to the construction of Almatti Dam by the State of Kamataka, it would be reasonable to hold that though the State can have the Dam at Almatti but the height of the said Dam should not be more than 519.6 m, particularly when the State of Kamataka has F ~ not been able to indicate as what is the necessity of having a height of Dam at 524.256 m when Scheme 'B' is not going to be operated upon immediately. The Upper Krishna Project Stage II, detailed project report of October 1993 which has been exhibited in the present case as PAP 45 also indicates that minimum FRL required to get 173 TMC utilisation is found to be 518.7 m. It is in that report it has been indicated that it is because of probable maximum G flood of 31000 qmx., the water level is expected to go upto 521 m and, therefore, the proposal is to keep the height of the gate to 521 from the crest level with 2 rats. as the gate height. It may be stated at this stage that the height of the Almatti as approved by the Competent Authority is crest Jevel 509 meter and it is in this context to have the height at FRL 524.256 m the State of H

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A Kamataka has proposed to have the gate height of 15 meters. But as has been indicated earlier, since the entire basis of the State of Kamataka to have the ---- .. height of the Dam at 524.256 mis contingent upon implementation of Scheme 'B' of the Tribunal thereby entitling the State of Kamataka to get its share in excess water and continue the Almatti Dam as a carry over reservoir and since f.'

we have decided against the State of Kamataka in O.S. 1 of 1997 which the B State had filed for implementation of Scheme 'B', there is absolutely no justification for the said State to have the Dam height at Almatti of 524.256 m. We hasten to add that at the same time there cannot be any injunction or . ~ prohibition to the said State of Kamataka for having the Dam height at Almatti upto 519.6m which would be in the interest of all concerned. c Mr. Ganguli, the learned senior counsel, appearing for the State of Andhra Pradesh submitted that the State of Kamataka in the Project Report filed before the Central Water Commission in respect of UKP Stage II, itself indicated that the minimum FRL required at Almatti Reservoir is 519.60 M ~ as per Exhibit PAP 46. In the written statement also, the State of Kamataka D also indicated that contemplated height of Dam at 524.256 meters is for additional storage, though for the purpose of generation of power which is non-consumptive use and at a height of 524.256 meters, it would utilise 302 TMC, which would be in excess of the enbloc allocation of 734 TMC. Mr.

E Ganguli also contended that the Upper Krishna Multipurpose Stage II Project Report of 1996 as per Exh. PAP 48, would indicate that the State has planned .... irrigation from the water at Almatti which the State would receive under Scheme "B" being implemented. This being the position, the very idea of having the dam height at Almatti at FRL 526.256, is even contrary to the mass allocation made in its favour under Scheme "A" and, therefore, the State F should be injuncted. We are unable to appreciate this contention of the State of Andhra Pradesh inasmuch as on today the Central Government as well as ~--

the appropriate authority have not sanctioned the Upper Krishna Project Stage- II with the dam height at 524.256 meters. It would not be possible for this Court to pronounce that there will be a v~olation of the mass allocation if the State of Kamataka is allowed to have,,.the dam height at Almatti at 524.256 G meters, though as stated earlier, according to the State of Kamataka itself for utilisation of 173 TMC, the required dam height is 519.6 meters. It is under these.circumstances, we are of the considered opinion that there should not be ). any bar against the State of Karnataka to construct the dam at Almatti upto the height of 519.6 meters and the question of further raising its height to H 524.256 meters should be gone into by the tribunal, which learned Solicitor

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General agreed on behalf of Govt. of India to be constituted immediately after the delivery of judgment of these two suits, so as to mitigate the grievance of each of the riparian States on a complaint being made by any of the States .. So far as· sub-issue (b) is concerned, we really do not find any substance in the contention of Mr. Ganguli, the learned counsel appearing for the State of Andhra Pradesh. Though it may be fully desirable for all the States to know about the developments of the other States but neither the law on the subject require that a State even for utilisation of its own water resources would take the consent of other riparian States in case of an Inter-State river. So far as the second part of Issue 'b' is concerned, the answer is irresistible that the project of each State has to be approved by the Central Government as well as by other statutory authorities and the Planning Commission, but for which· c a State should not proceed with the construction of such project. Issues"9(a) and (b) are answered accordingly.

ISSUE 9(C) D.· Issue 9(C) had been framed while allowing the additional written statement of the State of Maharashtra, which relates to the question of _submergence. It is to be noted that in the original written statement filed by the State of Maharashtra, a positive stand had been taken that under the decision of the tribunal, there has been an enbloc allocation of water in favour of each of the three riparian states and as such there was no bar on the State E of Karnataka to have a dam at Almatti up to any height and, therefore, it was prayed that the suit filed by the Andhra ·Pradesh should be rejected. In the additional written statement that was filed by the State of Maharashtra, it has however been averred that the eventual submergence of area within the State of Maharashtra had not been known earlier and, therefore, neither before the p · tribunal nor in the original written statement filed, any grievance had been niade with regard to the construction of dam at Almatti to a height of 524.256 meters, but since the joint study made by the officers of both the states have brought out that a large area within the State of Maharashtra would get submerged, if Karnataka is pe1mitted to have the dam height at Almatti up to 524.256 meters, the State of Maharashtra has brought these facts to the notice G of this Court in the additional written statement and the additional issue has been framed. In the absence of any relief being sought for in the plaint by the plaintiff against the State of Maharashtra, whether the defendant State of Maharashtra can claim any relief against the co-defendant is itself a debatable issue. Mr. Andhyarujina, the learned senior counsel, appearing for the State H

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A of Maharashtra , however contended that a suit filed in the Supreme Court under Article 131 of the Constitution is of a very peculiar nature and the normal principle of a suit filed in an ordinarY civil Court should not apply. According to Mr. Andhyarujina, if a dispute between the two states involving the existence or extent of a legal right of one State is being infringed by the action or in-action of another State, is brought before this Court invoking B jurisdiction under Article 131 of the Constitution, this Coprt would be fully justified in entertaining and adjudicating the said dispute, no matter whether the dispute is raised as a plaintiff or a defendant in any proceeding before the Court. It is in this context the learned counsel referred to the observations of Bhagwati J and Chandrachud J, in the case of State of Ka~ataka v. Union of c India, (1978] 2 SCR l; wherein Hon'ble Bhagwati J had indicated that the original jurisdiction of the Supreme Court under Article 131 on being invoked by means of filing a suit, the Comt should be careful not to be influenced by the considerations of 'cause of action' which are germane in suit and the scope and ambit of the said jurisdiction must be determined on the plain terms of ~. D the article without being inhibited by any a priori considerati~ns. The learned Judge in the same decision had also indicated that the very object of Article 131 seems to be that there should be a Forum, which could resolve such disputes between two States or the State and the Union and that forum should be the highest Comt in the land so that the final adjudication of disputes could be achieved speedily and expeditiously without either party having to embark on a long tortuous and time consuming journey through a hierarchy of Courts. Mr. Andhyaiujina also relied upon the observations of Bhagwati J in the aforesaid case to the effect:

