STATE OF ANDHRAPRADESH v. STATE OF KARNATAKAAND ORS.

participated as one of the two technicaJ consultants, which concluded A that the full reservoir level (FRL) of the dam at Almatti to utilise 173 TMC. After aJlowing for a 50-years sedimentation of the reservoirs would be R.L. 519.6 m. The Government of Karnataka has planned to raise the FRL of the dam to RL 524.256 m. in order to generate power in the near future with the additionaJ storage available from RL B 519.6 m. to RL 524.256 m. limiting the totaJ utilisation under the Project to 173 TMC. The IISc developed a "rule curve" for the operation of UKP reservoirs with Almatti FRL at 524.256 m. so as to maximise the power generation, at the same time limiting the utilisation to 173 TMC. The increase in the FRL and operation of the reservoir as per rule curve, changes the pattern of tlow downstream, C i.e., tlow into Andhra Pradesh (A.P.) which utilise these waters for irrigation as well as power generation at its projects at JuraJa, Srisailam, Nagarjunasagar and Prakasam Barrage. Mainly, this change takes the form of a reduction in the tlow to Andhra Pradesh in the month of August due to increased impoundment at Almatti, and increase in the tlows during subsequent months due to release of the impounded water. This change improves the irrigation performance in Andhra Pradesh, as will be clear later from the reservoir working tables."

We may also refer to another affidavit of Shri M. Krishnappa "on the size of the dam at Almatti and the canaJs under UKP' relied upon by defendant No. 1 State of Kamataka. The said affidavit is at page 106 of the aforesaid compilation II deaJing with Almatti Dam. The deponent has stated under :

"Almatti dam i.> the main storage under the UKP. The FRL of the F Almatti dam is fixed at RL 1720 ft. (524.256 m.). This was done during the initiaJ days of planning, that is, even before the constitution of the KWDT. For the utilisation of 173 tmc of water for irrigation, domestic uses and power generation, a storage of 123.25 tmc at Almatti Reservoir, with a FRL of 519.60 m. is necessary. However, FRL of 524.256 m. with a gross storage of 227. l 0 tmc is required for G an ultimate utilisation of 302 tmc, for irrigation, domestic pwposes and power generation. The size of the dam, as per engineering practices, has relevance to the ultimate utilisation of 302 tmc. under the UKP. In this regard, I have studied the relevant technical records made available by the Irrigation Department and the project officiaJs." H

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A These affidavits of experts, relied upon by defendant No. 1 State itself show that for utilising 173 TMC of water for irrigation and domestic use and power generation FRL 519.60 will be sufficient. It may be kept in view in this connection that under the award of the Tribunal an assessment of water requirement for UKP by the State of Karnataka was made by the Tribunal in the general terms as 155 TMC of water at Almatti dam and 5 more TMC was B added to UKP because of calculation error so far as Hippargi weir project was concerned. They total up to 160 TMC and even that apart, according to Defendant No. 1 State, it would require storage capacity at Almatti dam for TMC of water for irrigation, domestic use and power generation. We may also keep in view the Tribunal's decision, as seen from PK I and II, that Almatti c dam was meant for being treated as a storage carry over reservoir for ultimately releasing water for irrigation to the down stream Narayanpur project. The height of the Almatti reservoir at FRL 519.60 is also found sufficient for the present purpose by the experts whose affidavits have been relied upon by defendant No. 1 State itself, as seen earlier. D In this connection we may also refer to the pertinent averments made in the plaint based on the extract of correspondents exchanged between the parties and the Central Water Commission. In para 28 of the plaint a communication dated 1.4.1986 by the Central Water Commission, Government of India, by its letter dated 23rd October, 1986 addressed to the E plaintiff State is referred to. The said communication, amongst others, stated as under:

"(1) the KWDT has allowed utilisation unaer the UKP of a total of 160 TMC utilisation allowed under Stage I of the project plus 52 F TMC utilisation under Stage II, and 5 TMC utilisation under Hippargi Project).

(2) the UKP Stage-I approved by Planning Commission in April 1978, contemplated utilisation of 119 TMC including the reservoir losses. G (3) ill l'.._eb~ary 1982 CWC received from the Government of Kamataka a project report on UKP Stage II for irrigating an additional area of 2.00 lakh hectare with an installed capacity f?r power generation of 218 MWs. As per the project report, the total utilisation contemplated under UKP stages I & II was said to be 173 TMC. (119 H

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TMC Stage I + 31 TMC for Stage II + diversion of Godavari Waters A from Polavaram 21 TMC, + regeneration from use of 21 TMC of Godavari waters, 2 TMC).

(4) Central Water Commission has received a separate report on -I Hippargi project which envisages utilisatiott of 10 TMC of Krishna B water which was yet to be approved by the Planning Commission, thus the total utilisation contemplated was 183 TMC (i.e. 160 'fMC of Krishna water + ~l TMC of Godavari water + :2 TMC of regeneration) and not ioo TMC, as report in a newspaper.

xxx xxx xxx" c

- At paragraph 34 of the plaint a D.O. letter dated 25.4.94 addressed to the Chief Minister of Andhra Pradesh by the then Union Minister for Water Resources is referred to. In this connection the following relevant avennents in that communication are extracted : D

"It was only thereafter that in his D.O. letter No. 6.l.91-p.1-1660, dated 25.4.1994 addressed to the Chief Minister of Andhra Pradesh, the then Union Minister for Water Resources proposed to convene a meeting of the Chief Ministers of the Krishna Basin States on Upper E Krishna Project Stage-II along with other inter-State projects. In the background note on the projects which was forwarded alongwith the said letter it was stated that the Central Water Commission had observed that the project as envisaged (UKP Stages I & II) creates a physical capability of water utilisation in excess of the envisaged utilisation of 173 TMC. It was observed that "this is possible in view F of the proposed top of the radial gate at FRL + 521 meters against the required level of 518.7 meters for utilisation for 173 TMC of water".

In para 40 of the plaint at page 60 of Vol. III is mentioned a letter of G 11th July, 1996 addressed by the then Minister for Water Resources, Govern- ment of India to the Chief Minister of the Plaintiff State regarding UKP Stage II. In the said letter it was disclosed that the Central Water Commission have opined that since no permanent flood pool is envisaged. gate top above FRL of 518. 70 M is not acceptable. Meaning thereby that the gate level can go at H

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A Almatti dam up to that height and any further height would not be acceptable to the Central Water Commission.

At para 48 of the plaint it has been averred that "at the request of Andhra Pradesh, the Steering Committee of the ruling United Front Govern- ment at the Centre constituted a Committee of four Chief Ministers to B examine the issues relating to the construction of Almatti Dam. The Committee of the Chief Ministers met on 12th August, 1996 when it was decided to constitute an Expert Committee, with a representative of the Central Water Commission and Planning Commission, who, however, did not ultimately participate in the proceedings." It has been further stated that the c Expert Committee, after going on spot as mentioned in para 51 of the plaint observed as under :

"As regards the storage capacity required for utilisation of 173 TMC ~ at UKP as claimed by the I st Defendant, the Committee has observed that even as per the Indian Institute of Sciences at Bangalore an FLR of+ 518.7 m. would be adequate for the purpose. The Committee however allowed probable losses in storage capacity due to siltation etc. and observed that the FRL on the top of the shutter be fixed for the present at+ 519.6 m. and the gates be manufactured and erected accordingly.· In the opinion of the Expert Committee, Almatti dam with FRL at+ 519.6 m. will provide a storage of about 123 TMC which, alongwith storage of 37.8 TMC at Narayanpur, will be quite adequate to take care of the annual requirements of 173 TMC presently envisaged under the Upper, Krishna Project. The Committee felt that first step to be taken to solve the present problem regarding F Almatti dam is to implement its suggestion and restrict the height of the dam at+ 519.6 m .... "

Now it is, of course, true that the plaintiff-State had not accepted the entitlement of first defendant to use 173 TMC under UKP and the height of tlle dam at FRL 519.6. The Expert Committee's opinion backed up by the aforesaid affidavits of the experts relied upon by defendant No. 1 State itself shows that the height of Almatti dam at FRL 519.6 would meet the basic requirement of defendant No 1 State leaving aside its demand for further storage of water if more water is available to it beyond the allotted water as per clause V of Scheme "A" which is the binding scheme between the parties

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and in the absence of Scheme "B" getting fructified: A

In the light of the aforesaid stand taken by defendant No. 1 State and its witnesses and also the opinion of the Expert Committee and the observa- tions of the Central Water Commission, it becomes absolutely clear that even according to defendant No. 1 State, the height of Ahnatti dam at FRL 519 B would meet its present requirements of storage of sufficient water at Almatti dam for irrigation and power generation purposes. It may be that its future need depending upon;tlie eontingency of Schetne "B" ultimately getting finalised may require larger storage oapacity calling for greater height at Almatti dam but at present as seen from the record, its need would be satisfied by restricting the height of Almatti dam at FRL 519. In fact, so c

- far as the aforesaid height is concerned, even the plaintiff-State, while cataloguing violations of KWDT decisions by the Kamataka State, has made the following pertinent averments in paras 66(ii) & 66(iii) at pages 74 to 76 of its plaint : D "66(ii). As per well accepted engineering practices, a live storage of maximum of 103 TMC is considered sufficient for utilisation of 155 TMC of water for irrigation. This is more apposite in view of the local conditions of the project area. Since the live storage capacity of the Narayanpur reservoir was only 23.77 TMC, the Tribunal allowed construction of the Almatti reservoir only as a carry over reservoir to supplement Narayanpur but did not permit any irrigation under Almatti. Kamataka, however, unilaterally altered the design of Almatti reservoir and converted the same into a multi-purpose project provid- ing for direct irrigation to an extent of 4.13 la.kb acres and for generation of 297 MW of hydel power, which involved additional utilisation of atieast 91 TMC of water beyond what was permitted and allocated to UKP by KWDT. As per the modified design, the height of the dam- at Almatti has been sought to be increased from 518.7 m. to 524.256 m. so as to have an increased storage of I 16 TMC beyond the permissible storage for irrigation permitted by KWDT at G Narayanpur.

