THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE OF TAMIL NADU BY ITS CHIEF SECRETARY & ORS.

A from its execution, minutely noted that undisputedly there had been no re-consideration by the two States on the question of modification or addition in respect of the different terms and conditions as mentioned therein, after the said period. It referred as well to the plea of the State of Tamil Nadu that as per clause 10(xi), the reconsideration, if any, was limited only to the stipulations in clauses 10(iv) to 10(viii) and not qua B clause 10(ii) which enjoined the Mysore Government to regulate the discharge to and from the Krishna Raja Sagara reservoir strictly in accordance with the Rules of Regulation set for in Annexure I thereto. The Tribunal, however, on a scrutiny of the relevant clauses and on a juxtaposition thereof, negated the said plea and held that clause 10(ii) C was inter-linked with clauses 10(iv) to clause 10(viii) and could not be dissociated from each other. In arriving at this determination, the Tribunal noted the areas of irrigation permitted to be undertaken by the two Governments with the liberty to extend the same subject to the ceiling as mentioned and laid emphasis on the enjoinments contained in clause 10(vii) in particular and held that if after 50 years in terms of clause D 10(xi), the limitation and arrangements specified in clause 10(iv) to clause 10(viii) were to be considered, then the limitations prescribed by the rules of regulation for Krishna Raja Sagara reservoir forming Annexure 1 of the Agreement and alluded to in clause 10(vii) could not be excluded from the purview of such reconsideration. The Tribunal thought that this is more so as in terms of clause 10(vii), the Mysore Government had agreed that extension of irrigation in its territories as specified in clause (iv) would be carried out only by means of reservoirs constructed on the River Cauvery and in its tributaries mentioned in Schedule A of the 1892 Agreement; such reservoirs were to be of an effective capacity of 45,000 million cubic ft. in aggregate; impounding therein was to be so regulated as not to make any material diminution in supply recorded by the gauge accepted in the Rules of Regulation for the Krishna Raja Sagara reservoir forming Annexure I to the Agreement and the rules for working such reservoirs were to be so framed as to reduce any loss during the impounding period within 5%, by adoption of suitable proportion factors, impounding formula or such other means as was to be settled. The Tribunal referred to the notes of arguments produced on behalf of the State of Tamil Nadu before it which indicated that the average inflow into Mettur for 38 years from 1934 - 1935 was 377.¹ TMC serviced by three sources with the following break ups: H

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137Copy pinpoint137. It observed that if reconsideration was to be limited only to the arrangement as set out in clauses 10(iv) to (viii), then the logical C consequence would be that in the event of any modification, it would not be possible for the State of Karnataka to comply with the requirement of clause 10(ii) read with Rules 7 and 10 of the Rules of Regulation only on the basis of discharge from Krishna Raja Sagara reservoir. The Tribunal, thus, held that whenever a dispute was raised, it was to be examined in the light of the conditions prescribed not only in clauses 10 D (iv) to 10 (viii) but also in the light of the obligation and mandate provided on the part of the State of Mysore/Karnataka to follow the Rules of Regulation for Krishna Raja Sagara reservoir as contained in clause 10(ii).

138Copy pinpoint138. On the plea that the 1924 Agreement, in the absence of reconsideration, as envisaged in clause 10(xi), had expired, an eventuality E noticed by this Court in In Re: Presidential Reference (Cauvery Water Disputes Tribunal) (supra) wherein the validity of the Karnataka Cauvery Basin Irrigation Protection Ordinance 1991 had been laid for scrutiny in a reference under Article 143 of the Constitution, the Tribunal apart from observing that the question of subsistence or otherwise of the F Agreement was not an issue before this Court in the said reference, also marked that in the complaint before it under adjudication, the principal grievance of the State of Tamil Nadu was contravention and violation of the terms thereof which, according to it, remained in force even after the expiry of 50 years from the execution thereof. It also referred, the initiatives and endeavours of the two States in this regard with the G intervention of the Union Minister for Irrigation and Power and the participation of the Chief Ministers of Tamil Nadu, Mysore and Kerala along with others for an amicable resolution of the lingering differences which, inter alia, contemplated a fact finding Committee of Engineers, agricultural experts, retired Judges, etc. to collect data pertaining to H

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A Cauvery waters, its utilization and irrigation practices and to examine the adequacy of the supplies or excessive use of water for irrigation purposes to be placed for further discussions to arrive at an agreed allocation of waters for the respective States. The Tribunal underlined that nowhere in the discussions, it had been the stand on behalf of the State of Mysore that after 50 years of the execution of the Agreement, B it would expire and as such there would be no question of reviewing the terms thereof.

139Copy pinpoint139. The plea of the State of Mysore that the proviso to clause 10(xiv) per se spelt the automatic termination of the whole of the Agreement after the expiry of 50 years, was negatived in view of the interplay of clauses 10 (xiv) and (xi).

140Copy pinpoint140. The Tribunal, as we find, has accepted the plea and stand of the State of Tamil Nadu that the 1924 Agreement did not expire in 1974.

141Copy pinpoint141. It is necessary to reflect on the finding of the Tribunal on this score. The Tribunal noticed the rival orientations of the two States with regard to the status of the Agreement on the expiry of 50 years from the date of its execution. It recorded the stand of the State of Karnataka that the agreement expired after the expiry of the period of 50 years from the date of its execution so much so that none of the clauses therein were enforceable in respect of discharges to be made from Krishna E Raja Sagara and other reservoirs of the tributaries of Cauvery which were under construction in Karnataka. It took note of the contrary plea of Tamil Nadu that the agreement was permanent in nature and that all the terms therein were binding on Mysore, that is on the State of Karnataka in respect of the operation of Krishna Raja Sagara and other reservoirs constructed on the tributaries of river Cauvery. The Tribunal recorded the plea of the State of Karnataka that not only the Agreement of 1924 expired in the year 1974 but also the terms of the Agreement dated 1892 as well as of 1924 were arbitrary in nature and inequitable between the State of Madras which was then a Presidency State and as such part of the British Territory and the State of Mysore which was then under the Ruler. Tracing the history of the two agreements and that of 1924 in particular, the Tribunal was of the view that the latter agreement was entered into only after the terms thereof had been fully examined by the two States with special attention to the aspect as to whether the new irrigation reservoir was likely to diminish the flow of river Cauvery to the territory of Madras State in any manner. In the

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context of the cavil of the State of Karnataka that the then State of A Mysore had to enter into both the agreements under some compulsions and that the stringent stipulations contained therein, amongst others, defining the limits under which no irrigation works were to be constructed by Mysore without the previous consent of Madras and that the rigorous restrictions in respect of impounding of water of Krishna Raja Sagara B as well as other reservoirs to be constructed on the tributaries of river Cauvery with the rider of maintaining a minimum flow of Cauvery at the Upper Anicut so as to maintain a height of water level ranging between 3 ft. to 7 ½ ft. during January to June did spell great hardship, the Tribunal delved into the time phase chapter pertaining to the Treaty of 1799 entered into between the then East India Company and the Maharaja of Mysore C whereupon the possession of the Mysore State was handed over to the then Maharaja. It marked, inter alia, the undertaking of the then Maharaja of Mysore that he would abstain from any interference in the affairs of any state in alliance with the English Company Bahadur and would not enter into any communication or correspondence with any D foreign State without the previous knowledge or sanction of any English Company Bahadur. The Tribunal noted as well the similar restrictions in the Instrument of Transfer of 1881, apart from preserving in the Governor General in Council, several powers including the one to resume possession of the said territories and to assume direct administration thereof.

142Copy pinpoint142. While noticing the plea of Karnataka that after the Treaty of E 1799, with the advent of East India Company as well, the administration of Mysore had been taken away by it, and the possession of the State was eventually handed over to the then Maharaja on 25.03.1881, and that thus the British Crown was apparently exercising its paramount power over the ruling State of Mysore for which, as a feudatory State, it was really under a compulsion to subject itself to the constraints prescribed under the Agreement, the Tribunal observed that International Agreements as well as Inter-state Agreements cannot be examined at a later stage on the touchstone of whether the terms were just and proper, keeping the interest of both the Nations or the States at the time of execution thereof. While acknowledging that sometimes, compulsions existing at the time of execution of the Agreements may be factors for adopting the spirit of give and take on the part of one Nation or the State, it concluded qua the Agreements of 1892 and 1924 that those could not be challenged as being done after a lapse of more than 100 years so far as the Agreement of the year 1892 is concerned and 80 H

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A years qua the Agreement of 1924 by the State of Karnataka being the successor of the interest of the State of Mysore. The Tribunal recorded that this was more so as the State of Mysore/Karnataka had complied with the terms of the Agreements scrupulously and religiously up to 1974 and the dispute surfaced only after the expiry of the period of 50 years as contemplated in Clause 10(xi) of the Agreement of 1924. It B remarked as well that on the basis of the Agreement of 1924, the State of Mysore/Karnataka not only constructed the Krishna Raja Sagara Project but also other reservoirs on the tributaries of Cauvery within its territories for a total capacity of 45,000 million cubic ft. (45 TMC) and thereby derived the benefit of construction of those reservoirs on the river Cauvery and its tributaries and, thus, it cannot be allowed to repudiate the agreements on the principle of “qui approbat non reprobat” (one who approbates cannot reprobate). The Tribunal construed that though an agreement can be challenged in terms of Section 19A of the Indian Contract Act, yet the party concerned had to satisfy the Court at the appropriate stage that its consent was obtained by coercion, fraud, misrepresentation or undue influence and that noticeably, during the period of more than 50 years since 18.02.1924, after which according to the State of Karnataka, the said Agreement had come to an end, it did never allege before any court of law that the said Agreement was either voidable or that it was not bound by it for any of the infirmities as envisaged in E Sections 19 and 19A of the Indian Contract Act. It recalled in reinforcement of this view the backdrop of the Agreement which evinced that the competent authorities on behalf of both the States, after proper application of mind and discussion, had endorsed and executed both these documents and, thus, these could not be ignored and discarded being not void in the eye of law. F