"What article 131 requires is that the dispute must be one which involves a question on which the existence or extent of legal right depends. The article does not say that the legal right must be of the plaintiff. It may be of the plaintiff or of the defendant. What is necessary is that the existence or extent of the legal right must be in issue in the dispute between the parties. We cannot construe A.J.ticle 131 as confined to cases where the dispute relates. to the existence or extent of the legal right of the plaintiff, for to do so, would be to read words in the article which are not there. It seems that because the mode of proceeding provided in Part III of the Supreme Court Rules for bringing a dispute before the Supreme Court under Article 131 is a suit, that we are unconsciously influenced to import the notion of 'cause of action', which is germane in a suit, in the interpretation

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of ArtiCie 131 and to read this article as limited only to cases where some legal right of the plaintiff is infringed and consequently, it has a 'cause of action' against the defendant. But it must be remembered that there is no reference to a suit or 'cause of action' in Article 131 and that article confers jurisdiction on the Supreme Court with reference to the character of the dispute which may be brought before it for adjudication. The requirement of 'cause of action', which is so necessary in a suit, cannot, therefore, be imported while construing the scope and ambit of Art. 131."

The learned counsel Mr. Andhyarujina, also relied upon the observa- tions of Bhagwati J in the said decision to the following effect:- c "What has,. therefore, to be seen in order to determine the applicability of Art.131 is whether there is any relational legal matter involving a right, liberty, power 7r immunity qua the parties to the dispute. If there is, the suit would be maintainable, but not otherwise." D

Reliance was also placed on the observations of Chandrachud J, in the self same case, which may be extracted herein under:-

"By the very terms of the article, therefore, the sole condition which is required to be satisfied for invoking the original jurisdiction E of t11is Court is tllat the dispute between the parties referred to in clauses (a) to (c) must involve a question on which tl1e existence or extent of a legal right depends."

Chandrachud J also had categorically stated:- p

"I consider that the Constitution has purposefully conferred on this Couit, a jurisdiction which is untrammeled by considerations which fetter the jurisdiction of a Court of first instance, which entertains and tries suits of a civil nature. The very nature of the dispute arising under Alticle 131 is different, bot11 in form and · G substance, from t11e nature of claims which require adjudication in ordinary suits."

Mr. Andhyarujina, also referred to the comments of Mr. Seervai in his book, wherein the autlior has said tliat it is reasonable to hold that the court H

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A has power to resolve the whole dispute, unless its power is limited by express words or by necessary implications and the Supreme Court would have the . power to give whatever reliefs are necessary for enforcement of a legal right claimed in the suit, if such legal right is established. Mr. Andhyarujina also contended that once the grievance of the State of Maharashtra having brought forth before the Supreme Court in a pending proceeding under Article 131 of B the Constitution, the jurisdiction having been invoked by the State of Andhra Pradesh, the Court has ample power under Article 142 of the _Constitution and for doing complete justice between .the parties, the Court would not be bound by the provisions of any procedure and can make a departure of the same. It is in this context, reliance· was placed on the observations made by the c Supreme Cowt in the case of Delhi Judicial Services v. State of Gujarat, (1991] 4 SCC 406, whereunder this Court has observed as follows:-

"No enactment made by Central or State legislature can limit or restrict the power of this Court under Article 142 of the Constitution, D though while exercising power under Article 142 of the Constitution, the Cowt must take into consideration the statutory provisions regulating the matter in dispute. What would be the need of "complete justice" in a cause or matter would depend upon the facts and circumstanc;es of each case illld while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter." ... Mr. Andhyarujina submitted that the likelihood of submergence within the State of Maharashtra on account of height of darn at Almatti being raised to 524.256 meters, was disclosed only during the pendency of the present suit and the State of Kamataka itself in its letter dated 10th of August, 1998 had communicated to the State of Maharashtra that the State need not approach the Court of law on this issue as the matter can be resolved amicably. According to the learned counsel, the State of Kamataka too agreed to carry out actual field surveys and calculations to determine the extent of submergence under the directions of Central Water Commission in its meeting dated 22.2.1999 and 'iliose studies are still under progress and further the Supreme Court itself had passed an order of status quo relating to the height of Almatti Dam by order dated 2.11.1998 and consequently, the State of Maharashtra never thought it fit to file an independent suit, inveking the jurisdiction of the Court under

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Article 131. But the State of Kamataka having obtained the liberty from this A Hon'ble Court to proceed further with the installation of the assembly of the gates by order dated 4.11.1998 and the said State of Kamataka refusing to give an undertaking to the State of Maharashtra not to raise the height of the Almatti Dam beyond the present level of 509 meters, the State of Maharashtra was compelled to put forth its grievance on the question of likely submergence B of its territory and has prayed for the relief of injunction against the State of Kamataka for raising the dam height up to 524.256 meters. Mr. Andhyarujina also submitted that the exact extent of area to be submerged in the event the Almatti Dam is allowed to be constructed upto 524.256 meters, has not yet been ascertained and surveys are still on, but there cannot be any doubt that a large scale of the area within the State of Maharashtra wo1:J.ld get submerged. ! C Mr. Nariman, the learned senior counsel, appearing for the State of Kamataka did not seriously dispute the right of a co-defendant like State of Maharashtra i.

to put forth the grievances so as to get relief against another co-defendant, though he undoubtedly, submitted that in the event, the State of Maharashtra I was allowed to have the additional written statement and an adjudication of D the additional issues framed, the State of Kamataka should have been given I an opportunity, putting forth its case. He however contended that the dispute relating to submergence of tenitory of Maharashtra on account of the height I of the dam at Almatti being raised to 524.256 meters, cannot,be a matter of adjudication in a suit under Article 131, since the State of Maharashtra had ! not raised the dispute before the tribunal itself, even though the Project Report EI submitted by the State of Kamataka before the tribunal indicated the height I of the dam at 524.256 meters. According to Mr. Nariman, such a dispute would be a fresh water dispute and would not be a part of adjudicated dispute 1

and as such under Article 131 of the Constitution this dispute cannot be entertained and decided upon by this Court. Mr. Nariman also contended that I p the materials on record do not establish or do not help the Court to come to . a positive finding that in the event, the Almatti Dam is raised to 524.256 I meters, a large extent of the State of Maharashtra would get submerged inasmuch as the submergence, if any and the flow back, if any, would be in I the river itself and not any territory beyond the river. Mr. Nariman further urged that the State of Maharashtra did anticipate submurgence of its te1ritory I G as would appear from its stand before the tribunal which is apparent from paragraph 6.3.l(k) ofExh. MRK-1. It is true, according to the learned counsel I that the tribunal did not consider the said question but after the Original Repo1t I was submitted, Maharashtra could have filed an application under Section 5(3) of the Act, seeking clarifications on the question of submergence but, that was H

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A not admittedly done, which would indicate that it had no grievance on the question of submergence. Having examined the rival contentions on this issue, v.re have no hesitation to hold that the issue must be answered against the State of Maharashtra.