(iii) The Almatti Project in addition to being a carry over reservoir now envisages utilising an additional 91 TMC of water beyond KWDT allocation to fulfil the following further objectives : H

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A S. No. Details & Utilisation Area Water (in lakh acres) Requirement (in TMC)

B (a) Canal irrigation under Left 0.90 11 and Right Bank Canals at Almatti ---;..- (b) Irrigation under foreshore 3.23 39 lift scheme (Mulwad)

(c) Additional requirement for 19 c sugar cane and other second

(d) season crops under lift schemes

Incremental evaporation loss 22 ...,,_ ... due to additional storage for D power generation (100 TMC)

Total 4.13 Lakh 91 TMC Acres

E If Karnataka is permitted to utilise an additional quantum of 91 TMC of water for irrigation and other purposes at Almatti, the dependable flow in the river downstream of Almatti and Narayanpur would be severaly reduced adversely affecting the interest of the lower riparian - plaintiff State. F ..... _ Moreover, the said additional utilisation of 91 TMC for irrigation purposes at Almatti by Karnataka would drastically affect the ecologi- cal balance, degrade the environment, increase the pollution in the river water and render large extents of irrigated areas in the plaintiff- State dry. It would also alter the flow pattern which in tum is bound G to jeopardise the riparian interests of the agriculturists who have prescriptive rights, a right of customary use of river water within the plaintiff-State. Such utilisation would also adversely affect the power ,. production systems within the Plaintiff-State."

H These averments thus clearly indicate that the real grievance of the .

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plaintiff-State is pertaining to the height of Almatti Dam beyond 518. 7 m. and going up to 524.256 m. In other words, there is no real grievance of the plaintiff-State regarding maintenance of height of Almatti Dam at least up to 518.7 m. or 519 m. Beyond that it would be a real bone of contention by the plaintiff-State. The aforesaid grievance of the plaintiff-State is further high- lighted, when we turn to para 68 of the plaint at page 82. Therein the plaintiff states that the 1st Defendant Karnataka has grossly violated the decisions of the KWDT. In the said para pertaining to Almatti Dam, at item 2, it was mentioned as under :

"SI. Name of the Project Area permitted Planned No. Area c (lakh acres) (lakh acres) .2. Almatti Nill 4.13"

On a conjoint reading of the aforesaid averments in paras 66(ii) and (iii) and para 68(a)(2), it becomes at once clear that the real grievance of the plaintiff- D State is of storage and utilisation of additional 11 TMC water at Almatti Dam by raising ·the height up to 524.256 m. which would result in the irrigation of planned area of 4.13 lakh acres. Under these circumstances, therefore, in our view as at present advised if the height of Almatti Dam is fixed at FRL 519 · m. it would meet the requirements not only of the plaintiff-State but also meet the present requirement of defendant No. 1 State and also would not fall foul E on the opinion of the Expert Committee as well as on the clearance given by the Central Water Commission to Stage II of the UKP Project, as seen earlier.

In this connection, it is also interesting to note what defendant No. 1 State of Karnataka has to say in connection with its report regarding UKP F Stage II. II). compilation II of the relevant document filed by the State of Andhra Pradesh, we find a copy of that report at page 98 in connection with the minimum Almatti FRL required. The report reads as under :

"The minimum Almatti FRL required to get 173 TMC utilisation is found to be 518.7 m. The reservoir operation tables for Almatti G reservoir for the years 1950-51 to 1988-89 with FRL 518.7 m. and the corresponding operation tables for Narayanpur Reservoir for the same period are enclosed after the end of Table 6. It is seen that there are only 7 failure years in a period of 39 years, which are less than 25% of the total number of year2 of operation." H

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A In must, therefore, be held while answering issue No. 9(a) that there is really no dispute between the plaintiff-State and defendant No. 1 State that construc- tion of Almatti Dam with at least an FRL 519.6 m. will meet the requirement of defendant No. 1 State on the one hand and also the grievance of the plaintiff-State on the other hand. In other words, construction of Almatti Dam with an FRL of 524.256 may not be feasible or permissible at this stage B looking to the allocation of gross quantity of water to Karnataka State as per Scheme "A" on the basis of 75% dependable availability of water per each water year as decided upon by the Tribunal. Any iii.crease of the height beyond FRL 519 m. may depend upon further allotment of water to Karnataka State by any subsequent - decision of the Tribunal, as and when constituted, as that c would depend upon the implementation of proposed Scheme "B" which up till now has not been elevated to the status of a binding deciding of any Water Disputes Tribunal.

When we turn to issue No. 9 (b), we find that it assumes that construction of a dam within the territory of Karnataka requires consent of D other riparian States. This assumption by itself cannot be sustained for the simple reason that every riparian State within its own territory can construct a dam as required by it. The grievance of other riparian States would arise only if such construction is likely to affect ·the available water flow of inter-state river as available to it by any adjudication of the Tribunal or if it raises a E dispute in this connection to be adjudicated upon by any future Tribunal. The absolute assumption in the issue that State of Kamataka cannot be permitted to proceed with construction of dam without consent of other riparian States,

F therefore, cannot be accepted and will have to be considered subject to the aforesaid rider.

So far as the second assumption is concerned, the approval of the - Central Government will be required under the federal setup as and when any project is to be constructed in Kamataka State. It has to get clearance from appropriate statutory and executive authorities. It cannot therefore, be assumed that State of Kamataka would proceed with the construction of such dam G without approval of the Central Government. In fact the evidence on record has shown that it has already approached the Central Government for necessary approval. Issue No. 9(b) is answered accordingly.

Issue No. 9(c) :

H The aforesaid conclusion of ours would answer issue No 9(a) between

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the plaintiff-State and the Defendant No I State being the main contesting A States. However, before this conclusion is reached inter parties, Plaintiff and the Defendant No. I as afore-stated, the grievance of defendant No. 3 State of Kamataka also has to be kept in view in connection with permissible height of Almatti Dam. Learned seJ;lior coWlsel Shri Andhyarujina for the State of Maharashtra-defendant No. 3 herein, vehemently contended that if the height B of Almatti Dam to be constructed by the State of Karnataka is allowed to go beyond 519 m. FRL which is cleared by the Central Water Commission there is a likelihood of submergence of number of villages of Maharashtra State by way of t>ack effect of water ccllected at that dam. He frankly stated that this contention was not raised before the TribWlal as the TribWlal had not considered the question of clearance of any height of Almatti Dam. But after c the filing of the present suit, on further enquiry and material gathered by it, it is seen that there is a possibility of such submergence. Now so far as this

- grievance is concerned, in the compilation MAH-2 furnished by the State of Maharashtra, the following relevant averments have been made at paras 1.8 and 1. 9 as Wlder : D "I. 8. As the raising of the height of the Almatti which is the subject of controversy in Suit No. 2 of 1997 was kept in abeyance, the State of Maharashtra did not desire to precipitate a sensitive issue having larger consequences. E 1.9. In July 1998, the Government of Maharashtra took up the question of likely submergence of the ten"itory of Maharashtra with the State of Kamataka and the Union Water Resources Ministry and concerned Union Government Agencies. By that time, the State of Maharashtra was able to carry out in its preliminary survey which showed that with Almatti FRL/MWL RL 524.256 m. there would be submergence of Maharashtra's territory to an extent of 5 to 6 meters depth ( 16 to 20 feet depth). This submergence would further increase during the floods. 111erefore, State of Maharashtra requested Karnataka by its letter dated 27.7.1998, for an immediate stoppage of all further construction at Almatti dam and specially the installation of gates and any storage against the gates to ensure that no territory of Maharashtra was submerged. It also asked for a written guarantee from Karnataka State that it would not install radial gates at Almatti and/or store water unless the matters of submergence of and likely damages to the structures in the territory of Maharashtra, were discussed and settled H

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A with the Maharashtra State to its entire satisfaction. The State of Kamataka was also info1med that in the event of non receipt of written assurance, the State of Maharashtra would be compelled to approach the Honorable Supreme Court and seek judicial intervention for a total stoppage of all construction work at the Almatti dam and prevent storage of water above crest level RL 509.00 m." B At para 1.13 at page 73 the stand of the State of Maharashtra is stated as disclosed from the correspondence exchanged between the parties :

"(a) The level of Krishna iiver near the Maharashtra Kamataka border is less than RL 519.00 m. compared to FRL RL of 524.256 m. at c Almatti and FRL RL 524.87 m. at Hippargi, with the result there will be submergence in Maharashtra to the extent of 5 to 6 meters.

(b) No actual field surveys have so far been undertaken by Kamataka to assess the magnitude and extent of submergence in Maharashtra. D Kamataka has now stated that such surveys would be done by Kamataka only from Ap1il 1999.

(c) None of the Central Government agencies have so far technically examined the submergence aspect in Maharashtra due to Almatti dam with FRL RL 524.256 m. E (d) For Almatti dam, with crest level RL 509.016 and FRL RI 524.256, none of the technical aspects such as Maximum design flood spillway adequacy, number and size of gets, siltation and its effects upstream in Maharashtra, flood routing, reservoir operation schedules etc., have so far been examined or certified as correct and acceptable by the Central Water Commission. All these aspects materially affect and influence the extent of submergence in Maharashtra."