143Copy pinpoint143. The aforesaid finding of the Tribunal is seriously found fault with by Mr. Nariman on the ground that the Tribunal should have proceeded on the basis of the language employed in the instrument. Regard being had to the said submission, we think it appropriate to reproduce Clause 10(xi), though it has already been extracted G hereinbefore:- “10 (xi) The Mysore Government and the Madras Government further agree that the limitations and arrangements embodied in clauses (iv) to (viii) supra shall at the expiry of fifty years from the date of the execution of these presents, be open to H

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reconsideration in the light of the experience gained and of an A examination of the possibilities of the further extension of irrigation within the territories of the respective Governments and to such modifications and additions as may be mutually agreed upon as the result of such reconsideration.” [Underlining is ours] B

144Copy pinpoint144. The said clause requires studied scrutiny. It stipulates that both the States agreed that the limitations and arrangements embodied in Clauses (iv) to (viii) shall, at the expiry of 50 years from the date of execution, be open to reconsideration in the light of the experience gained and upon examination of the possibilities of further extension of irrigation within the territories of the respective States be subject to such modification and additions as may be mutually agreed upon as the result of such reconsideration. The submission of Mr. Nariman and Mr. Katarki appearing for the State of Karnataka is that the postulates in the clause have to be read as a whole and not in a truncated sense. According to them, the stipulations in Clauses (iv) to (viii) would be open for reconsideration taking into stock certain facts and circumstances and only thereafter, the modification and additions can be mutually agreed to. Emphasis is laid on the word ‘reconsideration’. It is also argued by them that the stipulation in Clause (xi) cannot be restricted to Clauses (iv) to (viii) as those clauses constitute the spine of the Agreement. It is their argument that the other clauses in the Agreement are so interdependent with the mentioned clauses that the others cannot be excluded or eschewed. The intention of the parties is quite clear that the experience has to be seen in 50 years and thereafter, the whole thing is to be called for reconsideration and reconsideration cannot be unilateral or, for that matter, automatic. F

145Copy pinpoint145. Controverting the same, it is urged by Mr. Naphade and Mr. Dwivedi, learned senior counsel for the State of Tamil Nadu, that the clause applies in part essentially what has been mentioned therein and cannot cover the whole agreement. They emphasized on the words that the life of the Agreement is not limited to 50 years but only meant for G reconsideration for the purpose of reexamination and that does not put an end to the Agreement.

146Copy pinpoint146. Having perused the clause in entirety and considering the words, namely, ‘reconsideration’, mutually agreed upon’ and ‘be open to’, it is clear that certain clauses in the Agreement had a restricted life span. H

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147Copy pinpoint147. We are inclined to think so inasmuch as the relevant clauses which are open to reconsideration are absolutely essential parts of the contract and it is extremely difficult to place appropriate construction on the contract without them. The clauses in the contract do not indicate permanency but, on the contrary, indicate fixed term and that is how we intend to construe the same. The continuance of contract, as we find, was further a subjective consideration and merely agreed upon and, therefore, to hold that it continued solely because of the experience gathered would not be appropriate and it would be contrary to the concept of understanding the clauses in a contract to give effect to its continuance. The continuance after 50 years was dependent on certain aspects and, therefore, we have no hesitation in holding that the agreement expired after 50 years. The submission on behalf of the State of Tamil Nadu is that the obligations of the contract continued but, in this context, it is worth noting that the parties to the agreement had entered into correspondence with the Central Government agitating their grievances and they met at the various levels to discuss and to arrive at an acceptable arrangement. That not having been accepted, the complaint was lodged. Taking into consideration the entire conspectus of facts and circumstances, we hold that the agreement expired after 50 years in the year 1974. M. Did the complaint not require any adjudication? E

148Copy pinpoint148. It is submitted by Mr. Nariman that the manner in which the complaint had been lodged and a request had been made for referring the dispute that had arisen between the States of Karnataka and Tamil Nadu was not statutorily entertainable. According to him, the foundation of the complaint is the 1892 and 1924 Agreements and once they are F treated to have expired, in the absence of any other aspect being stated in the complaint, it does not call for an adjudication by the Tribunal despite the matter having been referred to the Tribunal for adjudication. To bolster the said stand, he has relied upon the language employed in Section 3 of the 1956 Act. Section 3 of the 1956 Act reads as follows:- G “3. Complaints by State Governments as to water disputes.—If it 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 H prejudicially by—

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(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or (b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a Tribunal for adjudication.” C

149Copy pinpoint149. Relying on the said provision, it is urged by Mr. Nariman that there is no assertion with regard to either the State of Tamil Nadu or its inhabitants being prejudicially affected in any other manner except the agreement and, then, the conditions precedent as postulated in clauses (a), (b) and (c) of Section 3 are not met with. He has referred to issues D 8, 10, 40 and 43 by the Tribunal on prejudicial affectation and stated that the Tribunal has not recorded any finding that the State of Tamil Nadu has been prejudicially affected within the sphere of Section 3. On the contrary, it has held that the issue regarding prescriptive right of Madras has become academic and the injury caused to each State at one stage or the other by the conduct of the other State has become a matter of history and it is not easy to assess any injury in an irrigation dispute. Learned senior counsel would further submit that the State of Tamil Nadu did not plead for a claim to any right which is conferred on it by the two agreements either in its complaint or on the statement of case before the Tribunal. The complaint deserves to be dismissed in the absence of proven injury. Mr. Naphade and Mr. Dwivedi, learned senior counsel being assisted by Mr. G. Umapathy, learned counsel, in their turn, would contend with vehemence that such a contention at this stage is absolutely specious and should not engage the attention of this Court even for a moment. They would submit that the series of meetings and the correspondence that had commenced in the beginning of the 70s of the last century would speak eloquently about the inhabitants being prejudicially affected and further the various issues raised clearly exposit the grievances of the inhabitants of the State of Tamil Nadu. Additionally, it is contended by them that even if a finding is returned that the agreements have expired, rights had been created under the agreements and till they H

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A remain in force and also thereafter till the date of reference and more so when such a plea was not raised when reference was made to this Court under Article 143 of the Constitution, the said plea should be negatived.

150Copy pinpoint150. The aforesaid submission advanced by the State of Karnataka B should not detain us for long. On a perusal of the complaint, it does not contain the words “prejudicially affected’ but the antecedents of the complaint, the view of the Central Government while referring water dispute and the expression of opinion of this Court In Re: Presidential Reference (Cauvery Water Disputes Tribunal) (supra). In the backdrop of the language of the 1956 Act, the expiration by the efflux of time and C the role of this Court, we are not inclined to entertain such a plea. We must say without any hesitation that it may, in the first blush, have the potentiality to invite the intellectual interaction but the same fails to gain significance when one perceives the controversy from a broader perspective and the various orders passed from time to time by the D Tribunal and by this Court. Therefore, the matter deserves to be adjudicated on merits. N. The approach adopted by the Tribunal post 1974 and correctness of the same

151Copy pinpoint151. On a perusal of the award, it appears that the Tribunal, after E coming to hold that the 1974 agreement is valid which we have not accepted, noted the submissions of the State of Karnataka, Tamil Nadu and Kerala and Union Territory of Puducherry. The State of Karnataka, on 10.07.2002, has made the following submissions before the Tribunal which is to the following effect:- F “60. The State of Karnataka in its Note KAR 3, page 10, filed on 10.07.2002, has taken the stand that “any future determination post-1974 would have to be made on the following basis:- (a) how much water is needed to irrigate the areas to which Tamil Nadu and Karnataka are entitled, under the Agreement; G and (b) how should the surplus be divided and distributed for the planned areas of Karnataka and for the areas cultivated by Tamil Nadu (outside the Agreement of 1924). It is respectfully submitted that all areas contemplated to be irrigated under the Agreement H

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of 1924 are concerned – whether by Tamil Nadu or by Karnataka, A they have first to be taken into account as committed uses or existing uses. The remaining areas should be considered on the principles of equitable apportionment that are well settled and on the evidence led before this Hon’ble Tribunal.”

152Copy pinpoint152. The Tribunal, which had taken the view that the Agreements B of 1892 and 1924 are valid and enforceable, alternatively suggested the apportionment of Cauvery waters on the following basis:- “(i) Protection of irrigated areas as existing prior to 1924 both in Karnataka as well as Tamil Nadu. (ii) The development of irrigation as contemplated in the 1924 C agreement but actually developed before 1974. (iii) All other development to be considered as per different priorities suggested by them, indicated later on in the report.”