. It is no doubt true that the jurisdiction of the Court in a suit under Article B 131 of the Constitution is quite wide, which is apparent from the language used in the said article and as has been interpreted by this Court in the two cases already referred to (see [1978] 2 SCR 1 and [1978] 1 SCR 64). It is also true that Article 142 confers wide powers on this Court to do complete justice between the parties and the Court can pass any order or issue any direction that may be necessary, but at the same time, within the meaning of Article 131, the dispute that has been raised in the present suit is between the .State of Andhra Pradesh and State of Karnataka and question, therefore, would be whether it involve any existence or extent of a legal right of such dispute. In answering such a dispute, it may be difficult to entertain a further dispute on the question of submergence as raised by the State of Mabarashtra. a co- defendant. But in view of the stand taken by Mr. Nariman, without further delving into the matter and without expressing any final opinion, whether such a stand, as the one taken by Maharashtra is possible for being adjudicated upon, we would examine the merits of the said contention. .A bare perusal of the report of the tribunal setting out the facts as found by. it and giving its decision on the matters referred to it as per Exh.PKl as well as the Further Report of the said tribunal, giving explanation to the application for clarifi- cations filed by the different States, as per Exh. PK2, we find that the question of submergence within the territory of the State of Maharashtra on account of Almatti Dam in the State of Karnataka has not at all been discussed nor any opinion has been expressed thereon. The tribunal having given its decision on the question of sharing of the water in river Krishna on enbloc allocation basis, if the user of such water in a particular way, becomes detrimental to another State, then such a grievance would be a fresh dispute within the meaning of Section 2(C) read with Section 3 of the Act and it cannot be held to be an adjudicated dispute of the tribunal. We have already indicated that it is only an adjudicated dispute between the States on which a decision has been given by a tribunal constituted under Section 4 of the Act by the Government of India, can be a subject matter of a suit under Article 131, if there is any breach in implementation of the said decision of the tribunal. But a dispute between the two states in relation to the said Inter- State river arising out of the user of the water by one State would be a fresh water dispute and as such would

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [PATTANAIK, J.) 393 be barred under Article 262 read with Section 11 of the Inter-State Water A Disputes Act, 1956. The question of submergence of land pursuantto the user of water in respect of an Inter-State river allocated in favour of a particular State is inextricably connected with the allocation of water itself and the present grievance of the State of Maharashtra would be a complaint on account of an executive action of the State of Karnataka within the meaning of Section B 3(A) and also would be a water dispute within the ambit of Section 2(C) and, therefore, it would not be appropriate for this Court to entertain and examine and answer the same. We do appreciate the concern of the State of Maharashtra, when it comes to its knowledge that there would be large-scale inundation and submergence of its territory if the height of Almatti Dam is allowed to be raised to 524.256 meters, as per the latest Project Report of the State of c Karnataka, but such concern of the State of Maharashtra alone would not be sufficient for this Court to decide the matter and issue any order of injunction as prayed for in the additional written statement filed by the State of Maharashtra and on the other hand, it would be a matter for being agitated upon before a tribunal to be constituted by the Govt. of India in the event, a D complaint is made to that effect by the State of Maharashtra. We also do not find sufficient materials in this proceeding before us to enable this Court to come to a positive conclusion as to what would be the effect on the question of submergence, if the height of the dam at Almatti is allowed to be constructed up to 524.256 meters inasmuch as, according to the State of Maharashtra, the joint surveys are still on. It is too well settled that no Court E can issue an order of mandat01y injunction on mere apprehension without positive datas about the adverse effects being placed and without any definite conclusion on the question of irreparable injury and balance of convenience. TI1en again, while allowing a particular State to use the water of an inter- State river, if the manner of such user really submerges some land in some other F State, then the question has to be gone into as to what would be the amount of compensation and how the question of rehabilitation of those persons within the submerged area can be dealt with which really is an aspect of the doctrine of equitable apportionment and all these can be gone into, if a complaint regarding the same is made and the Government of India appoints a tribunal for the said purpose. But these things cannot be gone into, in a suit filed under G Article 131 as a part of implementation of an adjudicated dispute of a tribunal. It is also surprising to note that even though the Original Project Report of 1970 in relation to Almatti Dam had been produced before the tribunal, which was adjudicating the disputes raised by different States, yet the State of Maharashtra never thought of the question of submergence and never at- H

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A tempted to get that question decided upon. In the aforesaid premises, howso- ever wide the power of the Court under Article 142 of the Constitution may be, we do not think it proper to entertain the question of submergence, raised by the State of Maharashtra in its additional written statement and decide the question of injunction, in relation to the height of Almatti Dam on that basis. Issue 9 (c) is accordingly decided against the State of Maharashtra. B It would also be appropriate to notice at this stage another argument advanced by Mr. Andhyarujina, the learned senior counsel appearing for the State of Maharashtra, to the effect that in view of Clause XV of the decision of the Tribunal each State is entitled to use water allocated in their favour within . its boundary, the moment by user of such water by one State,I any territory of another State get submerged then it would be a violation of the decision of the Tribunal contained in Clause XV, and therefore, the said State should be injuncted from such user. Clause XV of the decision reads thus:- / "Nothing in the order of this Tribunal shall ~pair 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 in consistent with the order of this Tribunal."

The aforesaid Clause does not in any way interfere with the rights of a State E from using the water allocated by the Tribunal within its boundaries nor is this Clause capable of being construed that if any submergence is caused in any other State by such user, then the user becomes inconsistent with any order of the Tribunal. Mr. Andhyarujina's entire argument is based upon the expression 'regulate within its boundary' but that expression applies to the use F of water or enjoys benefits of water within that State. Since the question of submergence of any other State by the user of water by another State allocated -+-- in its favour is not a subject matter of adjudication by the Tribunal and in fact the Tribunal has not expressed any opinion on the same it would be ~ifficult for us to hold that submergence ipso facto even if admitted to be any within the State of Maharashtra by user of water by the State of Kamataka at Almatti G can be held to be inconsistent with the order of Tribunal. In this view of the matter we are unable to accept the submission of Mr. Andhyarujina, learned senior counsel appearing for the State of Maharashtra that the user of water by the State of Kamataka by constructing a Dam at Almatti is in consistent with Clause XV of the decision of Tribunal. Issue 9(C), therefore; is answered H against the State of Maharashtra.