At page 1.14 at page 75 it has been averred as under :

"It is now learnt that the State of Kamataka now proposes to weld skin plates on the frame work of radial gates. This will now complete the erection of the gates and raise the height of the Almatti dam to FRL RL 524.256 m. Raising of the FRL RI to 524.256 m. of the dam will submerge territories in Maharashtra. The State of Kamataka has not been given any right to submerge any State's territories by the H Krishna Water Disputes Tribunal."

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When we turn to I.A. No. 8 of 1999 filed by the State of Maharashtra for grant · A of leave to file additional written statement, we find the following pertinent observations at page 6 at para 1.2. The same read as under :

"After it filed its Written Statement, a detailed study by Maharashtra " of the documents, records, project reports and answers to intereocutories B etc. filed in OS 1 and OS 2 of 1997 by the States of Karnataka and Andhra Pradesh revealed for the first time that the territory of the State of Maharashtra was likely to be submerged by the State of -Y Karnataka by constructing the Almatti dam with FRL RL 524.256 m. and Hippargi Barrage with FRL RL 524.87 m. and would result in displacement of population from several villages and a few towns in c Maharashtra. There was also likelihood of enormous damage to private and public properties and works and structures including archaeological structures and pilgrimage places as hereinafter stated in para 5 below. There would also be disruption of communications, enhanced distress and damages during floods each year due to D sedimentation and reduction of existing river channels' capacities, flattening of bed gradients, change in the already fragile river regime near the border of the two States and increased flood depths and duration and consequent distress every years."

~ E Similar submissions are found at page 34 of the additional written statement ' filed by the State of Maharashtra, Statement No. 1 captioned as list of villages from Maharashtra State likely to be effected by floods due to Almatti Dam (in Karnataka State) with FRL RL 524.256 m., has mentioned list of 58 villages covered by the Krishna river basin. F ......... The aforesaid grievance of the State of Maharashtra, which is defendant No. 3, against defendant No. 1 is really a dispute between the two defendants and does not project any dispute qua the plaintiff-State, but even proceeding on the basis that suit under Article 131 is a comprehensive one and seeks to resolve the simmering disputes between all the contesting States which are the G riparian States situated in inter-State river Krishna basin and not applying the strict yardstrick of a suit before an ordinary civil court, we have to appreciate "1- the real grievance voiced by the State of Maharashtra against the height of Almatti Dam. It centers around the height of 524.256 m. Any height beyond 519 m. and going to 524.256 m., according to the State of Maharashtra, i:; H

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A likely to submerge its viJlages though being a possibility and not a real certainty. So far as this grievance is concerned, therefore, it can be safely assumed that defendant No. 3' s grievance is really confined to a remote and un-ascertained possibility of submergence of its villages if the· height of Almatti Dam was more than 519 m. and reaches 524.256 m. Grievance about height of 524.256 m. is also voiced by the plaintiff-State of Andhra Pradesh, B though for different reasons. It can, therefore, safely be assumed that, as at present advised, the height of Almatti Dam if permitted up to 519 m. will not pose any real problem to the plaintiff-State on the one hand or to defendant No. 3 State on the other and will also serve the present need of Defendant No. 1 State regarding storage of sufficient water at Almatti Dam in the light of c binding decision of Scheme "A". In other words, the height of 519 m. appears to be not in serious dispute amongst all the three riparian States located in Krishna river basin and if this height is permitted to be maintained at Almatti Dam that would also not go against the opinion of Central Water Commission on the one hand and the Expert Committee's opinion of the four Chief D Ministers on the other.

But leaving aside this aspect of the grievance of the State of Maharashtra, it may be mentioned that the dispute sought to be raised by defendant No. 3 State of Maharashtra is against defendant No. 1 State, namely, State of Karnataka regarding any increase in the height of Almatti Dam beyond 519 E m. or for that matter beyond 512 m. which, according to learned senior counsel Shri Andhyarujina for the State of Maharashtra, can be the permissible height and which would have Ii.o adverse effect of submergence in the Maharashtra •, territory, However, this dispute cannot be resolved in the present proceedings ' for the simple reason that it would assume the character of a 'water dispute' F as we will presently see. 'Water dispute' as contemplated by Article 262 has been defined by Section 2(c) of the Disputes Act, as extracted earlier. It means _.,4_ any dispute or difference between two or more State Governments regarding use, distribution or control of waters of, or in, any inter-State ·river or river valley. Raising of the height of Almatti Dam beyond the level of 512 m. would entitle the State of Kamataka to control waters of river Krishna which is an inter-State river and if this type of control of the Krishna water by defendant No. 1 State is likely to submerge villages of Maharashtra State, which is an upper riparian State, by back-effect, it would clearly fall within the definition of 'water dispute' as found in Section 2(c)(i). That would immediately attract Section 3(a) which deals with complaints by State Governments as to water disputes. It provides that :

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... "3. Complaints by State Government as to water disputes. - If it A appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by - B (a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or

xxxx xxxx xxxx" c It becomes clear that the Maharashtra State, namely, defendant No. 3, apprehends that because of the executive action of Defendant No. 1 State contemplating raising of height of Almatti Dam at 524.256 M., the defendant No. 3 State or its inhabitants are likely to be prejudiced by submergence of its villages and the lands occupied by residents therein. Thus on a conjoint reading of Section 2(c)(i) and Section 3(a) of the Disputes Act such a grievance voiced by defendant No. 3 State against defendant No. 1 would consequently fall within the fore-corners of the Disputes Act enacted by the Legislature under Article 262. Once that conclusion is reached the result becomes obvious. This type of grievance and dispute cannot be adjudicated upon by us under Article 131 and it is for the Maharashtra State if so advised to raise such a dispute which earlier it did not raise, by filing an appropriate compliant under Section 3 of the Disputes Act before the Central Government and once that happens Section 4 of the Act would be automatically attracted. It provides as under : p· "4. Constitution of Tribunal - (1) When any request under Section 3 is received from any State Government in respect of any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the Central Government shall, by notification in the Official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute. G

(2) (The Tribunal shall consist of a Chairman and two other members nomination in this behalf by the Chief Justice of India from among persons who at the time of such nomination are Judges of the Supreme Court or of a High Court) H

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A (3) The Tribunal may appoint two or more persons as assessors to .; advise it in the proceeding before it. 4'..

Thus the grievance· about submergence raised by Defendant No. 3, State squarely falls within the scope of 'water dispute' between defendant No. 3 State and defendant No. 1 State. For its resolution, adjudication by the " B Tribunal is the only way out. It is not in dispute between the parties that such a water dispute was never got adjudicated upon by KWDT. In other words, it remains an open dispute calling for its adjudication. It cannot be consider~d by us under Article 131. 1 In fact in the statement of case of the State of -,. Maharashtra defendant No. 3 herein before the Krishna Water Disputes c Tribunal, which is annexed as MRK-1, the State of Maharashtra itself has considered such a grievance as a part of 'water dispute'. In para (k) in the reliefs sought by the State of Maharashtra from the Water Tribunal it was submitted as under :

"(k) that for the purpose of giving effect to the decision of this D Honourable Tribunal all directions may be given and orders passed which are usual and proper in a final determination of an inter-States' River Water Dispute including a direction that the water shall not be used in any project which will have the effect of submerging the territory of any other State except with the prior consent of, and prior agreement on the adequate compensation for the damage to the concerned State if it has consented to a part of its territory being submerged."

It is, of course, true that though the defendant No. 3 State considered the question of submergence as a part of 'water dispute' to be resolved by the Tribunal, the Tribunal did not consider the question of submergence of villages in the territory of defendant No. 3 State because of the height of Almatti Dam. It has, therefore, remained a simmering dispute between the defendant No. 3 --""- State and Defendant No. 1. It, therefore, requires to be adjudicated upon by a competent Tribunal as noted earlier. It is axiomatic that crucial question for determination under Section 3 of the Disputes Act is whether the interest of the State of Maharashtra or of any of its inhabitants in Krishna river valley will be prejudiced by the executive action of another riparian State, like the Defendant No. 1. The State is one integral unit and. its interest includes the well-being of its inhabitants within its territory including areas outside the river basin. Therefore, under·the Inter-State Water Disputes Act, 1956 the

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relevant consideration is the interest of the State as a whole and all its inhabitants and not merely the interest of the basin areas of the State. Consequently, it must be held that the dispute regarding the apprehended submergence of villages of Maharashtra State by raising of the height of Almatti Dam by State of Karnataka beyond 519 m. is an unresolved water dispute which cannot be considered by us under Article 131 and we have to relegate respondent No. 3 State to filing of an appropriate complaint under Section 3 of the Disputes Act before the Central Government, if so advised. if in the mean time no amicable agreement or settlement of the dispute inter- se between defendant No. 3 State and defendant No. 1 State is arrived at.

Now, let us take stock of the situation. As we have seen earlier, there c is no real dispute amongst the three States up to the height of 519 m. of Almatti Dam. We can, therefore, while answering issue Nos. 9(a) and (b) safely hold that, as at present advised and as the evidence stands on record construction of Almatti Dam with an FRL 524.256 together with all other projects executed and in progress and contemplated by the Karnataka State cannot be granted nor can the Karnataka State be permitted to construct up to that height without the consent of all other riparian States as well as without the approval of the Central Government. However, this will be subject to the rider that there cannot be any objection to permitting the State of Kamataka defendant No. 1 to consuuct Almatti Dam up to a height of 519 m. for which, as already discussed, there is no real dispute amongst the parties. However, even this much indulgence granted to defendant No. 1 State will be subject to the following safeguards and riders :

Even while defendant No. 1 State proposes to construct the Almatti Dam up to FRL 519 m. it will be subject to clearance by all other competent authorities functioning under different Statutes. Requisite clearance will be required by defendant No. 1 State of raising the height of the dam even up to ~19 m.

