STATE OF ANDHRAPRADESH v. STATE OF KARNATAKAAND ORS.

A Secretary to the Government of Karnataka, Irrigation Department addressed a letter to the Secretary to Government of India, Ministry of Water Resources (Ex.P.K.93) with the following observations:

"I write to invite reference to the letter cited above and to inform you as follows:- B (a) the State of Karnataka is examining, in depth. the subject of establishment of an authority to be called as Krishna Valley Authority for implementing the Scheme "B" of allocation as formulated by the Krishna Water Disputes Tribunal. c (b) The views of Karnataka on this subject will be communicated as soon as a final decision is taken in the matter.

I am further directed to request you not to take any decision in the i matter, without hearing the views of Karnataka, as this issue will have D far reaching implications on the interests of the States in the Kiishna Basin." ·

Subsequently, as regards thl! establishment of Krishna Valley Authority, Under Secretary to the Government of Karnataka, Irrigation Department addressed a letter dated 30.8.93 to the Secretary to the Government of India, E Ministry of Water Resources to the following effect:

"I am directed to refer to the Government letter dated 17.8.92 under reference and to communicate the following comments of Karnataka on the establishment of Krishna Valley-

F (a) The Krishna Water Dispute Tribunal has considered in its final order, only scheme "A" for implementation, i.e. allocation of 75% dependable flows only. The order of the Tribunal comes up for review in 2000 A.D. the time upto 2000 A.D. is required by the State for the implementation ofprojects as per Scheme "A" of allocations ordered G by the Tribunal. The Tribunal, in its final order has not contemplated any machinery to be set up for the Scheme "A" of allocation and hence there is no necessity for the setting up of the same. (Emphasis supplied)

(b) The constitution of machinery was only contemplated for scheme H "B" where surplus flows also had to be allocated. But Scheme "B"

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did not f onn part of the final ord(!r ofthe Tribunal nor have the parties A agreed so farfor Scheme "B". The machinery can come only when parties opt for Scheme "B". (Emphasis supplied)

(c) However, even without reference to Scheme "B", the surplus water can be shared by the parties by mutual agreement. The basin B States are considering this at present.

(d) In view ofthe above, Kamataka Government is ofthefinn opinion that establishment of Krishna Valley Authority is not called for at present. " (Emphasis supplied) c The further documentary evidence as late as even 19th September, 1995 would be of some assistance in the matter, the same being a letter from the Secretary to the Government of Kamataka, Irrigation Department to the Chief Engineer (PAO), Central Water Commission, the letter inter alia recorded the fu~~: D "Further at Page-3, Para-I of the proceedings, it is mentioned that Government of Kamataka may be agreeable to the proposal of constitution of Inter-State Krishna-Valley authority. In this connec- tion, I would like to point out that I had not stated about agreeing to the proposal of setting up of Krishna Valley Authority but the E proposal made was that Central Water Commission or any such authority can monitor regulations from Almatti dam under UK.P with the proposal of keeping FFL of Almatti Dam at 521 M, and the utilisation under UKP being limited to l 77trnc as per the planning made by the Karnataka State based on the award of the Krishna Water F Disputes Tribunal."

Shortly thereafter, by a letter dated 20th November, 1995, Shri P.V. Rangayya Naidu, Minister of State of Water Resources, Government of India addressed a letter to Shri H.D. Deve Gowda, Chief Minister of Kamataka recording inter alia the following: G

"The Tribunal had considered a Scheme 'B' which envisaged utilisation of average flow in Krishna River. For implementation of this Scheme it was envisaged to set up a Krishna Valley Authority. It would have ensured fuller utilisation of water of River H

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A K.tishna. However, the Tribunal did not include Scheme 'B' in its final order.

National Water Policy adopted by the National Water Resources Cow1cil in September, 1987 laid down that the river basin should be taken as a w1it for planning and development of water resources. With B a view to operationalizing major components of the Policy, a sub- committee of the Consultative Committee of the Ministry of Water Resources was fo1mulated. This Committee also recommended that for all the major inter-state rivers, river basin organisations should be established by enacting suitable legislation. c If it is agreeable to you, I shall convene a meeting of the hTigation Ministers of K.tishna Basin States for working out the constitution and functions and the modalities for setting up of Krishna Valley Authority."

D The reply to the said letter, P.K.-97, by letter dated 3.2.96 (P.K.98) is also of some importance and the same is set out hereinbelow:

"Please refer your DO letter cited above wherein a proposal has been made to convene a meeting of Irrigation Ministers of K.tishna Basin States for working out the constitution and functions and the modalities E for setting up of Krishna Valley Authority.