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ISSUE NO. 10 A

The aforesaid issue has been framed in view of the averments made in paragraph 68 of the plaint. In the aforesaid paragraph of the plaint the plaintiff has indicated the figure in terms of acreage of land planned to be irrigated by different projects and excess utilisation of the water beyond the allocation made by the Tribunal in respect of different projects. The plaintiff obviously B is under a misconception that in the decision of the Tribunal there has been a projectwise allocation of water in respect of different projects in different States. We have already considered the matter at length and have come to the conclusison that the allocation was made enbloc and not projectwise and as such, the question that construction of oversized reservoir at Almatti is c contrary to the decision of the Tribunal does not arise. Besides Clause VII of the decision of the Tribunal indicates as to how use of water in a water year will be measured and it stipulates that while use shall be measured by the extent of depletion of the waters of the river Krishna in any manner whatsoever including losses of water by evaporation and other natural causes from man made reservoirs and other works without deducting the quantity of water which may return after such use to the river, but so far as water st9red in any reservoir across any stream of the Krishna river system is concerned, storage shall not of itself be reckoned as depletion of the water of the stream except to the extent of the losses of water from evaporation and other natural causes from such reservoir. The water diverted from such reservoir for its own use, however, has to be reckoned as use by that State in the water year. In view of this decision of the Tribunal assuming the State of Kamataka has the potentiality of storage of water at Almatti, in the absence of any materials placed by the plaintiff to indicate as to any diversion from such reservoir by the State of Karnataka for its own use, it is not possible to come to a F ·~· conclusion that there has been a violation of the decision of the Tribunal by the State of Kamataka by having potentiality of storage of water at Almatti, as contended by the plaintiffs counsel. It is in this connection it is worthwhile to .notice that after submission of the report and the decision in the year 1973 as per Exhibit PK-1 the Government of India had filed the application for clarification which was registered as Reference No. 1 of 1974 by the Tribunal G and Clarification l(b) was to the following effect :-

"While the Tribunal have laid down restriction on the use of water in certain sub-basins as well as the total use by each State, there may be locations where hydro power generation (within the basin) may be H

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A feasible at exclusively hydro-sites or at sites for multi-pmpose projects. At such sites, part of the waters allocated to the States, as also water which is to flow down to other States could be used for power generation either at a single power station or in a series of power stations. The Tribunal may kindly give guidance as to whether such use of water ~or power generation within the Krishna basin is permitted even though such use may exceed the limits of consumptive use specified by the Tribunal for each State or sub- basin or reach, and if so, under what conditions and safeguards."

The State of Andhra Pradesh to the aforesaid application for clarification submitted two.Notes Nos. 9 and 10 before the Tribunal on 7th May, 1975 and 8th May, 1975. In this note it was specifically pleaded that the Tribunal may be pleased to explain that the Upper State have no right to store water in excess of share allocated to them and in a manner which will affect the right of the State of Andhra Pradesh in the. dependable flow. Several grounds had been D . advanced by the State of Andhra Pradesh as to why such guidance is needed, particularly when under Scheme 'A' allocation there has been no express provision for sharing of deficiency. The Tribunal considered the same and ultimately noted in its further report under Exhibit PK-2 that the State of Andhra Pradesh withdrew the said note and consequently no ground for any further clarification. A note having been submitted by the State of Andhra ¥ E Pradesh seeking a clarification for fixation of a limit in the matter of storage of water by the upper riparian States and then ultimately having withdrawn the same the present grievance that construction of large sized Dam at Almatti by the State of Kamataka would adversely affect the State of Andhra Pradesh and its right could be infringed is devoid of any substance. The issue is accordingly p answered against the plaintiff.

ISSUES NO. 11 & 12:

These two issues center round the same question as to whether there was any specific allocation or utilisation at Upper Krishna Project and whether providing for irrigation under Almatti Canal is contrary to the decision of the Tribunal since no allocation for irrigation has been made thereunder. We have already discussed the relevant materials placed by the State of Andhra Pradesh as well as the decision of the Tribunal and we have come to the conclusion that the plaintiff - the State of Andhra Pradesh, has utterly failed to establish that intact there was any specific allocation by the Tribunal in respect of Upper

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-~ Krishna Project or the Almatti Reservoir and on the other hand, the allocation A JI'" was enbloc making it clear and unambiguous that States can utilise the quantity of water allocated in their favour within their territory. This being the position we have no hesitation to answer these two issues against the plaintiff State -Andhra Pradesh and we hold that the plaintiff has failed to produce any materials in support of the aforesaid two issues. These two issues accordingly B are answered against the plaintiff.

ISSUE N0.13 ·*" So far as this issue is concerned the question of entitlement of the State of Karnataka to reallocate or re-adjust utilisation under UKP or any other project unilaterally does not arise at all. If tl1e Tribunal would have made any c projectwise allocation and would have restricted the user of water under UKP to any particular quantity tl1en the question of re-allocation by the State of Karnataka on its own would have arisen but the Tribunal not having made any allocation in respect of the Upper Krishna Project which includes Almatti and having made an enbloc allocation so long as the total user by the State of D Kamataka does not exceed the enbloc allocation in its favour it cannot be said that there has been any violation by the State of Kamataka by planning to use any particular quantity of water at Almatti. Then again the question of getting concurrence of other riparian States, as has been raised by the State of Andhra Pradesh is wholly misconceived. Neither there exists any law which compels E any State to get the concurrence of other riparian States whenever it uses water in respect of inter-State river nor the decision of the Tribunal which allocates the water in the Krishna Basin on the basis of75% dependability which figure was in turn arrived at by an agreement of parties puts any condition to have the concurrence of other riparian State. In this view of the matter without F . .._ further dilating on this issue, we answer the same against the plaintiff.

ISSUE NO. 14

The aforesaid issue has been raised on the hypothesis that t11e Union of India is going to sanction different projects within the State of Kamataka which are in violation of the decision of Krishna Water Disputes Tribunal. As G has been indicated earlier, so far as the Upper Krishna Project is concerned, the Government of India has approved the Dam height at crest level of 509 meters. The subsequent revised project submitted by the State of Karnataka in 1993 and re- submitted in 1996 are still under consideration and no final decision has been taken thereon. The Union of India in its counter affidavit H

n.. 398 SUPREME COURT REPORTS [2000] 3 S.C.R. ~ A has categorically refuted the allegations made by the State of Andhra Pradesh ~ in this regard and on the other hand, it has been averred that State of Andhra Pradesh is going ahead with some project not sanctioned by the Union Government. In course of hearing Mr. Ganguli, learned Senior counsel appearing for the State of Andhra Pradesh, has not produced any materials in support of the aforesaid stand pertaining to issue no. 14.·We, therefore, decide B the said issue against the plaintiff.

~- ISSUE NO. 15

The aforesaid issue has been framed on the allegation of the plaintiff that c the State of Kamataka is likely to execute the Upper Krishna Stage II t multipurpose project without getting the environmental clearance under the Environment Protection Act as well as in violation of the Notification issued by the Central Government in exercise of its power under the same Act and the Rules made thereunder. Under Article 256 of the Constitution it is an ~

D obligation for the States to exercise their power ensuring compliance with laws made by Parliament and even it enables the Union Government to give such direction to a State as may be necessary for that purpose. In a federal structure like ours, the Constitution itself maintains balance by distributing powers between the Centre and the States and by conferring power on the Central Government to regulate and to issue directions whenever necessary. The ~ E several provisi0ns of the Constituti.on have been tested in the last 50 years and ;:- there is no reason to conceive that any State will force ahead with its project concerning user of water in respect of Inter State reservoir without getting the sanction/concurrence of the Appropriate Authorities and without compliance with the relevant statutes or laws made by the Parliament. It is a common F knowledge that the large scale projects planned by each of these States, are submitted to the Planning Commission for its approval and for getting ......... financial assistance. Such projects are then examined by different authorities .... and it is only after getting approval of the Planning Commission the same is submitted to the appropriate departments of the Government of India where again all the formalities are scrutinised and final sanction or permission is r;.- G granted. So far as user of water in respect of an Inter State Reservoir is concerned, the plans are also examined by the Central Water Commission, who ). is an expert body and the views given by such Commission also is taken into consideration by the Government of India. This being the entire gamut of procedure we really fail to understand on what basis the State of Andhra ~