153Copy pinpoint153. After so noting, the Tribunal opined that before the D requirement of water is examined, the two States have to determine the areas which have been adopted by the two States. The areas where the States of Karnataka, Tamil Nadu and Kerala and Union Territory of Puducherry have to be served by the Cauvery System for irrigation are required to be considered. The principles for consideration were formulated by the Tribunal which are as follows:- E “(i) Areas which were developed before the agreement of the year 1924 (ii) Areas which have been contemplated for development in terms of the agreement of the year 1924. F (iii) Areas which have been developed outside the agreement from 1924 upto 2.6.1990, the date of the constitution of the Tribunal. (i.e. from 1924 to 1990) (iv) Areas which may be allowed to be irrigated on the principle of equitable apportionment.” G

154Copy pinpoint154. On a perusal of the aforesaid, it is noticed that the Tribunal has taken the cut-off date as 02.06.1990, the date on which the reference/ complaint was made. In the course of the hearing, learned counsel for all the parties accepted that they do not have any kind of quarrel over the determination by the said date. H

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155Copy pinpoint155. Having stated thus, we have to analyze the approach adopted by the Tribunal on the basis of the same. Prior to that it is necessary to reflect on what the Court has said in the Presidential Reference. At this stage, we must note with profit that the Court had noted that the 1924 Agreement had expired. After the Court held that the agreement had expired and further that the legislation passed by the State of Karnataka B was ultra vires, it proceeded to state thus:- “71. It will be pertinent at this stage also to note the true legal position about the inter-State river water and the rights of the riparian States to the same. In State of Kansas v. State of Colorado the Supreme Court of the United States has in this connection observed as follows: “One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none … the action of one State reaches, through the agency of natural laws, into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them and this Court is called upon to settle that dispute in such a way as will recognise the equal rights of both and at the same time establish justice between them. The dispute is of a justiciable nature to be adjudicated by the Tribunal and is not a matter for legislative jurisdiction of one State …. ‘The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down ….’ The right to the use of flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and

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exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable enjoyment of the same gift of Providence. It is, therefore, only for an abstraction and deprivation of this common benefit, or for an unreasonable and unauthorised use of it that an action will lie.”

72. Though the waters of an inter-State river pass through the territories of the riparian States such waters cannot be said to be located in any one State. They are in a state of flow and no State can claim exclusive ownership of such waters so as to deprive the other States of their equitable share. Hence in respect of such waters, no state can effectively legislate for the use of such waters since its legislative power does not extend beyond its territories. It is further an acknowledged principle of distribution and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each D State. What the equitable share will be will depend upon the facts of each case. It is against the background of these principles and the provisions of law we have already discussed that we have to examine the respective contentions of the parties.”

156Copy pinpoint156. Though the aforesaid paragraphs were said in the context of E the legislative power, yet it meaningfully stated the legal position about the Inter-State River Water and rights of the riparian States in the same and further that the distribution and allocation of waters between the riparian States has to be done on the basis of equitable share of each State which will depend upon how the quantum of equitable share is determined as per the facts of the case. F

157Copy pinpoint157. The Tribunal referred to the decisions in State of Wyoming v. State of Colorado²⁵, State of Nebraska v. State of Wyoming26, the report of the Krishna Water Disputes Tribunal, Chapter XII, page 98 under the heading of “Protection of Existing Uses”, the report of Narmada Water Disputes Tribunal, the Report of Godavari Water G Disputes Tribunal, the Report of the Ravi and Beas Waters Tribunal and noted thus:-

25 259 US 419 (1922) 26 325 US 589 (1945) H

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A “16. There are three different views in respect of the claims by different riparian States regarding sharing of the water of an inter-State river or a river passing from one nation to another: (i) The first view proceeds on what is called the doctrine of absolute territorial sovereignty commonly referred to as ‘Harmon B doctrine’. According to this doctrine every State is sovereign and has right to do whatever it likes with the waters within its territorial jurisdiction irrespective of injury that it might cause to the neighbouring State by such appropriation and diversion. (ii) The second view is based on the stand that lower riparian State is entitled to water in its natural flow without any diminution or interference or alteration in its character. During the last century both views had been propounded – the first one by the upper riparian State and the second by the lower riparian State. If it is examined by an example, a State which is at the head of the river from which the river initially passes then such State can utilize and divert the water from the said river making the lower riparian State starve, leading to the break- down of the economy of such lower riparian State. Similarly, if the second view is pushed to its logical end, then the upper riparian State although may be in dire need of the water of such inter- E State river for agriculture and other use shall be a mute spectator of the 14 water of such inter-State river flowing from its territory to the lower riparian State. (iv) The third view is based on the principle of “equitable apportionment”, that is to say that every riparian State is entitled F to a fair share of the water of an inter-State river according to its need. Such a river has been provided by nature for common benefit of the community as a whole through whose territories it flows, even though those territories may be divided by political frontiers.”

158Copy pinpoint158. Thereafter, the Tribunal referred to the decisions in Kansas v. Colorado27, Colorado v. Kansas28, State of New Jersey v. State of New York 29 , State of Connecticut v. Commonwealth of

27 206 US 46 (1906) 28 320 US 383 (1943) 29 283 US 336 (1931) H

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Massachusetts30, State of Colorado v. State of New Mexico31 and came to hold as follows:- “24. It may be pointed out that in the Colorado v New Mexico 459 US 176 (1982) known as Colorado I as well as in Colorado v New Mexico 467 US at 310 (1984) known as Colorado II there are explicit indications, to consider future developments in equitably apportioning a fully appropriated river. But it has been pointed out in those opinions that any future developments must not be inherently speculative in nature and assessment is required to be made on the benefits and harms of a future use.

25. It also appears that recent treaty between Canada and the C United States with regard to the Columbia basin has discredited Harmon doctrine. Also in other international disputes in respect of sharing of waters of rivers flowing from the territory of one nation to another, treaties have been entered which show that different nations have adjusted their differences. The Indus Treaty 1960, between India and Pakistan is an example. D

26. In Halsbury’s Laws of England, Fourth Edition, Volume 49(2) in paragraph 121 it has been said: “121. Rights and duties as to quantity of water. The right of a riparian owner to the flow of water is subject to certain qualifications with respect to the quantity of water which he is entitled to receive. The right is subject to the similar rights of other riparian owners on the same stream to the reasonable enjoyment of it, and each riparian owner has a right of action in respect of any unreasonable use of the water by another riparian owner. A riparian owner must not use and apply the water so as to cause any material injury or annoyance to his neighbours opposite, above or below him, who have equal rights to the use of the water and an equal duty towards him.”

159Copy pinpoint159. At this juncture, it is worth noting the submissions advanced by Mr. Katarki, learned senior counsel appearing for the State of G Karnataka and Mr. Naphade, learned senior counsel appearing for the State of Tamil Nadu. It is submitted by Mr. Katarki that the equitable share of water to be allocated to the party States had to be based on 30 282 US 660 (1931) 31 459 US 176 (1982) H

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A needs rather than on the flow of the river. No State had any right to the natural flow of an inter-state river and several factors had to be considered while assessing the needs like basin factors, drought area and population. He emphasized on the basic aspects, namely, Natural Flow Theory and Helsinki Rules, 1966 and placed reliance on the decision in New Jersey (supra) and other authorities. Mr. Naphade, per contra, would contend that the contention that there has to be an equal apportionment of water between the two States is untenable. According to him, the parameter of equality has to be understood from a different perspective in a controversy giving rise to water dispute. He relied upon the observation made by the Narmada and Krishna Water Disputes Tribunals that the principle of equality did not imply that there must be an equal division of water between the States but instead meant that the States must have equal consideration and equal economic opportunity. Such equality would not necessarily result in the same quantity of water being provided to the parties.

160Copy pinpoint160. The Tribunal has referred to the Helsinki Rules of 1966 that has rejected the Harmon Doctrine and laid stress on the need of equitable utilization of international rivers. The said Rules relate to the use of waters of international rivers. Articles V, VI and VIII read as follows:- “Article V E (1) What is a reasonable and equitable share within the mean-ing of Article IV is to be determined in the light of all the relevant factors in each particular case. (2) Relevant factors which are to be considered include, but are not limited to: F (a) the geography of the basin, including in particular the extent of the drainage area in the territory of each basin State ; (b) the hydrology of the basin, including in particular the contribution of water by each basin State; (c) the climate affecting the basin G (d) the past utilization of the waters of the basin, including in particular existing utilization; (e) the economic and social needs of each basin State ; (f) the population dependent on the waters of the basin in each basin State; H

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(g) the comparative costs of alternative means of satisfying file A economic and social needs of each basin State; (h) the availability of other resource!; (i) the avoidance of unnecessary waste in the utilization of waters of the basin ; (j) the practicability of compensation to one or more of the co- B basin States as a means of adjusting conflicts among uses; and (k) the degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State; (3) The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. C In determining what is a reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. Article VI: A use or category of uses is not entitled to any inherent preference over any other use or category of uses. D Article VIII: 1. An existing reasonable use may continue in operation unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use. E

2. (a) A use that is in fact operational is deemed to have been an existing use from the time of the initiation of construction directly related to the useor, where such construction is not required, the undertaking of comparable acts of actual implementation (b) Such a use continues to be an existing use until such time as it is discontinued with the intention that it be abandonded. F

3. A use will not be deemed an existing use if at the time of becoming operational it is incompatible with an already existing reasonable use.”

161Copy pinpoint161. On a perusal of the said Rules, it is clear as crystal that the said Rules have not accepted the Harmon doctrine. It has, on the contrary, G laid emphasis on the need of equitable utilization of such international rivers. It is noticeable from Articles IV and V of the said Rules that they recognize equitable use of water by each basin State, setting out the factors, not exhaustive though, to be collectively taken into consideration for working out the reasonable and equitable share of the riparian states. H

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A The indicated factors, inter alia, include the geography of the basin, the hydrology of the basin, the climate, past utilization of waters, economic and social needs of each basin State, population dependent on the waters of the basin in each basin State, availability of other resources and the degree to which the needs of a basin State may be satisfied without causing substantial injury to a co-basin State. The emphasis clearly is that in determining the reasonable and equitable share, all relevant factors are to be considered together and a conclusion is to be reached on the whole.