In this connection, I would like to draw your attention to the Scheme B as envisaged by the Krishna Water Disputes Tribunal which provides for a fuller and better utilisation of the waters of the river Krishna. Only on the coming into operation of this scheme, Krishna F Valley Authority has to be established.

So far, three Inter-State meetings at the level of Chief Ministers have been held, the first one on 21.4.1990 at Tirupathi, the Second Meeting on 22.8.1990 at Mysore and the third meeting on 22.5.1993 at G Mahabaleswara, to resolve the issue of sharing the surplus waters of the Krishna basin. The fourth meeting is proposed to be held at Srisailam, after exchange of data as decided in the 3rd meeting which has not taken place sci far.

I feel that the Constitution of Krishna Valley Authority can follow, H when once a consensus on Scheme B emerges."

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The documentary evidence therefore, are galore to unmistakably depict A the intention of the State of Kamataka up to the year 1996 as to the implementatioi; of Scheme B or the establishment of Krishna Valley Authority. As a matter of fact, there appears to be some justification in the contention of Mr. Parasaran that upon acceptance of the report of the Tribunal in its entirety, question of implementation of Scheme B would not arise. Scheme B B would only come into effect as contended on the happening of two contingen- cies as noted above more fully and since none of the contingencies had taken place, question of implementation of Scheme B would not arise and it is on this score that Mr. Parasaran led very strong emphasis on the correspondence disclosed in the matter whereupon it is evident that Kamataka never wanted to implement Scheme 8 neither the establishment of Kiishna Valley Authority. c Even the precautionary advise of the Central Water Commission to the iiparian owners did not yield any result and the state of the facts were such that an omission even, in the minutes was seriously pointed out so that no contra ~ expression of opinion would find place on record and the matter was proceeded with that tenor and vigour for all these years. In the year 1997, D however, the State of Kamataka thought it prudent to institute the suit for implementation of Scheme B. I do not find it to be ve1y wrong when both Mr. Parasaran and Mr. Andhyarujina appearing for the State of Andhra Pradesh and Maharashtra respectively contended that the whole gamut of reasoning for this sudden change needs to be gone in detail and the matters undoubtedly needs a further look. Both the learned Senior Advocates have E pressed into service the report of the Tribunal as regards the review of the whole situation in May, 2000 insofar as Scheme 'A' is concerned as othe1wise there would be undue sufferance of the people of the riparian States. The documentary evidence noticed above lend credence to the submission of the State of Andhra Pradesh and Maharashtra. F

The review aspect of the matter, in this context, ought also to be noticed namely the review of the distribution of water after 25 years as contained in the report of the Tribunal and which has since been published by the Central Government in terms of its obligation under Section 6 of the Act of 1956. The Tribunal itself felt that while Scheme B may be otherwise beneficial but G Scheme B cannot be termed to be a part of the final order or the decision of the Tribunal warranting implementation by the Central Government.

The third aspect of the matter is in regard to the concept of equities. Undoubtedly, some projects have been constructed both by Maharashtra and H

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A by And.bra Pradesh and in the event of there being some change of situation, the national exchequer would very severely hit since the project cost are otherwise phenomenal. Not only there would be a drainage of national economy but correspondingly, the same will have its due effect on the entire super structure of the country. In any event, the Scheme A itself is due for review in the month of May, 2000 and obviously the review shall have_to be B by a Tribunal and it would be open for the Trib1mal to have a fresh look into the matter. Incidentally, the Government of India at one point of time thought of implementation of Scheme B and all its efforts on this score however have been rendered nugatory by the State of Kamataka as noticed hereinbefore by way of reproduction of documentary evidence. c In any event, the claim of Karnataka in a suit for implementation of Scheme 'B' should not be pressed to a logical extent without regard to the relative suffering and the time during which the State of Kamataka have let the State of And.bra Pradesh and State of Maharashtra to go on with Scheme -..... 'A' without any complaint whatsoever. Equity in any event would not permit D enforcement of Scheme 'B' in the contextual facts. Observations of the US Supreme Court in State. of Wisconsin vs. State of Illinois (74 L. ed.799) lend support to the above.

Undoubtedly, by reason of the long lapse of time the whole issue needs E a relook and I am sure one of the ripaiian State would adopt the necessary steps in regard to constitution of such a Tribunal in due fulfillment of wishes and desires of the earlier Tribunal which itself has recorded a relook of the whole Scheme in the month of May, 2000.