H Pradesh has made the allegation and the issue has been struck in that respect. +- ~

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~ Needless to mention that every such projects whether being executed in the A State of Maharashtra or Kamataka or Andhra Pradesh must be approved by the appropriate authority of the Government of India and necessarily, there- / fore, before any approval is accorded, the project must be found to have complied with all the relevant laws dealing with the matter. It has not been placed before us that the State of Kamataka has carried out any project in B contravention of the provisions of any particular law made by Parliament or in contravention of any direction issued by the Government of India. This issue accordingly, in oll!· opinion, is pre-mature. But we hasten to add that all the projects of different States concerning user of water available to them in respect of an Inter State River must be duly sanctioned by the Appropriate Authorities of the Government of India after proper scanning and it is only c then the State would be entitled to carry out the same. The issue is answered accordingly.

.... ISSUE NO. 16 D If the issue in question is examined in relation to the construction of Almatti Dam, which in fact is the bone of contention in the suit itself, we have not been able to find out as to how the State of Andhra Pradesh has been or would be adversely affected or what would be the consequences adversely affected or what would be the consequences thereon. When a plaintiff wants to seek a relief of injunction by the action or inaction of the defendant on the E ground that such action or inaction has been grossly detrimental to the interest of the plaintiff State and has infringed the rights of the plaintiff State then in such a case it is obligatory for the plaintiff to put materials on record and establish the necessary ingredients to enable the Court to come to the conclusion that by such action or inaction of the defendant the plaintiff has F .....__ suffered irreparable damages . When we examine the averments in the plaint ,. as well as the documents sought to be relied upon by the plaintiff on this score, we find that there exists no materials on the basis of which it is possible for a Court to come to a conclusion that on account of the construction of Almatti Dam within the State of Karnataka the lower riparian State - the plaintiff has been adversely affected or is likely to be adversely affected. The complaint G and grievance of the plaintiff State is rather imaginary than real and on the records of this proceedings no materials have been put forth to enable the Court to come to a conclusion on the question of so-caUed adverse effect on · the State of Andhra Pradesh on account of the construction of Dam at Almatti. Mr. Ganguli, learned Senior Counsel appearing for the State of Andhra H

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A Pradesh refeITed to the written memorandum furnished to the Committee by ""'-· the State of Kamataka wherein the said State had unequivocally admitted that the additional storage in Almatti will cause a temporary reduction in quantum of flows going to And.bra Pradesh for a period of about three months during August to October which is made good later on. According to the learned counsel since those three months are vital for the crops in the State of And.bra B Pradesh the State will sustain iITeparable damages and, as such on the admission of the State of Kamataka a finding could be amved at. At the outset we must state that the written memorandum furnished by the State of Kamataka cannot be read in isolation by spinning out a particular sentence and must be read as a whole. Thus read we do not find any admission on the part c of the State of Kamataka indicating any reduction of flows to the State of And.bra Pradesh. Mr. Ganguli also pointed out to Clause XV of Scheme 'B' whereunder the Tribunal itself had come to the·conclusion about the possibility of water shortage and had empowered the concerned authority to make necessary adjustment. But what has been stated thereunder is in relation to the adoption of Scheme 'B' which has not been possible on account of lack of sincerity of the State of And.bra Pradesh and even thereunder the Krishna Valley Authority has been empowered as often as it thinks fit to determine the quantity of water which is likely to fall to the share of each State and adjust the uses of the authorities in such a manner so that by the end of water year each State is enable, as far as practicable, use the water according to their share. We need not further examine this aspect particularly when Scheme 'B' has not been operative so far and even this Court has refused to issue any mandatory injunction for adoption of Scheme 'B' in OS 1 of 1997 filed by the State of Kamataka. In the aforesaid premises, we do not have enough materials to come to the conclusion that the construction of Almatti Dam by p the State of Kamataka has in any way affected or likely to affect the State of And.bra Pradesh in any manner and consequently the said issue must be answered against the plaintiff.

ISSUE NO. 17

G Under this issue, the question that arises for consideration is whether by the decision of the Krishna Water Disputes Tribunal, only 5.00 TMC was awarded for utilisation at Hippargi. While answering Issue No. 3, we have already held that the tribunal only made enbloc allocation and not any specific allocation for specific projects, excepting those mentioned in Clause (IX) and H under Clause (IX) so far as Hippargi is concerned, coming under K2 sub-

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-~ basin, the same does not find mention therein. In this view of the matter, the A said issue is answered against the plaintiff.

ISSUE NO. I8

The aforesaid issue has been framed on the basis of averments made in paragraph 66(v) and paragraph 68(b) item No. 4. The ave1ment in paragraph B 66(v) is on the basis of Newspaper Repmt and the averment made in paragraph 68(b) item No. 4 is the own estimation of State of Andhra Pradesh. Defendant No. I - State of Kamataka denies ihe contents of the averments in the plaint vide paragraph No. 12.88 and paragraph No. 12.111. TI1e counsel appearing for the State of Andhra Pradesh also did not place any material in support of the aforesaid issue in course of the arguments and the averments in the plaint c having been denied in the written statement, the issue in question must be answered against the plaintiff.

ISSUE NO. 19

TI1ough, the plaintiff-State of Andhra Pradesh on its own estimation, has D made an ave1ment in paragraph 68(b) to the effect that the plan utilisation by the State of Kamataka in K2 sub-basin is 428.75 TMC on the basis of which the aforesaid issue has been framed, but no positive datas have been placed :If. before us to come to the aforesaid c'onclusion. On the other hand, the State of Karnataka in its written statement has asserted that under Upper Krishna E Pr~ject, the utilisation would be to the tune of 173 TMC and this is apparent from several documents placed before the tribunal as well as in this proceed- ing. In this view of the matter, we answer this issue by holding that the plaintiff has failed to establish that the cumulative utilisation in K2 sub-basin of the State of Karnataka would be to tl1e tune of 428.75 'i'MC. At any rate, since we have already held that the allocation was enbloc and there is no restriction for utilisation in K2 sub-basin in the decision of the tribunal. The issue really does not survive for consideration. The issue is answered accordingly.