In particular, such clearance will have to be obtained under the Envi- ronment Protection Act, 1986 and from the Ministry of Forests & Environ- G ment, Govt. of India in this connection.

Appropriate clearance will also have to be obtained from the Central Water Commission for raising the height up to 519 m.

The aforesaid permission/clearance to raise the height of 519 m. by this H

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A order will also subject to any further directions if any, obtained by the disputant States concerned from any future Water Disputes Tribunal which may be constituted by the Central Government on the complaint raised by any of the disputant States, including the State of Maharashtra defendant No. 3 herein. The interim relief granted by this Court pending hearing of the present suit will stand modified to the effect that the State of Kamataka, subject to the B aforesaid clearance of the authorities, can raise the height of the Almatti Dam up to 519 m., as at present advised. ~-

The raising of further height of Almatti Dam beyond 519 m. will obviously abide by the decision, if any, obtained in future from appropriate c Water Dispute Tribunal constituted under the Disputes Act on complaints raised by any of the three disputant States before us and also after getting clearance from the Tribunal and all other competent authorities. The question of raising the height of Almatti Dam beyond 519 m. will also fall for consideration of the Tribunal after 31st May, 2000 when Scheme "A" will come up for review as already directed by the KWDT in its Report PK-I & D PK-II. It will also have to be considered in the light of proposed Scheme "B" which may fall for consideration of appropriate Water Disputes Tribunal in future if complaints in this connection are raised by any of the contesting States before the Central Government.

E Issue Nos. 9(a), (b) and (c) are answered as aforesaid.

Original Suit No. 2 of 1997 will stand disposed of as indicated above. In the facts and circumstances of the case there will be no order as to costs.

BANERJEE, J. I have had the privilege of going through the detailed F judgments prepared by Brother Pattanaik concerning these two Suits (OS No. 1 and OS No. 2) and I record my concurrence therewith. I have also the privilege of going through the judgment prepared by Brother Majmudar, in OS No. 2 concerning certain issues and I do also record my concurrence therewith but I wish to add a few pages as my reasoning in the matters in issue by way of one concurring judgment for both the Suits as below:- G The points of controversy in these two suits (OS No. 1 and OS No. ·2197) under Article 131 of the Constitution between the States of Kamataka, Andhra Pradesh and Maharashtra pertain to the use and sharing of Krishna river water. Whereas Kamataka has filed Original Suit No. 1of1997 H against the State of Andhra Pradesh as the first defendant and State of

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.)r Maharashtra as the second, the Original Suit No. 2 of 1997 has been instituted by the State of Andhra Pradesh against the States of Kamataka and Maharashtra. Union of India, however has been impleaded as a party defendant in both the Suits.

Before, however, proceeding with the controversies as raised, be it noted that peculiar is the distribution of water resources in the country which cannot _,...- but be ascribed to be highly uneven as regards time element. Over 80 to 90 per cent of the run off in Indian rivers occurs in four months of the year and there are regions of hannful abundance and acute scarcity. The country has to deal with several critical issues for quite some time in the matter of water resources of the country. The total water requirement of the country by the c year 2050 would be to the tune of973 to 1180 Kms. Irrigation is the key area for highest water requirement followed by _domestic use including drinking, power projects and other uses. The Report of the National Commission for Integrated Water Resources Development as prepared by the Ministry of Water Resources, Government of India: (September, 1999) records: D "The country's total water requirement in the year 2050 barely matches the estimated utilisable water resources. It is of paramount importance that we should aim at reducing water requirement to the low demand scenario. While there appears to be no need to take an alarmist view, three major considerations have to be kept in the E, forefront while formulating an integrated water policy. First, that the balance between the requirement and availability can be struck only if utmost efficiency is introduced in water use. Second, average availability at the national level does not imply that all basins are capable of meeting their full requirement from internal resources. F Third, the issue of equity in the access to water, between regions and between sections of population assumes greater importance in what is foreseen as a fragile balance between the aggregate availability and aggregate requirement of water."

The Report further records that though the National Water Policy of G 1987 was a good first step in the direction of evolving a national consensus ;.. 'f. but by reason of emergence of new issues, there is existing urgent necessity to revise the National Water Policy. Till such time that, however, this new revived policy can be given its true form and shape and thereupon implement the same in the actual physical ways and means, though unfortunate, the Inter- H

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A State River Disputes continue and the same have turned out to be more common than uncommon: this is, however, notrestrictivelto this country only but it has crossed the trans-national boundaries. The observations of the U.S. Supreme Court in the case of Kansas v. Colorado 51 Law Ed. U.S. (203-206) 967 seem to be rather apposite in the present context. Brewer, J. speaking for the Bench observed as below: B "This suit involves no question of boundary or of the limits of territorial jurisdiction. Other and incorporeal rights are claimed by the respective litigants. Controversies between the states are becoming frequent, and, in the rapidly changing conditions of life and business, c are likely to become still more so. Involving, as they do, the rights of political communities which in many respects are sovereign and independent, they present not infrequently questions of far-reaching import and of exceeding difficulty." ...,..

The framers of the Constitution, however, being alive to the situation did incorporate Article 262 providing for adjudication of disputes relating to waters of inter-State Rivers or River Valleys. Significantly, sub-Article 2 of Article 262 by its unequivocal language expressly provides for a total ouster of jurisdiction of courts including the Supreme Court by Parliamentary legislation as regards resolution of such disputes. The subsequent legislation as introduced into the Statute Book, namely, the Inter-State Water Disputes Act 1956 is such a legislation under Article 262 of the Constitution and Section 11 thereof excludes the jurisdiction of the courts including that of the Supreme Court in respect of a water dispute. The true effect of Section 11, however, will be dealt with shortly hereinafter but before so doing, be it noted that whereas Article 262 pertains to ouster of jurisdiction of the Supreme Court, -4_ ' Article 131 relates to conferment of jurisdiction on to the Supreme Court and it is in this context, the effect of Article 262 will also has to be appreciated vis-a-vis Article 131 of the Constitution.

Needless to record here that Indian Constitution being federal in form and character, there is existing division of powers between the Union and State Governments with clearly defined areas of authority between the States and the Union excepting, however, in certain exigencies as provided therein. The Three Lists under Seventh Schedule amply exhibit the wisdom of our Constitution framers in the matter of maintaining a dual polity. Tue independ- H ence of the judiciary is maintained so as to determine the issues between the

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Union and the States or between one State and another and it is in this A perspective, Article 131 of the Constitution provides for the original jurisdic- tion to the Supreme Court of India to the exclusion of any other court in regard to disputes between the Union and one or more States or between the Union and any State or States on one side and one or more States on the other or between two or more States. B Very learned and detailed submissions have been advanced vis--vis y Articles 262 and 131 of the Constitution, but before embarking on to a detailed discussion, it will be convenient to note the factual matrix of the matter in lSSUe.

The background facts: c On 10th April, 1969, the Government of India constituted the Krishna Water Dispute Tribunal and referred thereto the water dispute regarding the utilisation of the water of river Krishna, the disputants being the States of Mysore, Madhya Pradesh, Orissa, Andhra Pradesh and Maharashtra. Subse- D quently, however, Orissa and Madhya Pradesh were discharged from the records of the case and I do not think it expedient to record the detailed reason therefor save and except as noted hereinabove.

In their statements of cases, Maharashtra, Mysore and Andhra Pradesh asserted their claims to the utilisation of water of Krishna river for existing and future projects: whereas Maharashtra claimed 820.70TMC for gross utilisa- tion, Mysore claimed 1430.00 TMC and Andhra Pradesh claimed 1888.10 TMC as regards their gross utilisation. In addition to the above , Maharashtra claimed 32.5 TMC for regenerated flows and 70-80 TMC for industrial use and domestic water supply. Andhra Pradesh also like Maharashtra did claim further additional 120 TMC for domestic water supply and industrial use and Mysore State demanded 1430 TMC but did nt>t include its needs for water for domestic and industrial use. There is no point of dispute that the total available water in the Krishna river system cannot match with the demands as raised or claims asserted. G Incidentally, Krishna is the second largest river in India. It rises in the Mahadev range of Western ghats near Mahabaleshwar in Maharashtra and flows through Mysore and Andhra Pradesh obtaining further water accumu- lation support from various tributaries, rivulets and streams and finally joins the Bay of Bengal. In the run of 186 miles within Maharashtra, the bed fall H

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A is 14.06 ft. per mile, the fall up to mile 85 being steeper at the rate of 22.l ft. per mile. In the run of 300 miles within Mysore, the bed fall is 2.12 ft. per miles and in a run of 358 miles within Andhra Pradesh, the bed fall is 3 ft. per mile. Be it noted that rivers Bhima and Tungabhadra are tributaries of Krishna but they themselves are major inter State rivers.

B Tracing back the factual backdrop, it also appears that there was, in fact, an agreement between Madras and Mysore as regards sharing of Tungabhadra water above Mallapuram only. This agreement of July, 1944 fixed the share of Madras and Mysore only in the Tungabhadra water and it did not bind the other riparian States. While it is true that the agreement of July, 1944 preserved c Mysore's existing utilisation it has also established Mysore's right to use other quantities of water. After Independence and formalisation of Hyderabad State's accession to India, the Planning Commission on 31st July, 1951 wrote to the Governments of Bombay, Madras and Hyderabad enclosing copies of summary records of discussion and Memorandum of Agreement and asking them to ratify the agreement. Letters of ratification were sent by the Madras D Government on 17th August, 1951, by the Hyderabad Government on 23rd August, 1951 and the Bombay Government on 30th August, 1951. Mysore, however, refused to ratify the agreement as required. As a matter of fact, on 24th September, 1951 as the records depict, the Mysore Government sent a note to the Planning Commission recording therein that the draft agreement should be modified so as to allow Mysore, the right to use 143.5 T.M.C. of water and the question of ratification would be considered only after modi- fication to the extent indicated above. It is this factual back-drop which has prompted the Tribunal to answer the first issue in regard to the conclusiveness of the Agreement of 1951 noted above in the negative. The Tribunal came to the specific conclusion that since Mysore did not ratify the agreement, there is no operative and concluded agreement between the parties and the ratifica- tion by other States were wholly ineffective.