F As regards the issue pertaining to the grant of Mandamus against the Central Government to frame a Scheme under Section 6 A of the Act and as submitted by Mr. Naiiman, be it noted that the Act of 1956 is a complete code in itself and does not create any agency for executing the decision of the Tribunal. The Act is specific enough to provide that the decision of the Tribunal can be enforced by the State by reason of the same being binding G nature as far as the States are concerned and as dealt with more fully hereinbefore the Union Government is not bound in any. way.

Apropos the issue, however, Mr. Salve's stress was on four counts: - on the first count Mr. Solicitor General contended that "the decision of the H Tribunal, as already stated, does not bind the Central Government. If Section

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6A is consuued as a power coupled with a duty, it must necessarily follow that upon its pronouncement the decision of the Tribunal binds the Union (which is not even a party to such decision) to the extent that it compels the union to do all that is necessary to implement such decision. Conversely, the implementation may itself involve obligations upon the union which cannot be imposed upon it by a Tribunal whose jurisdiction is confined to the parties to the water dispute. On the second count he contended that Section 6 and Section 6A operate in different fields - Section 6A conditionally empowers the union to take steps which it may consider appropriate to implement the decision of a tribunal. ·This. power of the union is not conditional upon any disobedience by the States, nor is it con.fined to situatfons where the Tribunal directs the constitution of an authority: On the third count he contended that c the principle of "power coupled with a duty" is therefore inapplicable on account of the fact that the decision of the Tribunal is not made binding upon the union under Section 6 of the Act. It also cannot be invoked since the nature of the power conferred under Section 6A is clearly legislative in character, which is discernible inter alia from D A

B. the nature of the power conferred.

The power to frame regulations, which would have overriding ,. effect. E C. The nature of Parliamentary control.

D. The overiding power confe1Ted in Section 6A (6).

On the fourth count Mr. Solicitor General contended that the provision expressly provides that Parliament may decide that no scheme is necessary in the circumstances. This clearly indicates that in the first instance, its delegate - the central government - would have to decide whether a scheme is necessary. It would be utterly inconsistent with the scheme of the statute to suggest that the central government is under a duty to frame a scheme,. but in exercise of Parliamentaiy control, the necessity of the scheme is expressly referred to as one of the factors which may be considered.

The submissions have been made out on a total perspective of the situation and without dilating any further I record my concurrence therewith. The law as regards the issuance of a mandatory order or writ depends upon the authority exercising the power as well as the nature of the function and H

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A obligations arising therefrom. It is settled law that such a direction cannot possibly be granted so as to compel an authority to exercise a power which has a substantial element of discretion. In any event the mandamus to exercise a power which is legislative in character cannot be issued and I am in full agreement with the submission of Mr. Solicitor General on this score as well. At best it was only be an issue of good governance but that by itself would not mean and imply that the Union Government has executive power even to force a settlement upon the State.

In that view of the matter the Suit being O.S.No.l of 1997 though otherwise maintainable but is devoid of any merit and the reliefs prayed for are wholly unwa1ranted in the contextual facts and as such dismissed without however any order as to costs.

As noticed above the principal point of controversy in O.S.No.2of1997 ')o- pertains to the height of Almatti Dam. My esteemed Brother Pattanaik, in the main judgment has dealt with the issue in great length and so has Brother Majmudar, in his concurrent judgment. While recording my concurrence with the conclusion reached, I would like to record my own reasonings therefor though, however, restricted to very specific issues as noted hereinbelow since I adopt the same reasonings as recorded in the above noted two judgments as regards the other areas of controversies. E Before, however, proceeding with the matter, a significant development during the course of trial of this suit ought to be noticed, since the parties herein have addressed this Court at length on the same. The record of the proceedings dated 30th September, 1997 records a concession on the part of F Shri F.S. Narirnan, Senior Advocate appearing for the State of Kamataka being the Defendant No.1(0.S.No.2) and Shri T.R. Andhyarujina, former Solicitor General of India, appearing for the State of Maharashtra being the Defendant No.3 (O.S.No.2) in the matter of acceptance of the prayer in the plaint in O.S.No.2 of 1997 filed by the State of Andhra Pradesh wherein the Plaintiff State of Andhra Pradesh prayed for a declaration that the report/decision dated G 24.12.1973 and further report/decision dated 27th May, 1976 of the Krishna Water Disputes Tribunal in their entirety are binding upon the three riparian )- '

States of Maharashtra, Kamataka and Andhra Pradesh as also the Union of India. The order of this Court of 30th September, 1997 as noted above recorded that by reason of such a concession, question of there being any H controversy as regards the binding nature of the decision of the Ttibunal dated

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24th December, 1973 and as modified by further report and decision dated A 27th May, 1976 between the three riparian States would not arise. The order however, records that the learned Attorney General appearing for Union of India was otherwise unable to make any statement by reason of lack of instructions in the matter but this Court was pleased to record that a partial decree to this extent on the basis of the concession or admission of the B Defendant Nos. 1 and 3 (Karnataka and Maharashtra respectively) can be passed and as such no further issue need be framed to cover this prayer in the * plaint.