ISSUE NO. 20

This issue relates to the decision of the tribunal in Clause (IX), under which Clause, restrictions have been put to the extent indicated thereunder. But the State of Andhra Pradesh has not been able to establish the allegation made in this regard nor even the counsel, appearing for the State has made any submission thereon. During the course of hearing of the suit, on behalf of the State of Andhra Pradesh, written submissions had been filed and even after H

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A the close of the hearing, the State of Andhra Pradesh has filed a written ~- submission on 15th of March, 2000, in which also, there has been no mention about the alleged violation in sub-basin K-6, K-8 and K-9. We, therefore, answer this issue by holding that the plaintiff has failed to establish the same and the issue is answered against the plaintiff accordingly. B ISSUE NO. 21

This issue relates to utilisation 'of water under Almatti. In paragraph 66(iii), the plaintiff has made the averment, which has been denied and explained in the written statement by the State of Kamataka vide paragraph c 12.85 and the State of Karnataka further averred that the entire utilisation at Almatti is within its allocable share and no injury is caused to the State of Andhra Pradesh thereunder. Since, we have already held that under the decision of the tribunal, the allocation was enbloc and not project-wise, even --4 if it is held that utilisation under Almatti would be of the order of 91 TMC, D as claimed, the same would not violate the decision of the tribunal. That apart, we do not have any positive material, on the basis of which, it can be said that the utilisation under Almatti would be of the order of 91 TMC. The issue is answered accordingly.

E In course of arguments Mr. Ganguli, the learned Senior counsel for the State of Andhra Pradesh - had raised a contention that the State of Kamataka . to frustrate any decree to be passed by this Court injuncting the defendant no.1 from raising the construction of the Dam at Almatti at a height of 524.256 has already incorporated an autonomous body, called KJ:ishna Bhagya Jala Nigam Limited (KBJNL)and the State Government has divested itself of all powers relating to the construction of Dam at Almatti with the aforesaid Nigam and this has been designedly made so that any order or decree for injunction would not be binding. Since this argument had been advanced towards the conclud- ing stage and there was no assertion in the plaint in this regard, nor any issue had been struck by the Court, the State of Kamataka had been permitted to file an affidavit indicating the con-ect state of affairs in relation to the constitution of KBJNL and to allay or apprehension in the minds of the plaintiff State. An affidavit had been filed by the Secretary to the Government of Kamataka, Irrigation Depa1tment, who has also been nominated as Director of KBJNL, the said nomination having beenmade under Article 147(c) of the H Articles of Association of the Companies. It has been categorically stated in

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the said affidavit that for facilitation of mobilising funds and providing A sufficient funds to complete irrigation projects the constitution of KBJNL has been constituted with the sole idea to complete the works of Upper Krishna Projects by 2000AD. This company is a Government Company which has been established with an approval of the Cabinet in the State of Kamataka by its decision dated 6th May, 1994 and the Chief Minister of the State of B Kamataka is the Chairman of the Company whereas Deputy Chief Minister is the Vice- Chairman of the Board of Directors. All the Subscribers to the Memorandum are Government Officials and it has been declared to be a Government Company. The Memorandum of Articles of Association have been exhibited as Exhibited PAP 210. The affidavit has given the details as to how the State Government retains full control over KBJNL and on going through the said affidavit we have no hesitation to come to the conclusion that the apprehension.of the plaintiff State is wholly mis-conceived and devoid of any substance.

In view of our conclusions drawn on different issues, it is not possible for the Court to grant the relief of permanent mandatory injunction, so far as constrnction of the Dam at Almatti is concerned as well as the reliefs sought for in paragraphs (b) to (k). But at the same time, we make it clear that there is no bar for raising the height of the Dam at Almatti upto 519.6 meters subject to getting clearance from the Appropriate Authority of the Central Govern- ment and any other Statutory Authority, required under law. The question of raising the height upto 524.256 meters at Almatti could be appropriately gone into by a Tribunal, to be appointed by the Central Government, on being approached by any of the three riparian States and such T1ibunal could also go into the question of apprehension of submergence within the territory of the State of Maharashtra and give its decision thereon, in the event the height of the Dam at Almatti is allowed to be raised upto 524.256 meters. The Tribunal would also be entitled to go into the question of reallocation of the water in river Krishna basin, if new datas are produced by the States on the basis of improved method of gazing.

The suit is disposed of accordingly. There will be no order as to costs. G

S.B. MAJMUDAR, J I had the privilege of going through the draft judgment prepared by brother G.B. Pattanaik, J. in the aforesaid suit, I respectfully agree with the same. However, looking to the importance to two pivotal issues, being issue Nos. 2 and 9(a), (b) & (c), I have thought it fit to H

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A supplement the reasoning in the aforesaid judgment by my concurring observations on these issues as under :

Issue N. 2:

Has this Hon'ble court jurisdiction to entertain and try this Suit? B (MAH). Article 131 provides as under :

"131. Original jurisdiction of the Supreme Court - Subject to the provision of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute - c (a) xxx xxx xxx

(b) xxx xxx xxx "" (c) between two or more States. D If and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

xxx xxx xxx E We are not concerned with the Proviso which deals with treaties and agreements entered into or executed before the commencement of the Consti- tution. As Article 131 itself is subject to the other provisions of the Consti- tution, we have to turn to Article 262 which deals with disputes relating to waters. Sub-article (1) thereof provides that : F "262. Adjudication of disputes relating to waters of inter-State rivers or river valleys. - (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use distribution or control of the waters of, or in, any inter-State river or river valley." G Sub-article (2) thereof lays down that :

"(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint H an is referred to in clause (l)."

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It is not in dispute between the parties that the Inter-State Water Disputes Act, A 1956 (hereinafter referred to as 'the Disputes Act') is a legislation passed under Article 262 of the Constitution. It is equally not in dispute that Section 11 thereof excludes the jurisdiction of this Court is respect of water disputes referred to the Tribunal. It will, therefore, have to be seen whether the State of Andhra Pradesh, as plaintiff, having invoked the jurisdiction of this Court B Article 131 has, in substance, raised 'water dispute' which will exclude the jurisdiction of this Court as per Section 11 of the Disputes Act read with Article 262 sub-article, (2). In other words, if in substance, the rilaintiff want adjudication of any 'water dispute' between it and the other contesting States, namely, the State of Karnataka or the State of Maharashtra which are upper riparian States located in the Krishna basin through which the river Krishna, c which is admittedly an inter-State river, flows. The expression 'water dispute' has been defined by the Disputes Act as per Section 2(c) as under :

" "water dispute" means any dispute or difference between two or more State Governments with respect to - D (i) the use, distribution or control of the waters of, or in, any inter- State iiver or river valley; or

(ii) the interpretation of the tenns of any agreement relating to the use, disttibution or control of such waters or the implementation E of such agreement; or

(iii) the levy of the any water-rate in contravention of the prohibition contained in Section 7."