162Copy pinpoint162. In this regard, it is submitted by Mr. Nariman that the allocation of water could be done equitably and in accordance with justice by restoring equal rights to the party states. He submitted that Karnataka and Tamil Nadu were co-equal States and that justice had to be done to both while allocating water, a fact which the Tribunal had failed to recognize. The Tribunal intertwined a decision based on a void agreement with the doctrine of equitable apportionment contrary to the law laid down in In Re: Presidential Reference (supra). He submitted that the various applicable factors set out in the Helsinki Rules, 1966 were more or less evenly balanced between the two States. Further, based on the maxim that equality was equity, the balance water available after subtracting the share of the smaller States, i.e., Kerala and Puducherry and after accounting for wastage ought to be divided equally between E Karnataka and Tamil Nadu.

163Copy pinpoint163. In this context, we may refer to the dictionary clause of the 1956 Act. Section 2(c) defines ‘water dispute’. It reads as under:- “2(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.”

164Copy pinpoint164. Section 3 deals with complaint by the State Government as to water disputes. The said provision is extracted below:- H

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“3. Complaints by State Governments as to water disputes.—If A it 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— (a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or (b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a Tribunal for adjudication.”

165Copy pinpoint165. The definition of ‘water disputes’ and the provisions contained in Section 3 have to be given due significance. Section 3 protects the right of inhabitants of a State. When the States make a request under the 1956 Act for adjudication of the disputes, the interest of the inhabitants of the State is involved. That is why, submits Mr. Nariman, both the States are governed by the parens patriae principle. Keeping in view the principles of law stated, we are disposed to think that the controversy is to be adjudged on the bedrock of equal status of the States and the doctrine of equitability. O. The quintessence of pleadings before the Tribunal

166Copy pinpoint166. Having stated thus, we think it seemly to refer to the findings on material aspects that pertain to the pleadings as regards the allocation of quantity of water and the foundation to sustain such claims. In that arena, we shall first advert to the outline of the pleadings.

167Copy pinpoint167. The plea of the State of Karnataka was that till the end of the 19th century, utilization of the waters of the Cauvery in the States of Coorg and Mysore was primarily from channels drawn from the river bed and from tanks in small quantities not exceeding 73 TMC in H

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A aggregate. There was no facility of storage and, thus, the agricultural operations were dependent on rainfall. It alleged that the efforts made by the State of Mysore to utilize the waters of this river for the purposes of irrigation were continually frustrated by the protests of the British Government of Madras and though the State of Mysore was the upper riparian State and contributed the highest flow to the river, yet it was not permitted to exercise its powers to utilize the waters for irrigation due to the remonstrances of the lower riparian province of Madras. It pleaded that eventually, after a series of correspondence in the last part of the 19th century and early part of the 20th century and on the culmination of the arbitration proceedings on the issue, a scheme for storage of the water of Cauvery was formulated in 1931 after the construction of the Krishna Raja Sagara Dam (also referred to as “KRS”) for the storage of 44.8 TMC of water. It stated that by 1934, Madras too had completed the work of Mettur Dam for storage of 93.5 TMC of water of Cauvery thereby enabling cultivation of over 1,21,457 hec. (3,00,000 acres) of new area. It mentioned that after the reorganization of the States and formation of the State of Karnataka covering the areas of the new State of Mysore and others, the drainage area of Cauvery basin in Karnataka rose to 42.2%. Apart from referring to the principal tributaries of Cauvery in Karnataka like Harangi, Hemavathi, Kabini, it was underlined that the Cauvery river valley did receive varying degrees of rainfall. In elaboration, it was stated that while the western and central parts of the basin received rainfall in South-West monsoon commencing from the last week of May and ending in September, the eastern part was largely attended by the North-East monsoon starting in September and ending in December. It averred that the rainfall pattern per se evinced that large cultivable areas of the State suffered from inadequate rainfall. Though the hilly regions forming part of the Western Ghat in Karnataka received very heavy rainfall, yet other parts of the Districts of Mysore, Mandya, Hassan, Tumkur, Bengaluru and Kollar encountered severe and successive droughts.

168Copy pinpoint168. According to Karnataka, in sharp contrast, the eastern part of the basin in Tamil Nadu received heavy rainfall in North-East monsoon beginning from the end of September and ending in December and further the central part of the basin in Tamil Nadu received both South-West monsoon and North-East monsoon. Referring to the report of the Irrigation Commission, it maintained that though Karnataka had very large areas of cultivable and cultivated lands in the Cauvery basin, yet it

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has the largest extent of drought prone areas in the basin as well and that there was an imperative need to extend relief to these areas by providing proper irrigation facilities. It emphasized as well that due to uncertain ground water resources resulting from reduced recharge, general deep water table and low storage in the aquifer, the State has to depend on surface water allocation in the Cauvery basin. Elaborating its crop pattern, it was canvassed that Ragi, Jowar, Sessamum, Groundnut, Redgram and short duration pulses were the common Kharif crops under rain fed conditions. In some areas where there were pockets of retentive soils or were visited by late rains, some Rabi crops like Jowar, Bengalgram and cotton are also cultivated. It emphasized that to ensure crops during the entire period from June to February, i.e., the irrigation season, water from Cauvery was an indispensable necessity, more particularly in view of the precarious drought conditions suffered by the State.

169Copy pinpoint169. Referring to the backdrop of the dispute and the reference for the adjudication thereof before the Tribunal, the State of Tamil Nadu reiterated its demurral that the State of Karnataka did construct four reservoirs over Kabini, Hemavathi, Harangi and Suvarnavathi tributaries of Cauvery and set up other projects for storing water of the river much beyond the limits stipulated in the agreement of the year 1924 which decisively resulted in material diminution of the supply of waters of Cauvery to its territories. According to it, such indulgences adversely affected the Ayacutdars in Tamil Nadu who had been dependent on the water of river Cauvery for centuries. While reiterating that the Agreements of 1892 and 1924 did factually recognize and protect the prescriptive rights of Tamil Nadu, a lower riparian State, over the water of Cauvery and that these agreements were the yields of deliberations over the disputes between the erstwhile Governments of Madras and F Mysore, whose successors- in-interest are the present States of Tamil Nadu and Karnataka, it was averred that though the State of Karnataka was at liberty to use the water of Cauvery, yet it could not do so to the prejudice of the interest of the people of Tamil Nadu. It underlined that the apportionment of the water of an inter-State river has to be adjudged on the principle of equitable apportionment as well as by the common G law of prescriptive rights. According to Tamil Nadu, wherever there is an agreement between the parties regarding the use, development and control of waters of an inter-State river and the river valley thereof, the stipulations in the agreement would govern the claim of the parties. It alleged that the construction of Kabini, Hemavathi, Harangi and H

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A Suvarnavathi projects by Karnataka was without the consent of Tamil Nadu and thus in violation of the Agreement of 1924 and by taking advantage of the fact that Tamil Nadu was a lower riparian state. It dilated that Karnataka proceeded with the construction of Kabini reservoir from 1958 and completed the same in 1975 and the irrigation from the said reservoir commenced from 1975/1976 onwards. Tamil B Nadu contended that because of the construction of these reservoirs, the inflows into Mettur reservoir were substantially and materially diminished to its immense prejudice. Apart from reiterating that the construction of these projects was without the consent of Tamil Nadu and also the clearance required therefor, it asserted that as per the settled principles, the upper riparian state did not have an absolute right to impound or utilize the water of an interstate river to the detriment of the lower riparian States. It strongly put forth that the pre-existing right of the lower riparian State has to be preserved more particularly when river Cauvery is the only major river in Tamil Nadu which had been contributing nearly 50% of the State’s surface water use. Referring to the two monsoons experienced by the State, Tamil Nadu elaborated that the upper part of the Cauvery basin, which is above Mettur, is influenced by South-West monsoon and the lower part by the North-East monsoon and that the flow of river during the South-West monsoon is to a great extent dependent on the run off from the hilly catchment above the E Sivasamudram falls. It was stated that while the South-West monsoon is more intensive, unfailing and dependable and spread over a long period, the North-East monsoon, which visits the State after the South-West monsoon, is erratic and undependable so much so that the coastal areas and the Delta occasionally receive heavy intense rains of very short duration, most of which can neither be conserved nor utilized in the F Delta. According to the State, during the South-West monsoon, most of the catchment lying below the Mettur reservoir is not benefitted, except a small portion of the high ranges of Bhawani and Amaravathi tributaries, as the catchment lies on the rain shadow areas of the Western Ghats. It was reiterated that due to the unique geographical and hydrological G characteristics of the Cauvery basin, Tamil Nadu is not in a position to avail the benefit of the South-West monsoon fully and has to suffer the damage wrecked by the North-East monsoon. To emphasize that it had to depend on the flows of river Cauvery since June onwards during the South-West monsoon and on local rainfall during the North-East monsoon, it explained that after the commissioning of the Mettur reservoir in 1934, H

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it had been possible to impound the excess flows and dispatch regulated A discharges to meet the needs of the river channels enroute the Delta and that contingent on the availability of supplies, a number of regulatory controls have been devised to regulate the same. Referring to its crop pattern, Tamil Nadu disclosed that in the Delta, a short duration crop called “Kuruvai” is raised between the months of June and September B followed by a medium crop named “Thaladi” between October and February. It also mentioned about a long term crop named “Samba” raised between July and January in single crop lands which are large in extent. Tamil Nadu underlined that rice was the dominant crop in the Delta especially in the Thanjavur district and that the whole State largely depended on this district for rice which was the staple food of the people. C It asserted that the alluvial soil of the Delta was ideal for growing rice subject to the availability of water and only in isolated pockets, sugarcane, banana and other crops are grown.