It is this order which has been taken recourse to by Mr. Nariman in support of his contention that by reason of unequivocal acceptance of the C prayer in the plaint, resistance on the part of Andhra Pradesh for declaration for implementation of Scheme B is not only unwarranted but unjustified. Mr. Nariman contended that the concession of the two upper riparian States has made the task of this Court easier by reason of the factum of acceptance of the case of the Plaintiff (State of Andhra Pradesh) as regards the implemen- D tation of the decision of the Tribunal in its entirety, more so by reason of the fact that the order of the Tribunal itself contain the second Scheme in the form of Scheme B. Quite some time has been spent on this issue and at the first blush the same also seemed to be rather attractive, but on a closer scrutiny of the submissions of the parties and more so that of Mr. Ganguly apropos the written statement filed by the State of Kamataka recording its E understanding of the case as made out by the Plaintiff the State of Andhra Pradesh, the point as raised can not be sustained at all for convenience sake, the relevant extracts of the understanding of the State of Kamataka as regards the averments in the Plaint filed by the State of Andhra Pradesh, are set out hereinbelow: F

"3. MAIN CONTENTIONS OF THE STATE OF ANDHRA PRADESH

3.1 State of Andhra Pradesh contends that the entire report and Further Report of the Tribunal should and ought to have been G gazetted and if gazetted, it would disclose that Kamataka was restricted to utilise for irrigation 155 TMC. in Upper Krishna Project and for that purpose the height of the Dam could not be more than 519.6 m. (Note: It is not disputed by Andhra Pradesh that the present stage of construction of the Almatti Dam is upto H

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A only 509.0 m.).

3.2 that if the Report and Further Report are taken into account, it will be clear that the area to be inigated under the Upper Krishna Project would be of the order of 14.2 Lakh Acres. - and Kamataka has unilaterally planned to increase, the area to be B irrigated to 23.77 lakh acres which is contrary to the Decision of the Tribunal.

3.3 that if Kamataka is permitted to go ahead with raising of Almatti dam beyond RL 519.60 m, it enables storage of more than 200.00 TMC. and utilisation of about 400 TMC. Therefore, c according to Andhra Pradesh the downstream flow would be gravely affected and consequently the power and irrigation needs would suffer.

* * * * * * *" D On the wake of the aforesaid understanding as recorded in the written statement, Mr. Ganguly the learned Senior Counsel for the State of Andhra Pradesh being the Plaintiff in O.S. No. 2 of 1997 contended that the prayer made in the Plaint ought to be appreciated in the context of the averments made in the Plaint i~self and the appreciation thereof by the E Defendant and not de hors the same. Perusal of the statement as above would unmistakably depict the specific understanding of the State of Karnataka as regards the averments in the Plaint and that by itself negates the submission of Mr. Nariman. Having come to the conclusion as above, I need not dilate much on the other part of the submissions of Mr. Ganguly more so by reason of the fact that the same has been dealt with by Brother Pattanaik, with very great lucidity.

One of the principal contentions of Mr. Ganguly as regards the issue of height of Almatti Dam is the facturn of acceptance of Scheme A, as tl1e decision of the Krishna Water Dispute Tribunal. Mr. Ganguly contended that the decision having been published in terms of statutory requirement has a binding effect. Mr. Ganguly contended that out of total available water of 2060 TMC for distribution between the party States on agreed 75% dependability, the Tribunal allocated 1693.36 TMC to the three riparian States as protected utilisation and the balance quantity of 366.64 TMC be divided between three H States as below:

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I State of Maharashtra 125.35 TMC A

II State of Mysore 190.45 TMC

III State of Andhra Pradesh 50.84 TMC

B The Tribunal in Clarification No.XXI as appears from Exhibit P.K.11 recorded the following:

"In MR Note No.30, MY Note No.17 and AP Note No.14, the States of Maharashtra, Kamataka and Andhra Pradesh set forth their revised claims for allocation of water out of the water left after providing for all the protected c utilisations. We assessed the needs of the three States after considering their revised demands. We have allowed the demands for Gudavale Lift Scheme and Koyna-Krishna Lift Irrigation Scheme of Maharashtra and also for lift irrigation under Malaprabha Project for the reasons given at pages 638-643, 674-675 and 731-733 of Volume II of the Report. The reasons for not allowing D · the demand for Bhima Lift Inigation Project are given at pages 737-738 of Vol.II of the Report. We have considered the Upper Krishna Project at pages 714-719 of Vol.II of the Report. The parties agreed to protect the utilisation of 103 T.M.C. for the Project. We allowed the additional demand for this Project to the extent mentioned in the Report after taking into account the available water supply and the needs of the other States. Subject to our observations made elsewhere in this Report, regarding the Upper Krishna Project, we see no ground for any further clarification.