Keeping in view the aforesaid salient features of the Constitutional scheme and F A- the relevant provisions of the Disputes Act, we may tum to the plaint of the State of Andhra Pradesh in the Present suit. While deciding the question of jurisdiction of this Court, the averments in the plaint on demurrer will have to be kept in view. Paragraph 4 of the plaint recites that :

"After the Krishna Water Dispute Tribunal rendered its decision, first G on 24.12.1973 and a further decision on 27.5.1976, the plaintiff understood that all the riparian States, being constitutional units of the Federation of the Republic of India, would not only accept the said decisions but would give full effect to the same in letter and in spirit as is expected of constitutional Governments established by and under H

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A the Constitution of India. The Plaintiff had expected all the party States to consult each other for the projects that they may undertake on the inter-State river Krishna so as to make it apparent to the other States that the projects are in consonance with the decisions of the Tribunal and that their implementation would not, in any manner, affect the rights of the other riparian States. However, in the recent B past, to the utter surprise of the Plaintiff, it has come to light that Kamataka, far from acting in accordance with the letter and the spirit of the decisions of the KWDT, has grossly violated the terms of inter- State river Krishna. Kamataka has not only suppressed from the plaintiff information regarding execution of a number of projects c unauthorisedly undertaken by it, but also suppressed crucial informa- tions even from Defendant No. 2 Union of India while seeking its approval to these projects. It is rather unfortunate that Defendant No. 1 also misled the Central Government and its agencies while·seeking financial and other approvals of its projects. The Plaintiff, with a view D to amicably settle the matters, between the party States, appealed, not only to the Defendant No. 1 to desist from such illegal execution of projects, but also to t11e Union Government to intervene in the matter and to ensure that Kamataka does not contravene the terms of the decisions of the KWDT and does not take undue advantage of it being placed as an upper riparian State with regard to the inter-State river E Krishna. However, all such persuasions and negotiations failed. The Plaintiff is thus constrained to approach this Hon'ble Court invoking the jurisdiction under Article 131 of the Constitution in public interest and in the interest of the inhabitants of the plaintiff-State seeking immediate reliefs of protection of their interests by this Hon'ble Court." / F After mentioning the history of the earlier water dispute between·the riparian .....__ States which were adjudicated upon by the Krishna Waters Disputes Tribunal (hereinafter referred to as 'the KWDT') constituted under Section 4 of the Disputes Act by tlre Central Government and also after reciting the substance of the decision rendered by the said Tribunal, the grievances voiced in that suit in the light of the post-award developments are high-lighted in paragraphs 65 to 68 of the plaint under the caption 'Violation of KWDT decision by Kamataka - defendant No. 1, in the suit' and it is in the light of these grievances that prayers and reliefs have been put forward after paragraph 75 of the plaint. The main prayers on the basis of which relief is sought for are prayers (a), (c), (d) and (t) which read as under :

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"(a) declare that the report/decision dated 24.12.1973 and the further A report/decision dated 27 .5 .1976 of the Krishna Water Disputes Tribu- nal (KWDT) in their entirety are binding upon the three reparian States of Maharashtra, Kamataka and Andhra Pradesh and also the Union of India.

(b) xxx xxx xxx B

(c) declare that the party States are entitled to utilise not more than the quantity of water which is allocated or permitted by the decisions of the KWDT for the 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 confirmity with and conflict with or violate the decisions of the KWDT, as illegal and unauthorised.

(e) xxx xxx xxx

(f) declare that the States of Karnataka and Maharashtra shall not be entitled to claim any rights preferential or otherwise in respect of storage, 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. F xxx xxx xxx".

The aforesaid averments in the suit high-lighting the grievances of the plaintiff-State of Andhra Pradesh when read in the light. of the prayers put forward for consideration and the reliefs claimed thereby leave no room for doubt that the entire suit is based on the ground that defendant No. 1-State of G Karnataka has violated the binding decision of the Tribunal which pertains to Scheme "A" which was duly notified under Section 6 of the Disputes Act by the Central Government. It is this plaint which is sought to be resisted by the first defendant-State of Kamataka by filing its written statement. In the light to these pleadings of main contesting States, issues are framed in the suit. The H

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A relevant issues high-lighting the grievances of the plaintiff State are issue Nos. l, 3, 5, 9(a), (b) & (c), 10 and 20, which read as under : -4.

"l. Whether the State of Karnataka has violated the binding deci- sions dated 24.12.1973 and 27.5.1976 rendered by the KWDT by executing the projects mentioned in para 66, 68 & 69 of the B Plaint? (A.P./KAR).

3. Does the Plaintiff prove that the allocation of Krishna Water11 by the KWDT in its Final Order are specific for projects and not enbloc as contended by the Defendant? (MAH).

c 5. Whether the Plaintiff is entitled to a declaration that all the projects executed and/or which are in the 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? (AP.). D

9. (a) Whether the construction of the Almatti dam with a FRL of 524.256 m. together with all other projects executed, in progress and contemplated by Kamataka would enable it to utilise more water than allocated by the Tribunal? (A.P.).

E (b) Whether Kamataka could be permitted to proceed with construction of such a dam without the consent of other riparian States, and without t11e approval of the Central Government? (A.P.).

(c) Whether Karnataka can be permitted to raise the storage F level at Almatti dam above RL 509 .16 m. in view of the likely submergence of territories in Maharashtra. _......._

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

20Copy pinpoint20. 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 have been imposed in the final decision of the Tribunai? (A.P.)." H

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Keeping in view the aforesaid salient features of the plaint of the State of A Andhra Pradesh, the nature of controversies raised therein, reliefs claimed and the issues which fall for consideration of the Court, it is difficult to agree with the contentions of contesting defendants, especially, State of Maharashtra that the plaintiffs case does not fall within the fore-comers of Article 131 of the Constitution. It is obvious that the disputes raised by the plaintiff- State of B Andhra Pradesh pertain to the alleged non-implementation of the binding award of the KWDT by defendant No. 1 State. It has nothing to do with raising of a fresh water dispute. According to the plaintiff State, whatever was the earlier water dispute between the plaintiff and the defendant No. 1 State or for that matter defendant No. 3 S.tate, was already adjudicated upon by the Tribunal constitution under Section 4 of the Disputes Act and which decision c was duly published under Section 6 thereof being the decision pertaining to Scheme "A". The grievance of the plaintiff-State is that though the decision is binding on the upper riparian States namely, d~fendant Nos. 1 and 3, the executive action of the concerned States amount to flouting and violation of the binding decisions of the Tribunal. This clearly raises a question of D execution and implementation of an already adjudicated water dispute. Once that conclusion is reached, it becomes obvious that Article 262 would be out of picture and only Article 131 will remain operative for being invoked by the disputant State against the defendant States as it would certainly raise a dispute regarding execution and implementation of binding award of the Tribunal and, therefore, a contest does arise between two or more States on this score. E Accordingly, Issue No. 2 will have to be answered in favour of the plaintiff and against the defendants.