The next issue raised before the Tribunal was to the effect, viz. 'what directions, If any, should be given in the equitable apportionment of the beneficial use of water of Krishna river and the river valley'. Ort the main issue as above, however, following sub issues were also raised:

SUB-ISSUES

H (1) On what basis should the available waters be determined?

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,,,_ (2) How and oil what basis should the equitable apportionment be A made?

(3) What projects and works in operation Cir under construction, if any, should be protected and/or permitted? If so; to what extent?

(4) Should diversion or further diversion of waters outside the B Krishna drainage basin be protected and/or permitted? If so, to what extent, and with what safeguards? How is the drainage basin to be ·defined?

(5) Should any preference or priority be given to irrigation over production ~f power? c (6) Has any State any alternative means of satisfying its needs? If ~ so, with what effect? )>- (7) Is the legitimate interest of any State affected or likely to be D affected prejudicially by the aggregate utilisation and require- ments of any other State?

.. ..... (8) What machinery, if any, should be set up to make available and regulate the allocations of waters, if any, to the States concerned or otherwise to implement the decision of the Tribunal? E Incidentally, the Krishna water disputes were investigated by the Tribu- .. nal in terms of an order of reference under Section 5(1) of the Inter- State Water Dispute Acts and; the Tribunal upon consideration of the matter forwarded its unanimous report and decision under Section 5(2) of the Act to the Government of India on 24th December, 1973. The parties before the F .Ji,.-- Tribunal, however, taking recourse to the provisions of Section 5(3) of the Act of 1956 filed four separate references for clarification before the Tribunal, and the Tribunal subsequently upon hearing the respective submissions on 27th May, 1976 prepared its further report incorporating therein clarification sought for under Section 5(3) of the Act to the Central Government which was, G however, subsequently published by the Central Government in terms of Section 6 of the Act of 1956 as the decision of the Tribunal.

It ought also to be noticed that the Tribunal in its final order formulated Scheme A for distribution of water for each of these three States. Significantly, however, as regards Scheme A, the Tribunal in no uncertain terms observed H

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A that the same should be reviewed after a period of 25 years. The effect of such an inclusion is to be noticed with some care; but before doing so it would be convenient to note the basic features of the order as passed by the Tribunal firstly in the year 1973 and finally in the year 1976. It is significant to note that the Tribunal while directing Scheme 'A' for distribution of Krishna river water, has also formulated another Scheme (accepted to be as Scheme 'B'), B the details of which would appear hereinafter in this Judgment. Suffice, however, it to note presently, that the Tribunal itself thought it fit not to treat it as an implementable decision.

The basic features of the order as passed in 1973 are as below: c (a) Mass allocation of utilisable dependable flow at 75% and having the detailed parameters of the past years pertaining to the flow of water, the total run of water would be 2060 TMC out of which 1693.36 TMC should be allocated to the three States -.....- for protected uses and the remaining 366.64 TMC (2060 TMC- D 1693.36 TMC) in the manner as below:

TMC

1. State of Maharashtra 125.35

2. State of Mysore 190.45 ~ E

3. State of Andhra Pradesh 50.84

·! Total 366.64

F Thus, out of the dependable flow 2060 TMC, the share of each ~ State is as follows:-

TMC

1. State of Maharashtra 565.00 G

2. State of Mysore 695.00

3. State of Andhra Pradesh 800.00 --;- Total 2060.00 H L

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(b) The determination of the quantity of water which would be added to the 75% dependable tlow of the river Krishna up .to Vijaywada on account of return flows.

(c) In order to give a complete picture, the Tribunal considered it fit and proper to incorporate certain provisions on the subject of apportionment of water of river Krishna between Maharashtra, Mysore and Andhra Pradesh inter alia as under.

(a) Clause III of the order relates to the dependable flow and augmen- tation in the dependable flow due to retun~ flows. c (b) Clauses IV and V embody the scheme for apportionment of water of the river Krishna between the three States of Maharashtra, Mysore and Andhra Pradesh. In Clause V it has been stated with regard to the State of )'>- Maharashtra and Mysore that each of them shall not use in any water year more than a particular quantity of water specified therein. It is necessarily implied that both these States may use, in any water year, water of the river Krishna upto the quantities specified in that Clause subject to the conditions and restrictions imposed by the Tribunal and subject to the availability of water. It has been clarified that water has been allocated to each of the three States enbloc and that subject to the conditions and restrictions, each State shall have the right to make beneficial use of the water allocated to it in any manner it thinks proper. It was made clear that the water allocated to each State is for all beneficial purposes including domestic and industrial uses and no separate allocation is made for such uses.

(c) Clause IX places restrictions on the use of water in the Krishna basin by the three States. Restrictions on the State of Maharashtra that it shall not use in any water year more than 7 TMC from the Ghataprabha sub-basin (K- 3) as otherwise the requirements of the State of Mysore for the projects in that sub-basin may suffer. Restriction on the State of Andhra Pradesh that it shall not use more than 6 TMC from the catchment of the river Kagna in the State of Andhra Pradesh so that waters of that river may reach the main stream of the river Bh~a. While placing. restricti~ns on the use of water beyond\ the stated quantlty by State, the Tnbunal lru.d down an upper limit which is slightly above the total requirement of that State as assessed from the demands ,j which have been either protected or which have been held as worthy of consideration. · H

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A (d) Clause X relates to the restrictions placed on the State of Maharashtra on the westward diversion.

(e) The provisions contained in Clauses XII and XIII are necessary as they would furnish the machinery for determining how much water is used by each State in each water year. They will also furnish valuable data which may B be of considerable importance in future.

(f) Clause XIV deals with the review of the order of the Tribunal by a competent authority or tribunal after the 31st May, 2000.

As noticed above, the Tribunal itself has recorded that the Order ought c to be reviewed after the lapse of a reasonable period of time. The reason for such a conClusion, however, is plain and w1ambiguous and in the words of the Tribunal, the reasons are as below:- ... "After a careful coiisiaeration we are of the opinion that the order ....( of the Tribunal may be reviewed at any time after the 3 lst May, 2000. D This period is considered reasonable by us in view of the fact that during the intervening period there will be increasing demands for water for irrigation and other purposes in the Krishna basin which niay have to be examined in the light of the fresh data that may be avrufable. It may be mentioned that the demands of the three States will by that time take much more realistic shape. Further, in view of _...-,, E the stupendous advance in the technology in the matter of conserva- tion of water and its uses and also for other reasons it may 1become necessary to examine the subject of apportionment of water after the 3 lst May, 2000. We have, however, provided that the authority or the tribunal which will be reviewing the order of this Tribunal shall not, F as far as practicable, disturb any utilisation that may be undertaken by any State within the limits of the allocation made to it by the ...... Tribunal. The Nile Commission of 1925 had recommended a similar provision to the effect that:-

G "The Commission forsees that it will be necessary from time to time to review the question discussed in this report. It regards it as essential that all established irrigation should be respected in any future review of the question." -t If during the intervening period there is an augmentation of the H waters of the river Krishna by the diversion of the waters of any other

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river, no State shall be debarred from claiming before the aforesaid reviewing authority or Tribunal that it is entitled to a greater share in the waters of the Krishna on account of such augmentation nor shall any State be debarred from disputing such claim."

Needless to record that the water being a nature's bounty and social benefactor; ought to be allocated in such a way so as to have its beneficial use by all concerned. The word 'beneficial use' cannot but mean and imply use ~f water which is conducive to the well being of the society - it may be for i1rigation: for domestic use: for industrial purposes: for wild life protection: for pisciculture - it is not possible to comprehend all the factors within the ambit of the expression 'beneficial' but in totality of the situation, one can, c I suppose, attribute a meaning to the effect that beneficial use means 'beneficial use of the society, be it in any sphere'. Admittedly, water is scarce in this country; as such, the use must also be in accordance with strict requirement and not de hors the same. The Tribunal took into consideration various factors in the matter of allocation of water of the river Krishna to the D three States. It is significant to note that the river originates at Mahabaleshwar in Maharashtra and passes through Kamataka and Andhra Pradesh being the last riparian owner and then on to the sea. Any excess water, therefore, which is not utilised by either of these three States falls on to the sea. The Tribunal thus considered five factors in the matter of allocation. E

1. Allocating the waters of certain tributaries of the river Krishna entirely to one State or another and dividing the remaining water on an equitable basis.

2. Allowing guaranteed supply of water to a lower State by an upper State and permitting the use of remaining water to the F upper State with or without any restriction.

3. Restricting diversion by an upper State to its share determined on an equitable basis leaving remaining water for use to a lower State. G

4. Allocating the water of the river Krishna to the three States by percentages to be fixed by the Tribunal.

S. Mass allocation of water of the river Krishna to the three States upto a certain limit providing further that the parties are to share H

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A the water in certain percentages to be fixed by the Tribunal in surplus as well as deficit years.