However, we may add that this Project is to be executed by stages and if it is found in future that more water. is available for distribution between the three Stdtes, the claim of Kamataka for allocating more water for this Pmject may receive favourable considiration at the hands of the Tribunal or authority reviewing the matter. Almatti Dam is under construction and may serve as carry-over reservoir (Empha- sis supplied). G It thus appears that the claim of Karnataka for allocating more water for Upper Krishna Project has b~en expressly negated and Almatti Dam has been taken to serve only as a carry-over reservoir obviously for irrigation purposes and it is on this score that Mr. Ganguly contended that the three riparian States being bound by the mandate of the Tribunal as contained in its decision, as H

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A notified in terms of Section 6 of the Act of 1956 cannot possibly act contra the decision of the Tribunal. Admittedly, the height of Almatti was at FRL 509. Under the final award or the decision of the Tribunal, the total utilisation permitted under all the three components of Upper Krishna Pr~ject i.e.Hippargi, Almatti and Narayanpur was 155 + 5 = 160 TMC and no irrigation was permitted under Almatti Canal since the Tribunal expressly observed in B Exhibit P.K.II in answer to a clarification from the State of Maharashtra: "We may also point out that we did not allow any demand for water in respect of Almatti Canal." The further demand of the State of Kamataka for the Upper Krishna Project has also been negated by the Tribunal upon recording that in the event of futiire availability of water for distribution between the three c States, the claim of the Kamataka ought to be considered while reviewing the matter as noticed hereinbefore in this judgment. Mr. Ganguly' s stress has been that the facturn of Almatti Dam being a carry-over reservoir does not thus require any further increase in height and thus seems to have some substance having regard to available water. Incidentally, be it noted here that this Court at an early stage of proceeding did direct maintenance of status quo as regards D the height of Almatti Dam though, however, permitted construction of the side poles but without placement of any gate so as not to obstruct the flow of water. Facts disclose that the side poles have already been erected and what is required is to place the gate which can be effected admittedly without much loss of time. E It is on this perspective that Mr. Ganguly contended that the rights of the parties being adjudicated by the Tribunal having due authorisation of law cannot be interfered with, against the interests of another riparian State and in the event of there being an attempt to do so, this Court in exercise of its p jurisdiction under Article 131 of the Constitution ought to grant a mandatory injunction restraining the State of Kamataka from raising the height of Almatti Dam to FRL 524 mt. as against the existing FRL 509 mt. While it is true that the rights of the parties have been adjudicated by the properly constituted statutory Tribunal and the decision of the Tribunal has a binding effect in terms of Section 6 of the Act of 1956 but the issue arises as to whether there exist any right as such, so far as the Plaintiff is concerned in the matter of obtaining an· order of injunction - what is the infraction of its right (State of Andhra Pradesh). Admittedly, Scheme A requires a review in terms of the order of the Tribunal by May, 2000 and this requirement if read with the decision as above in O.S. (I) of 1997, the rights of the riparian owners, can not but be said to be still in the stage of fluidity rather than settled and confirmed and

STATE OF KARNATAKA AND ORS. v. STATE OF A.P. [BANERJEE, J.] 46_? .grant of an order of injunction at this stage would neither be fair nor reasonable in the contextual facts - though however the submissions of Mr. Ganguly does not seem to be illogical, but having regard to the present contextual situation, I am unable to agree with the submissions in favour of the grant of injunction - the situation is not conclusive for the grant, neither the grant is warranted at this juncture. Generally speaking, however, be it noted that the issue of grant of injunction is to be looked from the point of view as to whether on refusal of the injunction, the Plaintiff would suffer irreparable loss of iD:1ury keeping in view the strength of the parties' case. Balance of convenien:be or inconvenience is also another requirement but no fixed rules or notions ought to be had in the matter of grant of injunction and the relief being always flexible depending upon the facts and circumstances c of each case. The justice of the situation ought to be the guiding factor (vide the decision of this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd, [1999] 7 SCC P.1: myself being a party to the judgment). In the contextual facts, therefore, question of grant of any order of injunction in my view would not arise. D As noticed above, the height of Almatti Dam is the principal issue in O.S.No.2 of 1997: the question therefore arises as to whether non-acceptance of the case of the Plaintiff would mean and imply acceptance of th~ prayer of the Defendant No. I to erect Almatti Dam at an height of FRL 524 mt - the answer however, cannot but be in the negative; more so by reason of the E surrounding circumstances. The contentions of the two riparian owners and the specific language of Article 131 of the Constitution and having regard to the assertion of the State of Karnataka of its right to control its supply of water in the manner as it deems fit, interference with the proposal shall have to be had to sub-serve the ends of justice. But before proceeding further in this F )tl matter, it would be useful to refer to one of the decisions of this Court in the case of State of Karnataka v. Union of India (1978 (2) SCR 1) wherein Bhagwati, J. observed:

"We cannot construe Article 131 as confined to cases where the dispute relates to the existence or extent of the legal right of the G plaintiff, for to do so, would be to read words in the article which are not there. It seems that because the mode of proceeding provided in Part III of the Supreme Court Rules for bringing a dispute before the Supreme Court under Article 131 is a suit, that we are unconsciously influenced to import the notion of 'cause of action', which is germane H

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A in: a suit, in the interpretation of Article 131 and to read this article as limited only to cases where some legal right of the plaintiff is infringed and consequently, it has a 'cause of action' against the defendant. But it must be remembered that there is no reference to a suit or 'cause of action' in Article 131 and that article confers jurisdiction on the Supreme Court with reference to the character of B the dispute which may be brought before it for adjudication. The requirement of 'cause of action', which is so necessary in a suit, cannot, therefore, be imported while construing the scope and ambit of Article 131. It is no doubt true that the judgment delivered by me in the State of Rajasthan v. Union of India proceeds on the assumption c that a suit under Article 131 can be instituted only if some right of the plaintiff is infringed, but there was no proper discussion of this question in the course of the arguments in tl1at case and on fuller consideration, I think that no such restriction can be imported in the construction of Alticle 131 so as to narrow down the ambit and coverage of that article. The only requirement necessary for attracting the applicability of Article 131 is that the dispute must be one involving any question "on which the existence or extent of a legal right" depends, irrespective whether the legal right is claimed by one , party or the other and it is not necessary that some legal right of the plaintiff should be infringed before a suit can be brought under that article. The plaintiff must of course be a party to the dispute and obviously it cannot be a party to the dispute unless it is affected by it."

Chandrachud, J. also in the same judgment and in the same vein observed: F "I consider that the Constitution has purposefully conferred on this Court a jurisdiction which is untrammeled by considerations which fetter the jurisdiction of a court of first instance, which entertains and tries suits of a civil nature. The very nature of the disputes arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits."

In my opinion, the view expressed above· amply represents the true meaning and purport of Article 131 of the Constitution. It is a constitutional conferment of jurisdiction in regard to certain specified matters which is required to be decided by the Apex Court by reason of the nature of the

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..,,. differences and disputes. This conferment of jurisdiction is under special circumstances and for special reasons having the concept of justice being the predominant factor behind the inclusion of such an Article in the Constitution. Ordinary rules or procedure cannot be made applicable in such special circumstances. On the wake of the above and by reason of the decision of this Court to do complete justice between the parties, more so having regard to the powers conferred on to this Court under Article 142 of the Constitution, this Court in my view has the power, authority and jurisdiction to pass any order . or issue any direction as may be found necessary for the ends of justice and I need not dilate on the same since the law is well settled on that score. It will however be useful to note down certain factual events in this perspective and at this juncture. C

At the instance of the Prime Minister of India, four Chief Ministers were requested to intervene and consider the proposal of the State of Karnataka ~ to have the Almatti Dam up to the height of FRL 524 mt. The four Chief Ministers in their turn, however, appointed by consent of each other, an expert D Committee which has observed that question of the height being raised to FRL 524 mt. at this stage would not arise and as a matter of fact Dam height upto FRL 519 mt. would otherwise be conducive without offending any of the realities of the situation. Admittedly, Almatti is for storage purposes and since as per the existing arrangement, allocations are limited and restricted, question of further storage would not arise. This aspect of the matter has been E highlighted by Brother Pattanaik, as also by Brother Majmudar, in his concurrent judgment and as such I need not dilate excepting recording that the apprehension expressed by Shri Andhyarujina as regards the flooding of the area in the event of the height of the Almatti Dam is raised or increased require serious consideration of the matter by the experts. The apprehension of F Mr. Ganguly appearing in support of the Plaintiff State of Andhra Pradesh also very strenuously contended that in the event of an increase in dam height, no water would be available for the Kharif Crop to be raised, is also of some substance by reason of the express stand of the State of Karnataka that the deficiency of water supply in the month of August, September and October can be met immediately thereafter. It is this admitted case that the Kharif G crop would be a total wash out in the event no water is available in July, August and September: Storage facility at Nagarjuna Sagar, Sri Sailem and Kalahasti would not really alleviate the situation. Earlier in this judgment I have stated that peculiarities are the characters of the rivers in this country - whereas one is in spate causing a tremendous amount of flood damage, the H