170Copy pinpoint170. Kerala averred that the river Cauvery originates in the eastern slopes of the Western Ghats and has its huge catchment spread over the D States of Kerala, Karnataka and Tamil Nadu and that three tributaries of the river, namely, Kabini, Bhavani and Pamber, have portions of their catchments in the State of Kerala. It was further asserted that its total contribution in the flow is to the extent of 20% but it lags behind others in utilization of waters of the Cauvery. As a reason therefor, it cited the fact that before the reorganization of the States in the year 1956, neither E Travancore nor Travancore-Cochin State was recognized as an interested party in the dispute of sharing of the water of Cauvery, but after the reorganization, determined efforts were made for improvement of the Basin and diversion of the water in Cauvery Basin for utilization by the State. It, however, underlined that the efforts of the State stood frustrated because of the objection of the other riparian states and though several claims had been brought up and were otherwise found to be technically feasible and economically viable, yet those could not be executed because of the adamant attitude of the other lower riparian states. It highlighted that the State of Kerala, for all these factors, had to be dependent on the single crop of paddy though there is much scope for raising second or even third crop with the availability of irrigation facilities from the water available in the Cauvery Basin. It emphasized that its ground water potential was negligible but because of the special topographical feature of the Cauvery Basin in the State of Kerala, diversion of water from the Cauvery Basin did promise the scope of development of cheap hydro H

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A electric power in addition to meeting the need for consumption of water for irrigation purposes. It stated that while it was stifled from taking up any scheme in the Basin, Tamil Nadu proceeded with the construction in utilizing water for extending irrigation and for that purpose, the Government of India cleared projects like Mettur Canal Project, Kattalai High Level Canal and Pullambadi Canal Schemes. The State of B Karnataka also embarked upon new irrigation projects for utilizing Cauvery water even without the clearance of the Government of India in order to underscore the discrimination meted out to the State of Kerala in the matter of proportionate utilization of the waters in the Cauvery Basin to which it was entitled.

171Copy pinpoint171. The Union Territory of Puducherry pleaded that its Karaikal region is situated on the South Coromandel Coast and that the three sides thereof are bound by Thanjavur District of Tamil Nadu and on the East lay the Bay of Bengal. It disclosed that the total area of Karaikal region is 14,920/- hectares out of which 10,990 hectares is under D cultivation. While stating that the sub-soil water in the region is unsuitable for cultivation, it mentioned that the water supplied to Karaikal region from river Cauvery flows from the branches of the river below Grand Anicut where the river Cauvery divides and sub-divides itself and serves both the irrigation and training channels in the Karaikal area. The water requirement for the Karaikal region for the three crops, namely, Samba E (single crop), Kuruvai (Kharif) (Double crop) and Thaladi (Rabi) (Double crop) was mentioned to be 9240 Mc.ft, i.e., 9.24 TMC for 17220 ha. of irrigation. It claimed that the interest of its territory was taken note of when the Agreements of 1892 and 1924 were entered into between the then Government of Madras and Government of Mysore in connection F with the construction of Krishna Raja Sagara Dam and that at the time of construction of Mettur Dam, the French Administration, then in-charge, passed on its claim to the then Government of Madras for regulation of supply of Cauvery Water to Karaikal region. It, however, alleged that after 1972, there has been a shortfall in the actual release of water ranging from 2 TMC to 6 TMC. G

172Copy pinpoint172. After recording the evidence to which we shall refer to hereinafter under different headings, to reiterate, the issues for the purpose of convenience were regrouped finally which we have already reproduced hereinbefore.

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173Copy pinpoint173. The Tribunal in seriatim dealt with the regrouped issues and, A accordingly, proceeded to examine the validity or otherwise of the Agreements of 1892 and 1924. It set out the background and the circumstances under which the agreements were entered into. We need not advert to the same in detail as we have referred and dealt with while dealing with the issues pertaining to the status of the Agreements. B However, it is necessary to state that after a spate of correspondence and series of discussions, an agreement between the Mysore Government and Madras Government was entered into in 1892 in the form of rules captioned as “Rules defining the limits within which no new irrigation works are to be constructed by the Mysore State without previous reference to the Madras Government”. The Tribunal set down the relevant clauses of the Rules and the extracts therefrom having a formidable bearing on the issue under scrutiny are quoted hereinbelow:- “The Mysore Government shall not, without the previous consent of the Madras Government, or before a decision under rule IV below, build (a) any “New Irrigation Reservoirs” across any part of the fifteen main rivers named in the appended Schedule A, or across any stream named in Schedule B below the point specified in column (5) of the said Schedule B, or in any drainage area specified in the said Schedule B, or (b) any “New anicut” across the streams of Schedule A, Nos. 4 to 9 and 14 and 15, or across any of the streams of Schedule B, or across the following streams of Schedule A, lower than the points specified hereunder: Across 1. Tungabhadra – lower than the road crossing at Honhalli, Across 10 Cauvery – lower than the Ramaswami Anicut and, Across 13 Kabani – lower than the Rampur anicut. F III. When the Mysore Government desires to construct any “New Irrigation Reservoir” or any new anicut requiring the previous consent of the Madras Government under the last preceding rule, then full information regarding the proposed work shall be forwarded to the Madras Government and the consent G of that Government shall be obtained previous to the actual commencement of work. The Madras Government shall be bound not to refuse such consent except for the protection of prescriptive right already acquired and actually existing, the H

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A existence, extent and nature of such right and the mode of exercising it being in every case determined in accordance with the law on the subject of prescriptive right to use of water and in accordance with what is fair and reasonable under all the circumstances of each individual case.”

174Copy pinpoint174. Schedule A that was annexed to the Rules provided the details of the rivers and their tributaries passing through the territory of Government of Mysore including Cauvery and its tributaries Hemavathi, Laxmanthirtha, Kabini, Honhole (or Suvarnavathi) and Yagachi (tributary of Hemavathi) upto Belur Bridge. It was clarified that at that point of time, there was no mention of the tributary Harangi in the Schedule as it was outside the territory of Mysore and was located in Coorg State.

175Copy pinpoint175. In the above premise, the Tribunal noted that in terms of the Agreement of 1892, the Mysore Government was required to obtain the previous consent from the Madras Government in respect of any construction proposed to be made including any new irrigation reservoir across the 15 main rivers named in Schedule A to the agreement or across any stream named in Schedule B below the point specified therein. It was stipulated as well that before any such project was executed, full information with regard to the same was required to be furnished to the State of Madras for the purpose of consent. In its turn, the Madras E Government was not to refuse such consent except on the failure of the Mysore Government to furnish full information regarding the proposed work to the Madras Government and if the grant of any such consent by the Madras Government would deprive its inhabitants of their protection of prescriptive rights already acquired and existent in accordance with law on the use of an inter-state river. F

176Copy pinpoint176. The Tribunal thereafter took note of the events subsequent thereto which, with time, gave rise to a fresh dispute between the two States following the formulation of proposals by them for construction of reservoirs on the river Cauvery. The dissension, as the Tribunal has noted, gave rise to disputes, the Griffin Award and eventually coming into force of the 1924 Agreement. The Tribunal generally traversed the agreement as a whole with particular reference to clause 10(i), (ii), (iii), (iv), (v), (vi), (vii), (xi), (xiv) and (xv) dealing with the construction and operation of the Krishna Raja Sagara reservoir; obligation of the Mysore Government to regulate the discharge through and from the said reservoir strictly in accordance with the rules of regulation set forth in Annexure

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(I) to the Agreement; future extensions of irrigation in Mysore and Madras A as well as future constructions of reservoirs on Cauvery and its tributaries mentioned in Schedule A of the 1892 Agreement; the mode and manner of operation of the reservoirs so as not to make any material diminution in supplies connoted by the gauges accepted in the rules of regulations for the Krishna Raja Sagara reservoir; reconsideration of the limitations B and arrangements embodied in Clauses (iv) to (viii) on the expiry of 50 years from the date of the execution of the agreement for the purpose of modifications and additions, as may be mutually agreed upon; liberty of the Mysore Government to construct, as an offset, a storage reservoir on one of the Tributaries of the Cauvery in Mysore of a capacity not exceeding 60% of the new reservoirs in Madras, should the Madras C Government construct irrigation works in Bhawani, Amravathi or Noyyal rivers as new storage reservoirs and the provision for reference to arbitration of any dispute between the two Governments touching upon the interpretation or operation or carrying out of the agreement.

177Copy pinpoint177. The Tribunal also set out the extract of Rule 7 of the rules of D regulation of the Krishna Raja Sagara prescribing the minimum flow of Cauvery that was to be ensured at the Upper Anicut before any impounding was made in the Krishna Raja Sagara reservoir. Be it stated, we have already reproduced the same earlier.