Having dealt with the issue and having provided Scheme 'A' for allocation, the Tribunal itself, however, observed that "it would be better if we devise two schemes for the division of the waters of the river Krishna between B the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Schemes A and B. Scheme A will come in operation on the <late of the publication of the decision of this Tribunal in the Official Gazette uuder Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra c Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament." It is needless to record that Scheme 'A' does not at all depend upon the agreement of the ,.. __

parties and comes into operation by virtue of the order of the Tribunal. It is D altogether independent of Scheme B. The Tribunal in its wisdom, however, though specific. that Scheme B cannot come into operation without unanimous consent and approval of the parties or by enactment of legislation by the Parliament did, however, note in detail the modalities of Scheme B. It is on this score the Tribunal recorded as below:-

E "Now we proceed to examine how the waters of the river Krishna should be divided between the parties under Scheme 'B'. The essential element in this scheme is that the States of Maharashtra, Mysore and Andhra Pradesh share the utilisable waters of the river Krishna in each water year in stated proportions depending on the availability of water in that year, that is, if there is any deficiency in that year all the states suffer and if there is surplus all the States get ..... _ the benefit, according to their shares fixed by the Tribunal. Another important feature is that it provides for fuller utilisation of the waters of the river Krishna by permitting the parties to construct additional storages in their territories to impound the water that may be flowing in excess of the dependable flow in any water year to be used in that very water year or in the succeeding water years. We have already laid stress on the point that for such a scheme to be workable, an inter- State administrative authority, which may be called the Krishna Valley Authority, sho1.1ld be established by agreement between the parties and failing such agreement between the parties by any law made by

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Parliament under Entry 56 List I of the Seventh Schedule of the A Constitution.

For the foll er utilisation of the waters of the river Krishna we are of the opinion that such an authority should be established to supervise and regulate, if necessary, that the water available for utilisation in the river Krishna in each year be shared by the three B States. For reasons which we have already mentioned we are not setting up such an authority under our Order. But if such an authority is set up either by agreement between the parties or under the law made by Parliament we consider it proper to place on record our views as to how in that case the waters of the river Krishna should c be divided between the States of Maharashtra, Mysore and Andhra Pradesh. Ultimately it is for the parties or for the law made by Parliament to draw up a final scheme and our views are subject to modification in both the cases."

Be it noted that the States of Maharashtra and Mysore, however, raised objections in the matter of conferment of powers in Krishna Valley Authority to transfer water from the reservoir of the lower State for various reasons. But the Tribunal had negatived the same with an observation that obviously the Krishna Valley Authority (KVA) will be composed of high ranking engineers who are expected to use their discretion in the matter of transfer of water from one State to another judiciously. In fine, however, the Tribunal concluded by recording that so far as the Scheme B is concerned the question of enforcement of such a Scheme is left with the "good sense of the parties or to the wisdom of the Parliament".

The "good sense", however, has not dawned on to the parties as yet and neither has the wisdom of the Parliament prompted it to legislate on the score and as such, introduction of Scheme B in the matter of resolution of disputes between the lower riparian State and two upper riparian States viz.-a-viz the water dispute pertaining to river Krishna according to the Tribunal's own view does not and cannot arise and it is because of this conclusion of the Tribunal, G I refrain myself from detailing the modalities of Scheme 'B'.

It would thus be convenient, therefore, at this stage to note the case with which the parties have come into this Court upon invocation of Article 131 of the Constitution. But before so doing, a short but an interesting question bas to be considered as regards interpretation of Article 262 of the Constitution H

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A and as raised by the learned Solicitor General of India while contending that both the suits ( OS No. I and OS No.2) being barred under Article 262 having due regard to the language used therein. For convenience sake, Article 262 is set out herein below-

"262. Adjudication of disputes relating to waters of inter-State rivers B or river valleys.-

(1) Parliament may by law provide for the adjudication of any dispute of complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. c (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 as is referred to in clause (1)." D Incidentally, whereas Article 262 pertains to legislative enactments containing an ouster of jurisdiction of the Supreme Court: Article 131 relates to conferment of the jurisdiction of the Supreme Court in the event of there being any dispute between two States or between one or more States on the one hand and another on the other hand or between Union of India and other E States. Let us, however, analyse the issue of ouster of jurisdiction under Article 262 as contended by Mr. Salve, the learned Solicitor General of India. The heading of Article 262 is rather significant since it reads as "disputes relating to waters" and in the Body of the Article it is provided that in the event of there being any dis_[!ute, the Parliament may by law provide for adjudication of any dispute in regard to use, distribution or control of the waters of, or in, any inter-State river or river valley. Article 262 is specific as regards adjudication of disputes pertaining to water whereas Article 131 provides for a general power and conferment of jurisdiction of the Supreme Court in the event of there being any dispute between two States etc. etc. There is neither any conflict between Article 262 and Article 131 nor, thus, the fields covered therein overlap each other, a specitic exclusion has been thought of by our Constitution framers and being provided for in the Constitution.

The issue, however, is slightly different presently, to wit, as to whether the present suit is barred under Article 262 read with Section 11 of the Act H of 1956. It is now settled and I need not dilate on this score that the Inter-State

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Water Disputes Act, 1956 has been enacted on the Statute Book by the A Parliament in exercise of the powers conferred by Article 262. Section 11 of the Act of 1956 reads as below:-

"11. The bar of jurisdiction of Supreme Court and other Courts - Notwithstanding anything contained in any other law neither the Supreme Court nor any other Court and shall have or exercise B jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act."

There is, therefore, a total ouster of jurisdiction of all Courts. In this context reference may be made to an earlier decision of this Court reported c in AIR 1992 SC 522 (in the matter of Cauvery Water Disputes Tribunal) wherein this Court while analysing Article 262 and the Water Disputes Act, 1956 stated:-

"An analysis of the Article shows that an exclusive power is given to the Parliament to enact a law providing for the adjudication of such disputes. The disputes or complaints for which adjudication may be provided relate to the "use, distribution or control" of the waters of, or in any inter-State river or river valley. The words ''use", "distri- bution" and "control" are of wide import and may include regulation and development of the said waters. The provisions clearly indicate the amplitude of the scope of adjudication inasmuch as it would take within its sweep the determination of the extent, and the manner, of the use of the said waters, and the power to give directions in respect of the same. The language of the Article has, further to be distin- guished from that of Entry 5 6 and Entry 17. Whereas Article 262( l) F speaks of adjudication of any dispute or complaint and that too with respect to the use, distribution or control of the waters of or in any inter-State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys. Thus the distinc- tion between Article 262 and Entry 56 is that whereas former speaks of adjudication of disputes with respect to use, distribution or control G of the waters of any in~er-State rivers or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys (emphasis supplied). Entry 17 likewise speaks of water, that i!'! to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56. H

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A It does not speak either of adjudication of disputes or of an inter-State river as a whole as indeed it cannot, for a State can only deal with water within its territory. It is necessary to bear in mind these distinctions between Article 262,. Entry 56 and Entry 17 as the argwnents and counter-argwnents on the validity of the Ordinance have a bearing on them. B We have already pointed out another important aspect of Alticle 262, viz., Clause (2) of the Article provides that notwithstanding any other provision in the Constitution, Parliament may by law exclude the jurisdiction of any Court including the Supreme Court in respect c of any dispute or complaint for the adjudication of which the provision is made in such law. We have also noted that Section 11 of the Inter-State Water Disputes Act makes such a provision.

The said Act, as its preamble shows, is an Act to provide for the "adjudication of disputes relating to waters of inter-State rivers and D river valleys". Clause (c) of Section 2· of the Act defines "disputes" as follows:

"2. In this Act, unless the context otherwise requires, _

(a) E (b)

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

(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation G of such agreement; or

(iii) the levy 0f any water rate in contravention of the prohibition contained in Section 7". -+ - Section 3 of the Act states that if it appears to the government of any H State that the water dispute with the Government of another State of the nature

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stated therein, has arisen or is likely to arise, the State Government may request the Central Government to refer the water dispute to a Tribunal for adjudication. Section 4 of the Act provides for the constitution of a Tribunal when a request is received for referring the dispute to a Tribunal and the Central Government is of the opinion that the water dispute cannot be settled by negotiations. Section 5 of the Act requires the Tribunal to investigate the matter referred to it and forward to the Central Government the report of its findings and its decision. The Central Government has then to publish the decision under Section 6 of the Act which decision is final and binding on the parties to the dispute and has to be given effect to by them. These dominant provisions, among others, of the Act clearly show that apart from its title, the Act is made by the Parliament pursuant to the provisions of Article 262 of the c Constitution specifically for the adjudication of the disputes between the riparian States with regard to the use, distribution or control of the waters of the inter-State Rivers or river valleys. The Act is not relatable to Entry 56 and, therefore, does not cover either the field occupied by Entry 56 or by Entry 17. Since the subject of adjudication of the said disputes is taken care of specifically and exclusively by Article 262, by necessary implication the subject stands excluded from the field covered by Entries 56 and 17. It is not, therefore, permissible either for the Parliament under Entry 56 or for a State legislature under Entry 17 to enact a legislation providing for adjudication of the said disputes or in any manner affecting or interfering with the adjudication or adjudicatory process or tl1e machinery for adjudication established by law under Article 262. This is apart from the fact that the State legislature would even otherwise be incompetent to provide for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the inter-State river waters beyond its territory or with regard to disputes between itself and another State relating to the use, distribution. or control of such waters. Any such act on its part will be extra-territorial in nature and, therefore, beyond its competence."

Let us, therefore, analyse the prayers in the plaint of O.S. Nos. I and 2 in order to deal with the question of bar of jurisdiction as raised by Mr. Salve. Prayers in OS No. I of 1997 (State of Kamataka v. State of Andhra Pradesh G & Ors.) are set out herein below and they read:

"(a) decree and declare that the surplus water in the river Krishna i.e.: in excess of 2060 TMC at 75% dependability, must be shared in accordance with the determination and directions of the Tribunal, H

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A contained in its Report (1973) and further Report (1976).