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A other is totally dry causing an equal amount of dry famine season and on the wake of the aforesaid, the apprehensions expressed by both the States of Maharashtra and Andhra Pradesh do not seem to be baseless and as such the same needs serious consideration by the concerned Authority or Authorities at the time of re-consideration of Scheme 'A' in terms of our judgment in O.S. No.l of 1997. B In that view of the matter I record my concurrence with the findings of Brother Pattanaik, that by reason of the report of the experts, the Almati Dam and its upper limit can be placed at FRL 519 subject however, to clearances from appropriate authority or authorities as required under the law. I am also c in concurrence with Brother Pattanaik, that question of raising the ultimate height at Almatti could be gone into by the Tribunal upon assessment of the situation as placed by the riparian States and upon assessment of the appre- hension of submergence and the apprehension of loss of Kharif crop as well. ')r· The Tribunal is directed to look into the matter if and when occasion arises D as regards the allocation of water in River Krishna Basin totally uninfluenced by the observations made by the earlier Tribunal's view by reason of long lapse of time and the availability of modem technology. The suit (O.S. 2 of 1997) stands disposed of accordingly. No order as to costs.

E SETIII, J. While agreeing with the main judgments of brother Pattainaik, J. in Original suits Nos. 1 and 2 of 1997 and supplementary concurring judgment of brother Majmudar, J. in Original Suit No. 2 of 1997. I am persuaded to place on record some of my observations in addition, which have been necessitated on account of the unreasonable, unrealistic, motivated and contradictory attitudes adopted and changed from time to time by the riparian F States of Krishna river basin, oviously under local pressures and political compulsions. It is hoped and expected from responsibl~ representative govern- ments of the States concerned that they would give due weight to the tremendous work done by the Krishna Water Disputes Tribunal and realise their constitutional obligations to the noation, being important and mighty G Constitutents of the Federation, the Union of India, keeping in view our observations in the judgment.

Water is a unique gift of nature which has made the planet earth habitable. Life can not be sustained without water. In the National Water H Policy issued by the Government of India in 1987, it was declared that water

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...,.. - is a prime natural resource, a basic human need and a precious national asset. A Water, like air, is the essence of human survival. The history of water availability and its user is tied up with the history of biologically evolution in all civilizations. It will not be wrong to say that not only the life started in water but rather water is life itself. Lt is essential for mankind, aminals, environment, flora and fauna. There is no denial of the fact that in the ancient times water played an ampm:tant role in the origin, development and growth B of civilization all over the globe. Water is an imporatant factor in the economic development of the countries whi~h ultimately affects the social and human relations beween the habitants. Planned development and proper utilization of water resources can serve both as a cause as well as an effect of the prosperity of a nation. Water on earth is available in the form of frozen snow, rivers, c lakes, springs, water ways, water falls and aqueducts, etc.

In this galaxy and the environment surrounding the earth, its hydro- sphere segment mostly consists of water in the shape of oceans. Out of the total available water on earth 97 .J% water is such which can not be utilised for the benefit of the humanity. Only 2.07% water is available for consumption and mankind's utilization. Out of this consumable water 30% is used for irrigation, 7% for domestic and 12% for industrial purposes. Rest of the water goes water on account of mismanagement and the lack of facilities of better utilisation. Whereas water is scarce and limited, its users are numerous and ever increasing. With the development in the living standards of the people, the consumption of the water is increasing everyday without there being by corresponding increase in its total availability. According to an estimate in World Book Encyclopaedia, on an average a person needs about 60,600 ltrs. of water during his life time and in industrial countries like U.S.A. each person presently is using about 260 litrs. of water every day. The consumption in our country is however much less. On account of the advancement in the technology and of civilization, water needs are· increasing. In their quest to have comfortable life, people want more and more water. Facilities like ACs., garbage disposals, automatic washers and modem bathrooms, earlier consid- ered as luxury are now deemed as necessities of life of a large human population. G

India is one the most fortunate coootries endowed with enviable wealth of water resources. The average annual precipitation in this country is higher than that of any other continent in the world with the exception of South America However, on accooot of meagre resources and lack of developmental H