178Copy pinpoint178. The Tribunal next scanned the Agreements of 1892 and 1924 E and to discern the clarificatory Agreement dated 17.06.1929 noted that the fixed level or discharge was to be maintained on the basis of (a) the waters released from Krishna Raja Sagara reservoir, (b) from Kabini, Suvarnavathy, Shimsha and Arkavathi Tributaries which join Cauvery within the State of Mysore/Karnataka below Krishna Raja Sagara reservoir and (c) Four Tributaries of Cauvery in Madras/Tamil Nadu; (i) F Chinnar, (ii) Noyyal, (iii) Bhavani and (iv) Amaravathi.

179Copy pinpoint179. The Tribunal further observed that the Agreement only contemplated and provided for future extension of irrigation in new areas on the terms and conditions mentioned therein and concluded that after the execution of the said Agreement, there was no nexus or link between G the discharge of water of river Cauvery to the State of Madras and the areas over which any prescriptive right had already been acquired or was actually existing and the formula was worked out by taking the total area which was under irrigation by the Cauvery system before the execution of the said Agreement. H

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180Copy pinpoint180. It analyzed in detail the various clauses of the said Agreement with the mutual rights and obligations as specified therein and in that context, it opined that whenever a dispute was raised, it was to be examined in the light of the conditions prescribed not only in clauses 10 (iv) to 10 (viii) but also in the light of the obligation and mandate provided on the part of State of Mysore/Karnataka to follow the rules of regulation for Krishna Raja Sagara reservoir as contained in clause 10(ii).

181Copy pinpoint181. It adverted to the observations of this Court that though the water from inter-state river pass through the territories of riparian States, yet such waters cannot be located in any one State, being in a state of flow, and, thus, no State can claim exclusive ownership of such water so as to deprive the other States of their equitable share. Keeping in view of the judgment of this Court, the Tribunal negatived the contention of the State of Tamil Nadu that the allocation and apportionment of the waters of river Cauvery should be made strictly in accordance with Agreements dated 1892 and 1924 but parted with the observation that the terms thereof would, however, have to be kept in view, while considering the developments made in the different State vis-a-vis the share of each riparian State. P. The findings of the Tribunal on various issues P.¹ Prescriptive rights and other claims E

182Copy pinpoint182. Vis-a-vis the prescriptive rights and other claims projected by the States, the Tribunal reiterated that the Agreement of 1924 along with the rules of regulation of Krishna Raja Sagara reservoir, as appended thereto, did not indicate anything to that effect and neither any reference had been made to the areas over which any prescriptive right had been acquired prior thereto or existing nor any provision had been made with regard thereto. It differentiated in this respect the Agreement of 1892 which laid stress in respect of prescriptive rights already acquired and then existing from the Agreement of 1924 which did not contain a reference to any existing prescriptive right of the State of Madras or its cultivators in respect of the water to be released to it. The Tribunal perceived that the Government of Mysore and the State of Madras while entering into the Agreement of 1924 seemed to have recognized the total areas under irrigation of the Cauvery System within the State of Mysore as well as the State of Madras irrespective of any prescriptive right having been acquired by the State of Madras on any part or whole of the areas under irrigation and it rather provided for future extension

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of irrigation in new areas on the terms and conditions as set out. Referring A to a letter dated 06.07.1915 addressed by the then Dewan of Mysore to the Resident of Mysore which carried, according to the Tribunal, an admission on behalf of the State of Mysore to the effect that at that point of time, the area irrigated under the Cauvery System in Madras was 12,25,500/- acres, it upheld the claim of State of Tamil Nadu that prior to the execution of the Agreement of 1924, its area of irrigation was 13,26,233 acres. The Tribunal, thus, concluded that in the overall background, it would be futile to examine as to what was the total area in the then State of Madras over which prescriptive rights had been acquired or were in existence for the purpose of allocating the quantity of water to the State of Tamil Nadu and that for all intents and purposes, the issue regarding prescriptive right of Madras had been rendered academic. P.2 Breach of agreements of 1892 and 1924 and consequences thereof

183Copy pinpoint183. Dealing with the highly contentious issue of breach of the agreements and the consequences thereof, the Tribunal outlined the summary of the rival orientations. While the State of Karnataka urged that all its projects with regard to which grievances had been made by the State of Tamil Nadu had been contemplated under the Agreement of 1924 and that no separate consent therefor was required from the State E of Tamil Nadu and that in view of clauses 10(iv) and 10(vii), the Mysore Government was at liberty to carry out future extension of irrigation within its territories under the Cauvery and its tributaries to the extent as permissible thereunder and in the manner as prescribed, the remonstrance of the State of Tamil Nadu was that the Mysore Government did not furnish the full particulars and details of the reservoir schemes and of the impounding of water thereby, as required thereunder in clause 10(viii). It contended as well that the Rules of Regulation in respect of such reservoirs had to be settled first before the construction was to start as the apprehension of the then State of Madras was that impounding in such reservoirs was bound to affect the flow at Upper Anicut as stipulated in clauses 7 and 10 of the rules of regulation of Krishna Raja Sagara reservoir.

184Copy pinpoint184. To address these areas of dissension, in essence, the Tribunal primarily referred to the official exchanges/correspondence between the two States after the execution of the Agreement on various aspects H

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A bearing thereon, during which both the States did initiate and pursue their projects, levelling at the same time, against each other, the imputation of deviations from the Agreement. The Tribunal noted as well that after 1974, when according to the State of Karnataka, the Agreement of 1924 came to an end, it started impounding waters in different reservoirs constructed over the tributaries of Cauvery within its territories without B following any Rules or any of the terms of the Agreement of 1924 and that the areas which were to be put under irrigation from such reservoirs and other diversion of works, like Anicuts increased every year. Referring to the charts laid before it, the Tribunal also marked that the impounding of water in different reservoirs on Hemavathi, Kabini, Suvarnavathy C and Harangi tributaries in the State of Karnataka increased, which precisely was one of the inducing factors for the dispute to be referred to the Tribunal for adjudication. The Tribunal, on an overall view of the intervening developments, concluded that the issue as to who was at fault and responsible for such alleged breaches or violations had been rendered academic with time and was of no practical relevance. It, D however, set down that Mysore had observed the rules of regulation of Krishna Raja Sagara reservoir till the expiry of the period of 50 years from the date of the execution of the Agreement of 1924, but thereafter had started asserting its territorial rights over the water flowing from Cauvery within its boundaries. Noting, amongst others, that even the E State of Tamil Nadu had increased its acreage under the Cauvery irrigation system over the years from 16 lakhs to 28 lakhs, the Tribunal was of the view that the violations or the injuries caused by the States allegedly to each other was really a matter of history and defied any manageable parameter for assessment thereof after the lapse of considerable period of time. F P.3 Peripheral issues qua claims of Kerala and Union Territory of Pondicherry (presently named as “Puducherry”)

185Copy pinpoint185. The Tribunal, at this juncture, before embarking upon the scrutiny of the factors to ascertain the aggregate yield of water available G for the purpose of apportionment amongst the riparian States, addressed a few peripheral issues pertaining to the claims of Kerala and the Union Territory of Puducherry. Qua Kerala, it recorded that its claim of share of waters of the river Cauvery had been made primarily because of the areas transferred to it from the State of Madras. The Malabar District which before the reorganization of the States, was an integral part of the H

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State of Madras, it was noticed, not only included a part of the Cauvery A Basin but also a part of two important tributaries, namely, Kabini and Bhawani, apart from another tributary, namely, Pambar which was within the erstwhile State of Travancore Cochin, territories whereof also were integrated with the new State of Kerala on such reorganization. The erstwhile State of Travancore Cochin was not a party to the Agreement B of 1924, but after its formation in the year 1956, the State of Kerala started claiming apportionment of the waters contending that the said Agreement was not binding on it and ought to be ignored to determine its share. The Tribunal exhaustively referred to the series of communications projecting the grievances and demands of the State of Kerala, the demurral in substance being that the co-riparian States, Mysore and C Madras, were prosecuting their projects in total disregard of its share of water in the Kabini, Bhawani and Pambar tributaries. In the discussions held, it asserted that there was no valid or legal agreement which did bind it with regard to the allocation of waters in Cauvery and its tributaries as it was never a party thereto. It claimed that the three tributaries, namely, Kabini, Bhawani and Amaravathi, which had become part of Kerala State, did contribute about 220 TMC against the total flow of 680 TMC in the entire Cauvery basin and that there had been practically no utilization of this water by it. It registered its claim for irrigation and power generation at 86 TMC.