(b) decree and declare that the Defendant No. I State of Andhra Pradesh is not entitled to insist on its right to use the surplus water i.e. in excess of 2060 TMC at 75% dependability, so long as Scheme B framed by the Tribunal is not duly and fully implemented by the B State.

(c) Defendant No.3 be directed by a permanent order and injunction including mandatory, decree, order and injunction, to notify Scheme B framed by the Tribunal and made provision for establishment of a Krishna Valley Authority and for implementation of t11e directions of c ilie Tribunal in the Report (1973) and Further Report (1976), as contemplated under Sec.6A of ilie Inter State Water Disputes Act, 1956.

(d) For a permanent order and injunction restraining the Defendant D No.I from continuing·to execute ilie following projects vis., Telugu Ganga, Srisailam Right Bank Canal, Sirisailam Left Bank Canal, Bheema Lift Irrigation and Pulichintala Projects till ilie Scheme B framed by the Tribunal is duly and effectively put into operation and implemented.

E (e) Pending tlle hearing and final disposal of tlle suit, tlle Defendant No.3 be restrained from clearing any new projects of the State of Andhra Pradesh not envisaged in Scheme A.

(t) Pending tlle hearing and final disposal of tlle suit, tlle Defendant State of Andhra Pradesh be restrained by order and injunction of this F Hon'ble Court, from using any portion of surplus waters in excess of 2060 TMC for allowing any of the following projects viz., Telugu Ganga, Srisailam Right Bank Canal, Sirisailam Left Bank Canal, Bheema Lift Irrigation and Pulichintala Pr~jects until implementation of Scheme B framed by the Tribunal. G (g) For such other reliefs as ilie nature of case requires."

The present suit (O.S. No.I of I997) is tllus a suit for a declaration tllat tlle surplus water in the river in excess _of 2060 T.M.C. at 75% dependability must be shared in accordance with the determination and declaration of the H Tribunal. The second prayer is also pertaining to a declaration that the State

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [BANERJEE, J.) 445 of And.bra Pradesh is not entitled to insist on its right to use surplus water. The A main prayer in suit No.I, however, is the prayer for a mandatory injunction to notify Scheme B framed by the Tribunal and to make provision for establishment of a Krishna Valley Authority as contemplated under Section 6A of the Water Dispute Act of 1956. The three prayers above, however, unmistakably depict that the plaintiff State of Kamataka has moved this Court B for v!ndication of a right in accordance with the direction of the Tribunal as contained in the reports of 1973 and 1976. It does not pertain to any water dispute as such, neither it can be claimed to be so having regard to the avennents in the plaint. Mr. Salve, however, appearing for the Union of India and initiating the preliminary issue as regards the non-maintainability under Article 262 contended that Section 2 (c) of the Act of 1956 is of widest c possible amplitude by reason of the definition of the words 'water dispute'. 'Water dispute' have been defined under Section 2(c) of the Act of 1956 as below:-

"2.a&b_ _ __ D (c) "water dispute" means any dispute or difference between two or more State Governments with respect to (i) the use, distribution or control of the waters of, or in any inter-State river or river valley; or (ii) the interpretation of the terms of any Agreement relating to the use, distribution or control of such waters or the implementation of such Agreement; or (iii) the levy of any water-rate in contravention of the prohibition contained in Section 7."

The dispute pertaining to water in order to be subject, however, tc Section 11 must relate to use, distribution and control by reason of the definition Section itself, since the same has specifically used the expression 'use, distribution and control of waters in any river.' In the event, it does not come within the ambit of the expressiO!l 'use, distribution or control,' Section 11 which bars the jurisdiction of all Courts in respect of any water dispute which is otherwise to be referred to the Tribunal would not have any manner of application. The test of maintainability of a legal action initiated by a State G in a Court would thus be whether the issues raised therein are capable of being referred to a Tribunal for adjudication. In the factual matrix of the matter under consideration, question of adjudication of any water dispute within the meaning of Section 2(c) would not arise. The suit pertains to implementation, but does not require any further adjudication of water rights between the H

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A States. Reference to two decisions of this Court N.P. Ponnuswami v. Returning ....... Officer, Namakkal Constituency & Ors., [1952] SCR 218 and Mohinde1· Singh Gill & Anr. v. The Chief Election Commissioner; New Delhi & Ors., [1978] 2 SCR 272 in the contextual facts may not have much relevance; as such, we need not detain ourselves in dealing with the same. The plenary power of '· Article 329 (b) which is a blanket ban on litigative challenge to electoral steps B taken by the Election Commission for carrying forward the process of election to its culmination in the formal declaration of the results rests on to principles as more detailed in Mohinder Singh Gill's case. But, as noted above, the ~.

contextual facts do not warrant any detailed discussion and hence I refrain from doing so in regard thereto. Suffice it to note that whereas the adjudication c of water dispute is wholly barred by reason of the power as contained in Section 11 of the 1956 Act read with Article 262 but by reason of the factual aspect of the matter and by reason of the prayer for implementation of the award rather than adjudication, the mischief of the bar of the Section 11 will ., I not have any application whatsoever. In that view of the matter the preliminary ~- 1.- issue as raised by Mr. Salve that the provision for exclusion is operational in· D r the facts of the circumstances of the matter under consideration cannot be ... acceded to. The suit, therefore, is otherwise maintainable.

As regards the second suit being O.S. No.2 of 1997 (State of Andhra Pradesh vs. State of Kamataka and Others) and a perusal of the prayers therein ~ E indicate that suit is for a declaration in regard to utilisation of the quantity of the water as permitted by the decisions of Krishna Water Dispute Tribunal. And for the same reasons also the preliminary issue as raised by Mr. Salve vis- a-vis the second suit being O.S.No.2 of 1997 also fails. r-

F Turning attention on to the merits of the matter in the issue, be it noticed that at the instance of the parties, there are altogether 34 issues raised in the two suits apart from the preliminary issue of non-maintainability of suits under Article 262 read with Section 11. We appreciate the most learned instructive --- and lucid submissions that have been made for a number of diiYS on behalf 1.- of the parties. But in my view the area of dispute is rather limited and scope restrictive and as such I need not set out all the issues raised in the suits above noted. Though, of course, if I may note that the submissions made on behalf of the parties appearing before us have been most illuminating and instructive, to assess, however, the crux of the matter being one of the basic elements of + the judicial approach and it is in this context, I do feel it expedient to record that in O.S. No.1 of 1997, the only question which needs an answer is as to

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whether Scheme 'B' as suggested by the Krishna Water Disputes Tribunal be termed to be a decision within the meaning of Section 6 of the Act of 1956.

As regards the second suit where the State of Andhra Pradesh initiated the action in Court being O.S. No.2 of 1997 the height of the dam at Almatty is the focal point for consideration and it is on this score this Court has been plea&ed to have Issue No. 9(a) and (b) for adjudication which reads as below: :, "9.(a) Whether the constmction of the Almatti dam with a FRL of 524.256 meter together with all other projects executed, in progress and contemplated by Kamataka would enable it to utilise more water c than allocated by the Tribunal?

(b)Whether Kamataka could be pe1mitted to proceed with constmc- tion of such a dam without the consent of other riparian State, and without the approval of the Central Government? D Needless to record here that the learned submissions center around these two issues in whole of the two suits being O.S. No. I and O.S. No. 2 and which have in fact occupied more than 25 hearings before this Bench.

It would, however, be convenient at this juncture to note that the issue pertaining to Scheme B - whether a decision or not, is the most relevant and the all important issue. But before dealing with the same on the factual aspects, a h .uried reference to the exact meaning of the word 'decision' as used in the 1

Act of 1956 ought to be made. In common English acceptation the word "decision" means and implies settlement : conclusion: formal judgment: resolved (the Concise Oxford Dictionary, New Seventh Edition). The situation we have, however, is slightly easier in the sense that the language of the Statute (Act of 1956) is rather simple and categorical. Section 5(2) of the Act specifically provides that when a Tribunal has been constituted in terms of Section 4, the Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving the decision of the matters referred to it and Section 5(3) provides that if upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or the guidance is needed, the Central Government or the State Government within three months from the date of the decision, again refer the matter to the Tribunal for consideration and the decision of the Tribunal shall H

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A stand modified accordingly. --4(

Incidentally, in the contextual facts the decision of the Tribunal was pronounced in 1973 but by reason of applications in terms of Section 5(3) of the Act of 1956, the Tribunal published a further report in the year 1976. Be ": it noted that the decision in terms of Section 5 is required to be published by B the Central Government and on such publication in the Official Gazette in te1ms of Section 6 of the Act of 1956, the decision of the Tribunal shall stand as final and binding on the patties to the dispute and shall be given effect to by them. The decision of the Tribunal, thus assumes a very significant role in the matter of adjudication of water dispute by the Tribunal. Conceptually - an c ideal situation: Constitution Framers in their great thoughtfulness and by reason of divergence of language and custom provided that all Inter-State Water Disputes shall have to be resolved by a decision of the Tribunal set up therefor. In the instant case there was in fact such a Tribunal which did go into the issue of allocation of water of river Kiishna between the three States as ...._ noted above . The decision of the Tribunal has to be implemented and this is D a Statutory requirement, therefore, and resultantly the decision will assume its conclusiveness and its binding nature immediately after publication of the

. same in the Official Gazette. :- It is rather significant to note that the Issue No.2 as raised before the E T1ibunal and noticed hereinbefore has been answered by the Tribunal in the final order itself by way of Scheme A, the detailed Scheme as suggested by the Tribunal. Scheme B however, does not find place in the final order. Admittedly, the Tribunal delved into the issue as an alternative scheme for resolution of disputes by establishment of Kiishna Valley Authority and it is this Scheme - it is this second Scheme which Mr. Naiiman, Sr. Advocate F appearing for the Plaintiff State of Karnataka contended that the Scheme itself . ..,.. ought to be treated as a part of the final order and decision of the Tribunal .. and as such ought to be implemented.