Issue Nos. 9(a), (b) & (c) : F So far as these issues are concerned, it has to be kept in view that the main contention of the plaintiff State of Andhra Pradesh is that in the binding award of the KWDT pertaining to Scheme "A", the Tribunal has gone into the question of project-wise allocation of quantity of water available for each of the projects of the contesting States located in the Krishna river basin in so far as they are within the territorial limits of each of the contesting riparian G States. However, when we turn to the award of the Tribunal (Exh.PK-1) and as the further award of the Tribunal under Section 5(3) of the Disputes Act (Exh.PK-11) which ultimately got gazetted at pages 102 and 114 of the Exhibit PK-II, we find that, nowhere it is held by Tribunal that out of the total quantity of water, namely, 2096 TMC per water year on the basis of 75% dependability H

410 . SUPREME COURT REPORTS [2000] 3 S.C.R. A any fixed quota of water for utilising, was earmarked for Upper Krishna Project (hereinafter referred to as 'UKP') which consisted of three dams namely, Hippargi weir, Almatti Dam and Narayanpur Dam. Clause III of the final order of the Tribunal as gazetted under Section 6 of the Disputes Act clearly provides that "the Tribunal hereby determines that, for the purpose of B · this case, the 75 per cent dependable flow of the river Krishna up to Vijayawada is 2,060 T.M.C." and this entire quantity is available to the States of Maharashtra, Karnataka and Andhra Pradesh. Out of the total quantity thus found available for distribution, .the State of Maharashtra as per clause V is enjoined not to use in any water year more than 560 TMC up to the water year 1982-83 and further additional quantities in future as laid .down therein. C Similarly, the State of Karnataka is enjoined not to use in any water year more than 700 TMC to start with, up to the water year 1982-83 and further pefmitted quantities thereafter as laid down therein. While plaintiff-State of Andhra Pradesh is given approval 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 of more than 800 TMC up to water year 1982-83 and the additional percentage as provided for subsequent water years. When this final order is read with the Report of the Tribunal comprised of volumes 1 and 2, Exh.PK-I and Exh.PK-11, it is difficult to hold as contended by the plaintiff-State that the Tribunal° has awarded fixed quantity of water to be utilised for each of the projects, especially the UKP. This conclusion gets high-lighted, when we turn to clause IX of the final order of the Tribunal pertaining to Scheme "A" wherein out of the water allocated to each of the States certain projects are mentioned for which given quantity of water is allocated. Now in the entire list of projects wherein allotment of water is made project-wise as mentioned in clause IX, UKP is conspicuously absent. It must, therefore, be held that even though the allocation of dependable flow of water per each water year is made for the State of Karnataka with a ceiling as found in clause V of the decision as aforesaid and even while the Tribunal in this connection as referred ~o UKP the ultimate allotment of total quantity of water has not resulted in indicating any earmarked quantity of water to be stored and utilised in UKP situated in the krishna river basin within the territorial limits of defendant No. 1 State. It is, therefore, difficult to accept the contention of learned senior counsel for the plaintiff-State of Andhra Pradesh that any project-wise allocation of available water is decided upon by the Tribunal while framing Scheme "A", so far as UKP is concerned. Once H that conclusion is reached, it becomes obvious that at what height the Almatti

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [MAJMUDAR, J.) 411 dam should be constructed, was not on the anvil of scrutiny of the Tribunal A nor was any decision rendered by the Tribunal in that connection which could be made subject matter of the challenge in the present suit of the State of Andhra Pradesh on the ground that any such express direction of the Tribunal ' in this connection is violated by defendant No. 1 State.

B Even if this conclusion is reached a moot question survives whether the _..., construction of the Almatti Dam with FRL of 524.256 would ultimately result in utilisation of more water by defendant No. l State than what is allotted by the Tribunal. This grievance, which is made subject matter of issue No. 9(a) at the instance of the plaintiff-State of Andhra Pradesh, has a clear nexus with the grievance of the said State about the violation of the decision of the c Tribunal. Thus, even if it is held that the decision of the Tribunal regarding Scheme "A" has not expressly mentioned any permissible height to which the Almatti dam could be constructed with appropriate storage capacity of water if it is held on evidence that the height of 524.256 FRL would result in utilisation of more water per water year than as allowed, as per clause V of the decision of the Tribunal, then the question of violation of injunction of clause V by defendant No. 1 State would clearly fall for consideration. It is in that light that we have to consider the grievance of the plaintiff-State.

For deciding this question we may usefully refer to UKP Stage-II Multi Purpose Project - detailed Report submitted by defendant No. 1 State before the Tribunal (Exh.PAP-46). In the said Report, we find at serial No. 2 salient features of the project. It is no doubt mentioned as UKP Stage-II Multi Purpose Project, Irrigation and power. At paragraph 2.3.l we fmd mentioned irrigation for Stage-II schemes and culturable command area is shown to be 1,97,120 hectares. While dealing with power at 2.3.2, we fmd total annual energy to be generated as 672 million units. Chapter IV of the said report PAP- 46 deals with Hydrology covering water budget Gate height at Almatti dam and Flood routing studies for PMF for Back Water Effect. In para 4.4.3 it has been mentioned that according to the studies made by IISc., the minimum FRL required at Almatti reservoir to utilise 173 TMC of water to meet the mandatory release for RTPS, domestic and industrial and irrigation require- G ments is EL 519.60 m. Considering the prospects of power generation at -~ Almatti dam, which is crucial for the State, the Government of Karnataka has decision to maintain water level at FRL at EL 524.256 m. during monsoon months to utilise the storage above EL 519 .60 m. for power generation only. It is not in dispute between the parties that according to the defendant No. 1 H

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A State, it seeks to store 173 TMC of water at Almatti dam for the pmpose of irrigation. If that is so the said water can irrigate cultural command area as per paragraph 2.3.1 mentioned earlier and can also generate electlicity of 672 million units, as seen from paragraph 2.3.2. mentioned earlier. We my refer , to an affidavit of Prof. D.K. Subramanian on the impact of increasing the FRL of the Almatti dam in Kamataka on power in the State of Andhra Pradesh at B page 109 on compilation II filed by plaintiff-State of Andhra Pradesh and which affidavit has been relied upon by defendant No. 1 State itself in support of its case. The said affidavit makes an interesting reading. At page 110 of compilation II at para 38, the following relevant averments have been made

c .. 6y the dependent in support of defendant No. 1 State case :

"If the FRL of Almatti dam is restricted to 519.60 m., then the power generation will be only 250 MW leading to an energy generation of about 672 million kilowatt hours. If the FRL is increased to 524.256 m. then it is both possible and feasible to set up the four cascade power plants downstream of Narayanpur also in addition to increasing D the capacity of Almatti power plant."

Once these averments in support of defendant No. 1's case are read in the light of PAP - 46 referred to earlier, it becomes clear that for generating electricity of 672 million units, the height of the dam could very well be at E 519.60 m. That would serve the pmpose of the defendant No. 1 State both.for irrigating the command area of 1.97.120 hectares as well for generating aforesaid units of electricity and would very well result in treating the Almatti project as multi-pmpose project.

F We may also usefully refer in this connection to an affidavit of Prof. Ram Prasad on behalf of State of Kamataka-defendant No. 1 herein. It has been furnished by defendant No. 1 State in support of its case. The said affidavit is at page 103 of compilation II file of the State of Andhra Pradesh. Paragraph 4 of the said affidavit also makes an interesting reading. The same reads as under : G "The Upper Krishna pr~ject (UKP) consists of two reservoirs, one at Almatti and the other at Narayanpur, to utilise 173 TMC of water for irrigation (including evaporation from the reservoirs). At the instance of the Government of Karnataka, Indian Institute of Science (IISc) carried out a study in 1996 (mentioned in para 12) in which I H

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