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A facilities, India uses only l/lOth of the precipitation with it receives annually •--.It( with the result that the rest of water goes waste into the sea. The sources of water in this country are either the frozen snow which melts in summer or accumulated water in dams dming monsoon seasons which is utilised off that season. In the absence of proper water source management, great population of the people suffer every year on account of either the floods or droughts. B Geographically, India has more than 20 major river basins. Some of those, such as Indus, Chenab, Ganga, Brahamputra and Teestha, though originating from and flowing in India are yet in effect and essence, international rivers as they pass through the territories of other sovereign states.

c Despite independence for more than half a century, the country has not been in a position to construct more than 3000 large and small dams with the result that most of the water otherwise available in the country remains unutilised. Almost in all countries of the world, efforts are being made to regula~e the user of water resources alongwith the user of the land resources. Water management is required to be viewed in the light of the land manage- D ment. The l_aw relating to water rights has undergone a sea change all over the world. International and inter-State disputes regarding the user of water are sought to be settled by recourse to the p~ocess of law in place of the old doctrine or settlemen "by war or diplomacy". Water under all prevalent systems of la'w has been declared to be the property of the public and dedicated ..... E to their. use, subject to appropriation and limitations as may be prescribed either under law or by settlement or by adjudication. The disputes relating to water management, its development and its distribution are to be considered not from rigid technical or legal angle but from the pre-eminenetly important humanitarian point of view as water wealth admittedly forms a focal point and F basis for the biological essence and assistance of socio economic progress and well being of human folk of all the countries. In resolution of the disputes relating to development, management and distribution of the water reliance has to be placed upon the long usage, customs, prevalent practices, rules, regulation Acts and judicial decisions. There is no dispute that under the constitutional scheme in our country right to water is a right to life and thus G a fundamental tight. In India the importance of water is recognised under the constitution as is evident from Article 252, 7th Schedule List II Entry 17, List I, Entry 56, and Statutes like Inter-State Water Disputes Act, 1956 and Rivers Boards Act, 1956.

H The controversly, in the present proceedings, amongst the States of

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Maharashtra, Karnataka and Andhra Pradesh is with respect to the utilisation A of the water of Krishna River which is the second largest river in the Pennisular India. The river has a total length of 870 miles originating from Western Ghats near Mahabaleshwar and tlows throught parts of the aforesaid three States. The Krishna River Basin has an area of about on lakh sq.miles which directly affects about 39 million inhabitants of the three States. The B water of this river has been the bone of contention between the riparian States for over a period of one and a half century. It was only in 1955 when the Krishna Delta Canal System was commenced to properly regulate the user of water of this river. After re-origanisation of the States in November, 1956, the Central Water and Power Commission drew up scheme for re-allocation of Krishna Waters which was not accepted by the concerned States with the result c that an Inter-State Conference ws held in September, 1960 but as no settlement could be arrived at, the matter was ultimately referred to the Tribunal for adjudication which submitted its reports Exhibits PK 1 and PK 2 which have been elaborately dealt with in the main judgment. D From April, 1969, alongwith the undefined huge water, national assets being the public money has flown through the river into the Bay of Bengal on account of pending litigation. Despite huge expenditure incurred and momenteous job performed by the Tribunal, the most acceptable solution regarding distributing of water not accepted by the concerned· States on pretexts and under the wrangles of technicalities. Even the States initially E accepting the reports of the Tribunal have been changing their stands which resulted in keeping the m~tter alive, notwithstanding the consequential losses but obviously for the concerned States' convenience primarily actuated by political considerations and changes but apparently for proclaimed interests of their inhabitants. F The dismissal and disposal of the suits filed by the States of Kamataka and Andhra Pradesh and rejection of the plea raised by Maharashtra in its additional written statement would not settle the dispute or solve the problem but unfortunately will become the basis of new litigation between the States which is surely likely to adversely affect their inhabitants resulting in G the wastages of the waters of Krishna which otherwise has been found in abundance. It is hoped that as and when action is initiated upon our judgment, the Tribunal or the authority appointed in consequence thereof, fot · · the purposes shall expedite the matter and ensure that the most precious gift of nature - water and the public money is not wasted in uncalled for, avoidable H

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and imagimary litigation. It is not disputed that in the absence of the Reservoir . A System under Scheme B as formulated by the Tribunal, a lot of water of Krishna is wasted and permitted to submerge in the Bay of Bengal. Let better sense pre'!ail upon all concerned to ensure the safety of the river and proper utilisation of its water for the benefit of inhabitants of the Krishna River Basin. B S.M. Suit No. 1197 dismissed and Suit No. 2/97 disposed of.