It is to be noted, however, that the authority spoken of (Kiishna Valley G Autl1ority) in terms of the order of the Tribunal itself has to be established either by agreement between the parties or by ai.1y law made by the Parliament under bntry 56 of List I of the Second Schedule to the Constitution. The + Tribunal in no unce1tain terms stated that propriety would not authorise the constitution of such an authority. If I may state with all deference to the H Tribunal that there is no question of any propriety involved in the matter in

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~ issue at all since the T1ibunal being a creature of the statute hadn't had any A authority or jurisdiction to constitute any Board or Authority - it has to act within the parameters as laid down under the statute and not de hors the same and in the absence of such an authority, question of any propriety does not and cannot arise. The decision of the Tribunal, the statute provides, shall have a binding force on the parties to the water dispute, upon publication of such a B decision. At best, observations pertaining to Scheme B and the proposal for establishment of Krishna Valley Authority can be only recommendatory in nature since Scheme B does not admittedly fo1m part of the decision of the Tribunal which has since been published by the Central Government in te1ms of the provisions of the statute. c It is by reason of the aforesaid I am, however, rather surprised that the Tribunal has taken upon itself to frame an alternative scheme when admittedly it had no power, authority or jurisdiction whatsoever to constitute Krishna Valley Autho1ity which is ascribed to be the "heart of Scheme B". The Tribunal has had to rely upon either the good conscience of the parties or the legislative will of the legislature to have a legislation in that regard . D

With due deference to the Tribunal again I say that I have not been able to appreciate the need of propounding a 2nd Scheme as Scheme 'B' when the Tribunal itself stated:

I. "When directing the transfer of water, the Krishna Valley E

.. Authority may give appropriate directions regarding the manner in which the water so transferred shall be used by the State, receiving the water."

II. "If it is found on final accounting at the end of the water year F tliat the water usedtin the water year by any State is in excess or less than its share under paragraph 2, the said Authority may, subject to the provisions of paragraph 3, take such steps as it deems necessary to adjust the water accounts of the parties by regulating the extent of the use of water to be made by each State in succeeding years." G Ill. "The Krishna Valley Authority shall tentatively determine the shares of all the States."

IV. "The Krishna Valley Authority will be in a position to give directions to the parties to adjust their utilisations in such a way H

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A that the use made by each State at the end of a water year is as far as practicable .... "

V. 'The Krishna Valley Authority is to ensure that the parties get \ waters in proportion to their share. For this purpose it can take any step which it deems proper at any time." B VI. 'The Krishna Valley Authority may even direct transfer of water from the project to upper State to the project of the lower State from time to time."

c VIL "We take it that the Krishna Valley Authority will be composed of high ranking engineers who are expected to use their discretion in the matter of transfer of water from one State to another judiciously."

VIII. "A highly competent body such as the Krishna Valley Authority D which will not only consist of the representatives of the States but also of the Government of India will take due care while directing the transfer of water from one State to another. As a further safeguard, it may be provided that the direction of · transfer of water from one State to another shall be by a E resolution passed in a meeting in which all the available members nominated by the Government of India are present."

The extract from the report of the Tribunal as above, would lead to an - unmistakable conclusion that the Tribunal wanted to provide certain guidelines p to the Krishna Valley Authority as and when it is so constituted and significantly, the Tribunal itself has left it to the good sense and better appreciation of the parties or the legislative intent for the formation of such an authority - this is where I respectfully join issue: even conceptually till date the authority is not born and thus not even in embryonic stage.

G It is on this factual backdrop that both Mr. Parasaran, Sr. Advocate appearing for the State of Andhra Pradesh .and Mr. Salve, Solicitor General appearing for the Union of India and Nir. Andhyarujina, Sr. Advocate appearing for the State of Maharashtra contended in a similar tone that the prayers in the Suit (O.S. No. 1 of 1997) being an amalgum of two schemes, H question of grant of any relief would not arise. As a matter of fact, the learned

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Solicitor General for the Union of India, drew the attention of the Bench to the following statements of the Tribunal in its order:

"After deeply pondering over the matter we have come to the conclusion that it would be better if we devise two schemes for the division of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Scheme A and B. Scheme A will come in operation on the date of the publication of the decision of this Tribunal in the Ofticial Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Mal1arashtra, Mysore and Andhra Pradesh constitute an inter-State c administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an auth01ity

- is constituted by legislation made by Parliament. Scheme A does not at all depend upon the agreement of the parties and comes into operation by virtue of the order of the Tribunal. It is altogether independent of Scheme B.... " D

" .... In the end so far as the Scheme B is concerned, we leave the question of the enforcement of such a scheme to the good sense of the parties or to the wisdom of Parliament."

On the wake of the statements as recorded by the Tribunal as above, I E do not see any reason to ascribe Scheme B as the decision of the Tribunal

- requiring publication or notification by the Central Government in terms of the provisions of the Act of 1956.

Section 6 of the Act of 1956 provides for publication of the decision of the Tribunal and is rather specific in its language and on an analysis of the same it appears that there is existing a statutory and mandatory requirement, to publish, in the event, a decision is communicated to the Central Government by the Tribunal pe1taining to a water dispute within the meaning of the Act of 1956. As noticed above, the Tribunal itself recorded in no uncertain terms that in so far as Scheme B is concerned, question of enforcement thereof would be dependant upon the good sense of the parties or to the wisdom of the Parliament. This is thus not a decision in terms of Section 6 of the Act of 1956 so as to create an obligation for its publication so far as the Central Government is concerned. The Tribunal itself has treated it differently and in no uncertain terms recorded that whereas Scheme A should be enforced H

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A immediately, enforcement of Scheme B shall be effected on the happening of either of the two contingencies as noted hereinbefore. ~

One redeeming feature I wish to emphasise, well it is true, that in spite of Article 262 and in spite of the factum of the present Suit (O.S. No.I and 2 of 1997) not being hit by Article 262 but that does not, however, clothe the B Comt to pronounce on an issue which the Tribunal itself thought it fit to leave open. The exercise of jurisdiction on the part of the Tribunal to deal with the issue_ of Scheme B in the order is totally outside the purview of the x_ authorisation and as such the observations cannot but be ascribed to be wholly without jurisdiction. As noted above, the heart and soul of Scheme B c admittedly has not come up as yet either at the instance of the parties or at the legislative intervention. As such, question of notifying Scheme B by the Central Government and an order of this Court on that count does not and cannot arise. The obligation to notify or publish arises only in the event of ~ compliance of statutory requirement or there being a final decision of the Tribunal and in the contextual facts as noted above, there is no implementable ~ D Scheme B by any stretch neither can the same be termed to be a decision of the Tribunal pertaining to Krishna Valley water dispute between the three States of Maharashtra, Karnatak:a and Andhra Pradesh. In short, there must be an implementable decision and when the Tribunal itself recorded its non- implementability, issuance of an order of Mandamus on to the Central E Government by this Court in exercise of its power under Article 131 does not and cannot arise.

F Significantly, there has been a further criticism in regard to the prayer for notification of Scheme B by the learned Solicitor General. According to him, the decision of the Tribunal was pronounced in the year 1973 and the further report after Section 5 (3) proceeding came in the year 1976 and the - Scheme B at best being a recommendation cannot, however, be ascribed to be a decision in the year 1997 and I do find myself in agreement with Mr. Solicitor that a Tribunal cannot.. exhypothesia pronounce a decision which requires for its implementation, a law to be enacted by Parliament or by consent of the parties, more so by reason of the fact that the Union Government is not a party to the dispute and the Tribunal would not otherwise have the jurisdiction to issue any directive and conversely, the Union Govern- ment will not have any obligation either to agree to cany out any directive. + Scheme B has been expressly recommended subject to alternative contingencies - (I) an agreement between the parties or, (II) a legislation by

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Parliament and it is by reason of the factum of non-fulfilment of either of the A two happenings even during this inteffegnum, question of Scheme B as being capable of being notified as a decision does not arise. Scheme B in short, would not constitute a decision. The Krishna Valley Authority spoken of earlier and being the 'heart of the Scheme' shall have to be created by the Central Government and having due regard to the factum that Central B Government has not created any such authority as yet, question of implemen- tation of Scheme B, as a decision of the Tribunal does not and cannot arise. • Needless to record, that there cannot possibly be any binding direction either and, in fact, there has been none in the matter of constitution of an Authority such as Krishna Valley Authority - it has been left solely to the concUffence of the parties and the legislative intent of the legislature. C

Let us, however, at this stage, shortly record as to how the parties have dealt with the report of the Tribunal vis-a-vis Scheme B and constitution of Krishna Valley Authority. The documentaty evidence as placed before this Court, however, negates even the desire of the plaintiff (State of Kamataka) to implement Scheme B or for formation of Krishna Valley Authority. D

As early as in 1989, Secretary to the Government of India, Ministry of Water Resources by a letter dated May 2, 1989, addressed to the Chief Secretaty, Government of Kamataka, informed the latter inter alia the follow- ~: E

It may be recalled that in respect of Krishna basin the concept of a Krishna River Authority has already been described by the F Krishna Water Disputes Tribunal in the context of Scheme "B" providing for fuller utilisation of Krishna waters.

It is, therefore, requested that the issue of establishment of Krishna Valley Authority may kindly be considered in the light of the G developments quoted above and the views of the Government of Kamataka communicated early so that appropriate further steps can be taken."

By reason of the factum of there being no response from the Kamataka State, further letters were written arid eventually on 17th August, 1992, the H

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