186Copy pinpoint186. The claim of Union Territory of Puducherry on the basis of its total area of cultivation to be 43,000 acres was taken cognizance of. This was based on the fact that the Karaikal region of the Union Territory of Puducherry was located within the Cauvery basin and that seven branches of Cauvery did flow through the said region. The Tribunal parted with the observation that the Union of Territory of Puducherry F was, thus, interested only in the allotment of its share of water in the Cauvery basin being at the tail end among the riparian States. It felt it apt to direct that 6 TMC out of the total volume to be released to Mettur Dam would have to be made available for utilization by Puducherry for its irrigation in the Karaikal region. G P.4 Gross water available for apportionment P.4(i) Surface flow of water:

187Copy pinpoint187. Having thus laid the factual preface comprehending the relevant facets of the discord, the Tribunal next turned to determine the H

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A surface flow of Cauvery river to ascertain the volume of water dependably available for eventual allocation amongst the claimants- States. For the said purpose, it initiated the scrutiny from the yield of the river. It noticed that the yield or the total available quantum of water in a river system was dependant on rainfall pattern, catchment area characteristics including soil and vegetal cover and various climatic parameters affecting evaporation and evapo- transpiration in the basin. It also took note of the fact that the annual yield of a given basin varies from year to year depending upon the occurrence of rainfall and its intensity and distribution in time and space. It observed that in the assessment of total yield, the withdrawals of water, if any, for different uses had a bearing and that the total annual flow including upstream withdrawals at the terminal site out of the yield of a river system was required to be noted. It recorded that due to variability of the annual yield of a river from year to year, depending upon the rainfall distribution, consequent run off and withdrawals, etc., such data is collected for a number of years to assess the reliable yield. At this stage, passing reference was also made to the doctrine put forward by the Attorney General Harmon of the United States that Riparian States have exclusive or sovereign rights over the water flowing through their territories and the anomaly in this doctrine in the implementation thereof, especially in cases where the water of the river concerned was not sufficient for all the E States through which it passed. This was so, as on the upper riparian State claiming its exclusive right to utilize the waters on the basis of the aforesaid doctrine, the right of use of water of such inter-state river by the lower riparian State would stand jeopardised. The other extreme assertion of the lower riparian States that they were entitled to water of such inter-State or international rivers in their natural flow without any F interference and alteration in their character did have the potential of creating disharmony and anomaly. To strike a balance for resolving such conflicting claims of the upper and lower riparian States, the principle of equitable apportionment as propounded by the Supreme Court of United States in Kansas v. Colorado (supra) was taken note of. The Tribunal G while accepting this principle however posed a question to itself, as to what would be the equitable apportionment, more particularly where the water available was not enough to cater to the needs of different riparian States.

188Copy pinpoint188. The Tribunal noted in this context that the total amount of water available in river Cauvery through surface flows and alternative H

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sources was much less than what the different States claimed and A required for their irrigation, electricity, drinking water and to run different projects. It recounted again the formation of the Cauvery Fact Finding Committee in the year 1972 and its report which, on the issue, after having regard to the particulars and data of the total yield forwarded by the States involved, cross-checked it spanning over a period between B 1933-34 to 1970-71 and also on the basis of its investigation and further taking into consideration the gauge and discharge readings at different places in different States, worked out the dependable yield at 50%, 75% and 90% to be 740 TMC, 670 TMC and 623 TMC respectively. In arriving at these figures, the Committee noted the utilization of Cauvery water in the years 1901, 1928, 1956 and 1971 by different States. The C Committee also reflected over the different projects in different States, land use, cultivated areas and agricultural practices, geology and minerals as well as the climate, rainfall and water resources vis-a-vis the competing States. Gauge and discharge observations at the recorded sites in Tamil Nadu and Mysore in particular were noted too. In view of the long term record available for the main Cauvery at Krishna Raja Sagara, Mettur and Grand Anicut/Lower Anicut, the Committee estimated the yield at 50%, 75% and 90% dependabilities. The Committee, thus assigned sufficient weightage to the existence of Krishna Raja Sagara and Mettur reservoirs and, accordingly, relied upon the data from 1933- 34 when both these reservoirs were in position. The yield at the terminal point of the basin, namely, Lower Coleroon Anicut, was, thus, assessed by the Committee at 740 TMC at 50% dependability, 670 TMC at 75% dependability and 623 TMC at 90% dependability. The Tribunal observed that the report of the Committee had been considered by the Chief Ministers of the States whereupon they concurred with the finding of the total yield within the Cauvery basin.

189Copy pinpoint189. In the same year, i.e., 1973, the Chief Ministers of the three riparian States and the Minister for Irrigation of Government of India in a meeting did also agree that it was necessary for all the concerned States to effect economy in the use of water so as to make it possible to meet the legitimate needs of other projects which were feasible in the G Cauvery basin. Having said that, in the end, Mr. C.C. Patel, Additional Secretary in the Ministry of Irrigation and Power was asked to carry out detailed studies on the scope for economy in the use of Cauvery waters. Accordingly, Mr. Patel, on the completion of his studies, suggested some H

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A concrete proposals in his report qua the States. The Tribunal recorded that the State of Tamil Nadu did not dispute at any stage the assessment made by the Cauvery Fact Finding Committee in respect of the river flow and total yield of river Cauvery to be at 740 TMC at 50% dependability, 670 TMC at 75% dependability and 623 TMC at 90% dependability and had also accepted about the utilization by the three riparian States, Tamil Nadu, Karnataka and Kerala, as found by the Committee in its additional report to be 566.60, 176.82 and 5.00 TMC respectively.

190Copy pinpoint190. The Tribunal, however, at the hearing of the arguments, required the States of Karnataka and Tamil Nadu to furnish the flow series for 38 years, i.e., from 1934-35 to 1971-72 and from the data so furnished, it transpired that according to the State of Karnataka, the average yield for the period 1900-01 to 1971-72 was 792.3 TMC which, at 50% dependability, figured 752 TMC. Tamil Nadu noticeably, on the basis of flow series from the year 1934-35 upto 1971-72, claimed the total yield at 50% dependability to be 740 TMC. The Tribunal, on a comparison of the flow series for the two States for the same period, i.e., 1934-35 to 1971-72, quantified the dependable yield at 50% at 734 TMC qua Karnataka and 740 TMC for Tamil Nadu. Responding to the plea of Karnataka that the Tribunal should take into consideration the flow series for the period after 1972, it noted that none of the party- E States had filed annual flow series for the period subsequent to 1972 for important nodal points, namely, Krishna Raja Sagara, Mettur and Lower Coleroon Anicut and that in the absence of such information, it was not possible to come to the conclusion that there has been a material change in the total yield within the basin. It remarked as well that after 1974, F none of the States appeared to be interested in disclosing the correct information in respect of withdrawals because of which the details furnished in respect of flows and withdrawals by the party-States in the common format after 1972 were disputed by both the States. The Tribunal took note of the fact that Kerala, since the initial stage, had supported the finding of the Cauvery Fact Finding Committee that 740 TMC of G water was available in the Cauvery system in an average year. The stand of the Union Territory of Puducherry was similar. In view of such preponderant and convincing empirical inputs, the Tribunal accepted the total yield of the Cauvery basin at 50% dependability to be 740 TMC and at 75% dependability as 670 TMC. H

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P.4(ii) Identification of dependable yield: A

191Copy pinpoint191. The Tribunal next turned to identify which of the two dependable yields, i.e., 50% or 75% was to be adopted for the purpose of eventual apportionment. In this context, it premised that the variability of annual yield from year to year warranted ascertainment of the sustainable utilizable flow which could be accepted for final allocation for which dependability of the available flow (yield) was of formidable significance. In this regard, it noticed that the utilizable quantities of water from surface run off had been assessed by different authorities including the Irrigation Commission, 1972 and the National Commission on Agriculture, 1976 based on physiographic conditions, hydro- meteorological parameters and socio-political environment, legal and constitutional constraints and available technology of development. The dependability factor, the Tribunal observed, did indicate the degree of assured supply available on the basis of which a project/scheme for any particular use had been designed. It also recorded that from the information furnished by the States of Karnataka and Kerala in the common format, it transpired that most of the projects had been designed on 50% dependability. The Tribunal felt advised as well by the observations of the Supreme Court of United States in State of Wyoming v. State of Colorado (supra) that the lowest natural flow of the years is not the test and the reasonable view is that a fairly constant and dependable flow materially in excess of the lowest may generally be obtained by means of reservoirs adopted to conserve and equalize the natural flow. The Tribunal mentioned that from the yield series furnished by the States of Tamil Nadu and Karnataka during the period of 38 years from 1934-35 to 1971-72, the lowest recorded yield was during the period 1952-53 at 523 TMC according to Tamil Nadu and 516 TMC according to Karnataka. F It noted that in the Cauvery basin, the fluctuation of the flows was not as high as in the Krishna or Narmada basin, such fluctuation between the lowest yield and the dependable yield being within 30% in comparison to 56% and 70% in case of Krishna or Narmada. The Tribunal took note of the storage capacities of various reservoirs built by the States of Tamil Nadu and Karnataka before and after 1972 in the Cauvery basin. It also G took into account the projects proposed by the State of Kerala having live storage of more than 1 TMC each totaling 19 TMC of live storage capacity in the basin. The fact that in addition, about 12 TMC of storage capacity was available from other small reservoirs with capacity of less H

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A than 1 TMC was taken cognizance of. The Tribunal, thus, concluded that the total storage capacity in the Cauvery basin was 330 TMC (gross) and 310 TMC (live). It was of the view that about 42% of 740 TMC (i.e., 50% dependable yield) could be stored in all the storage reservoirs in the Cauvery basin which was a very significant aspect for consideration in the development and utilization of water resources of a river basin. It B concluded that in view of the facets examined on the basis of the materials available, adoption of 50% dependable flow for apportionment amongst the party-States, bearing in mind the reinforcement in the two monsoon seasons and the availability of ample storage facilities, would be fair and the system could be further strengthened by integrated operation of the important reservoirs. P.4(iii) Additional source of water:

192Copy pinpoint192. The Tribunal, in its quest for an additional/alternative source of water, dwelt upon sub-surface water or groundwater which is a portion of the earth’s hydrological cycle. It started with the premise that the groundwater originates for all practical purposes as surface water which infiltrates into the ground from natural re-charge of precipitation, stream flow, lakes and reservoirs. It noted the recorded fact that recharge of the groundwater takes place from natural resources like rainfall and artificial modes, i.e., application of water to irrigate crops, flooding of areas caused by over-flowing of streams to their sides and seepage from unlined canals, tanks and other sources of re-charge in any particular area. It took cognizance of the empirical data prepared by the Central Ground Water Board, Ministry of Water Resources, Government of India, that groundwater caters to more than 45% of the total irrigation in the country. On this issue, whereas the State of Karnataka contended that while making apportionment of the waters available within the Cauvery basin, groundwater available within the delta areas should also be taken into consideration, per contra, Tamil Nadu asserted to the contrary. According to it, so far as the delta was concerned, the groundwater was mainly derived from re-charge by the supplies from G Mettur, i.e., it is the water of river Cauvery and its tributaries which by process of re-charge becomes groundwater within the delta area in the State of Tamil Nadu and the same is utilized by the farmers for raising of early nurseries ahead of releases from Mettur and for irrigating belated crop after stoppage of Mettur releases. It, thus, asserted that as the groundwater in the delta area is replenished by the releases from Mettur, H

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it cannot be considered to be an independent source of irrigation or an alternative means of irrigation. The Tribunal, in order to address this issue, traversed the studies undertaken, amongst others, by the Central Ground Water Board, Ministry of Water Resources, Government of India which, to reiterate, attested that groundwater is an important source of irrigation and caters to more than 45% of the total irrigation in the country and that the contribution of groundwater irrigation to achieve self- sufficiency in food grains production in the past three decades had been phenomenal. It mentioned in its report that although the groundwater is an annually replenishable resource, yet its availability is non-uniform in space and time and though for planning its development, a precise estimation of groundwater resource and irrigation potential is a necessary pre-requisite, yet such an exercise is rather difficult as techniques are currently not available for direct measurement. The report further enumerated the items of supply to and disposal from groundwater reservoirs. The Tribunal noted that for irrigation, there are three sources of water supply, namely, rainfall, surface flow of any river which can be taken to different areas through canal system and groundwater which can be taken out through open wells or tube-wells. Reverting to the Cauvery basin, the Tribunal marked that it was an admitted position that the variability in time and quantity of rainfall from the South-West monsoon and the North-East monsoon in some years do create problems thereby affecting the surface flow of river Cauvery and its tributaries which in its own turn affect the storage in different reservoirs like Krishna Raja Sagara, Mettur, etc. The Tribunal underlined that it is in this background that availability of groundwater assumed importance. It also referred to the disclosures in research undertaken in the field that the availability of groundwater for use was limited to the annual re-charge which could be withdrawn and again replenished by natural rainfall/artificial modes of re-charge so much so that the annual withdrawals of groundwater in any region need to be in equilibrium with the annual replenishment of groundwater in that region. It indicated on the basis of the materials available that over-withdrawals made from an aquifer (i.e., water bearing rock formation) at rates in excess of the net re-charge are described as G “mining” of groundwater as it lowers the groundwater level permanently to the extent these over-withdrawals are made thereby leading to serious problems. It noted that if such practice of over-withdrawals would continue resulting in decline of groundwater table, the pumping of water would become more and more expensive from the greater depth thus H

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A compounding the situation. The Tribunal, adverting to the Central Ground Water Board Publication “Ground Water Resources of India -1995” observed that whereas in Karnataka, dug-wells, dug-cum-bore wells and bore wells were the main groundwater structures feasible, the ground water development for irrigation had commenced recently in the State. As regards the State of Tamil Nadu, it was observed that groundwater development in most of the parts of the State was high resulting in lowering of water level in many areas. The caveat in the report that in the coastal areas of Tamil Nadu, a cautious approach has to be adopted for groundwater development due to salinity hazards, was noted. The fact that the research study and experiments indicated towards the encouraging conjunctive use of groundwater with the available surface waters was taken note of by the Tribunal as well. This was clearly suggestive of the comprehension that groundwater could be used to supplement surface water supplies in order to reduce peak demands for irrigation and other uses or to meet the deficit in the years of low rainfall. Reports, inter alia, of the Irrigation Commission, 1972 disclosing the role played by groundwater in mitigation of the requirements of the party- States, namely, Karnataka (35%), Kerala (21%), Tamil Nadu (47.2.%) and Union Territory of Puducherry (61%) were noticed by the Tribunal. The Tribunal also took note of the fact that the development of groundwater had taken place mostly in the private sector where the owners have many a time over-exploited the available groundwater resources resulting in gradual lowering of the water level with the hazard of intrusion of sea water in the coastal areas thereby polluting the quality of groundwater in the vicinity of the coastline and, thus, rendering the groundwater in the affected area not only unfit for human consumption but also for use in agriculture. The Tribunal marked the limit of groundwater development proportionate to the annual replenishable groundwater resources as prescribed by the National Water Policy. The aspect that though underground water resources of a State had been acknowledged to be a relevant factor by the Krishna Water Disputes Tribunal, Narmada Water Disputes Tribunal as well as Godavari Water G Disputes Tribunal for equitable apportionment of the waters of an inter- State river system, yet they declined to investigate the question regarding availability of groundwater and quantity thereof on the ground that groundwater flow cannot be accurately estimated from the technical point of view and, thus not fully cognizable from the legal point of view, was underlined. H

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193Copy pinpoint193. The Tribunal referred to the investigation undertaken by a A team of experts under the United Nations Development Programme with its report stating that the total yearly quantity of replenishable groundwater that can be extracted from the shallow aquifer in the delta through high yielding medium-depth tube-wells equipped with turbine pumps is 129 TMC. It elaborated that the yearly quantity of groundwater B that can be extracted by using centrifugal pumps in the Cauvery sub- basin, Vennar sub-basin and in the new delta was 33.7 TMC, 5.4 TMC and 32.5 TMC respectively. Additionally, a quantity of 56.5 TMC of groundwater per year can also be made available in the Cauvery sub- basin by lowering seasonally groundwater level to 10 meters depth below the regional groundwater level and substituting high yielding medium- C depth tube-wells equipped with turbines for the low yield filter points with centrifugal pumps. This finding, however, was criticized by Tamil Nadu as impracticable and unworkable, more particularly in view of the high cost involved in purchasing the equipments suggested and in lowering the depth upto 10 meters by different cultivators in the Delta. The State D of Karnataka, however, supported the recommendation of the UNDP with the observation that if the same would have been implemented timely, the aquifers in the Delta would have been re-charged by North- East monsoon rainfall which could be utilized during the period from June to October next year.

194Copy pinpoint194. The Tribunal took note of the study conducted by a team of E the Central Ground Water Board of the utilization of groundwater with special reference to the Delta area in Tamil Nadu which indicated that the groundwater potential available from the Delta was to the extent of 64 TMC which included 5 TMC from deep acquifer (upto 100 meters deep). The Tribunal also took note of the report by Mr. W. Barber, F Consultant, World Bank on the Groundwater Resources of the Cauvery Delta which not only indicated the Gross Ground Water Abstractions from Cauvery Delta from 1971 to 1983 but also estimated the available groundwater to be 51.56 TMC. The Tribunal, on the basis of the reports submitted by the UNDP, Central Ground Water Board and Mr. Barber of World Bank, observed that the same, to a great extent, supported the G stand of Tamil Nadu that the re-charge of groundwater in the Delta area was mainly due to releases from Mettur reservoir. It, however, marked the admission of the State in its pleadings that the total groundwater extraction during the year 1989 was approximately 28.4 TMC in the Cauvery sub-basin, 7.3 TMC in the Vennar sub-basin and 11.3 TMC in H

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A the Grand Anicut Canal area (new Delta area) totaling 47 TMC. The statement of Tamil Nadu in its pleadings that in the old Delta there was scope for conjunctive use of groundwater to the extent of 30 TMC was recorded. Tamil Nadu, however, belatedly questioned the findings of the UNDP to be not fully representative of the area surveyed and in view of better parameters for revaluation of the aquifers, as suggested by the B Ground Water Resource Estimation Committee. But the Tribunal in absence of any evidence adduced by Tamil Nadu to this effect, preferred not to discard the reports of the UNDP. The issue was tested by the Tribunal in the context of the variety of crops grown and the rainfall received through the South-West monsoon and North-East monsoon. It C concluded from the reports of the Irrigation Commission as well as of the Cauvery Fact Finding Committee that the North-East monsoon was irregular and subject to frequent failures often accompanied with cyclonic formations in the Bay of Bengal resulting in high floods as well as large surface runoff with many a times even causing damage to the standing paddy crop. On a scrutiny of the report of the UNDP and the Central D Ground Water Board, the Tribunal concluded that as per the former, 39.2 TMC of the groundwater was available in the old Delta, whereas as per the latter, the stock was limited to 30 TMC. The Tribunal noted that this was in comparison to 28.79 TMC as estimated by Mr. Barber. It noted as well that qua the new Delta, UNDP had estimated at 32.6 E TMC and Mr. Barber had estimated at 22.77 TMC. In the background of such exhaustive studies by various agencies, the Tribunal observed that in a normal year when there would be regular releases of water from Mettur, the bulk of contribution to the groundwater in the Cauvery sub-basin would be from such releases, but in any case, the contribution from surface irrigation and rainfall could not be overlooked. All these notwithstanding, the Tribunal, considering the severe limitation in the assessment of groundwater resource, made a safe estimate of 20 TMC which could be used by Tamil Nadu conjunctively with surface water. The Tribunal clarified that this quantum was arrived at after excluding the component of groundwater re-charge from river water by lateral infiltration. P.5 The principles of apportionment

195Copy pinpoint195. The principles of apportionment of the waters of Cauvery, the gravamen of the dispute, next engaged the attention of the Tribunal. The fact that such principles for distribution of inter-state or international H