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

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rivers like the principles of natural justice had been evolved and developed by the Courts from time to time over centuries, while adjudicating water disputes between different States or Nations were noted as the starting premise. The Tribunal acknowledged that such disputes were directly linked with the development in different spheres and demands for water from such inter-state or international rivers could be traced to the rise in population. It reminisced to record that most of the ancient cities and civilizations had grown on the banks of such rivers because of the fertile land and easy communication but during the middle of the 19th century the industrial revolution and allied development, which brought prosperity to mankind, also bred conflict and dispute in respect of sharing of waters of such inter-State and international rivers. The perennial dissension between the upper riparian States claiming an absolute right on the flow of water passing through their territories and the lower riparian States claiming on the principle of right of easement was taken note of.

196Copy pinpoint196. The Tribunal ruminated that the resultant dispute and disharmony called for a balanced approach keeping in mind the interest of all the riparian states, the inherent question to be answered being which State should get what proportion of water out of the total yield of the river concerned. Noticing that the demands of different States when much higher than the total available water in the basin in question posed formidable challenges, the Tribunal recalled that the dispute about sharing of water of deficit river like Cauvery was more than one and a half century old as attested by the recorded facts. It took into account the assertion of the State of Tamil Nadu based on prescriptive right over the flows of river Cauvery as well as its right of prior appropriation being a lower riparian State. In endorsement of this plea, the State had relied on the relevant observations with regard to the doctrine of appropriation made in the report of the Indus Commission of the year 1942 to the effect that “priority of appropriation gives superiority of right”. The Commission had remarked that the common law rule of riparian rights was completely destructive of equitable apportionment for under that rule, the upper owner could hardly take any share, far less than his fair share of water of the river for the purposes of irrigation. In comparison, the doctrine of appropriation was consistent with equitable apportionment provided that the prior appropriator was not allowed to exceed reasonable requirements. The fact that this doctrine was dictated by considerations of public interest was noticed as well. The view of the U.S. Supreme Court in State of Wyoming v. State of Colorado (supra) to the effect H

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A that the cardinal rule of the doctrine that priority of appropriation gives superiority of right was underlined. The Tribunal construed that the priority of appropriation was a concept different from past utilization of waters of the basin by one State or the other. It noted as well the reservation of the Supreme Court of United States in State of Nebraska v. State of Wyoming (supra) that for an allocation between the appropriating States B to be just and equitable, strict adherence to the priority rule might not be possible though it may pose as the guiding principle. The Tribunal recorded that past utilization or existing utilization had also been recognized as a relevant factor in a proceeding for apportionment of waters of an inter- state or international river and conceptually was a part of the evolution C and development of river basin linked with the history thereof. It mentioned as well that though past utilization and existing utilization was a relevant factor in the matter of apportionment, yet there could be prevalent circumstances in other riparian States outweighing the prevailing practice so much so that in such an eventuality, such practice or use would be required to be restricted or modified in a reasonable manner. D

197Copy pinpoint197. The Tribunal also took note of the observations of the Krishna Water Disputes Tribunal in its report under the heading “Protection of Existing Uses” to the effect that in fixing the equitable share of the States, the claims of such existing uses should be allowed before claims for future uses are taken up for consideration. It was, however, reiterated that priority of appropriation, though the guiding rule, was not conclusive in equitable allocation. It recalled the observations of the U.S. Supreme Court in State of Nebraska v. State of Wyoming (supra) where junior uses of Colorado were allowed to prevail over the senior uses of Nebraska having regard to Colorado’s counter-veiling equities and established economy based on existing uses of water. The Krishna Water Disputes Tribunal’s remark that equitable apportionment can take into account only such requirements for prospective uses as are reasonable, having regard to the available supply and the needs of the other States, was referred to.

198Copy pinpoint198. The Tribunal also adverted to the discussion recorded by the Narmada Water Disputes Tribunal in its report where it dwelt upon the “Relevant Factors in the Balancing Process”, where, amongst others, various determinants like extent of dependence of the riverine dwellers on the river flow, the size of the river’s watershed or drainage area and the possibility of maintaining a sustained flow through the controlled use H

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of flood waters, seasonal variations in diversions, availability of storage facilities or ability to construct them, availability of other resources, etc. had been enumerated. The Tribunal noticed the remark in the report that the doctrine of equitable apportionment cannot be put in the narrow strait-jacket of a fixed formula and that in determining the just and reasonable share of the interested States, regard must be had to these factors and beyond so that the allocation will be made according to their relative economic and social needs. In this regard, the volume of the stream, the water uses already been made by the State concerned, the respective areas of land yet to be watered, the physical and climatic characteristics of the States, the relative productivity of land in the States, the State-wise drainage, the population dependent on the water supply and degree of their dependence, extent of evaporation in each State and the avoidance of unnecessary waste in the utilization of water were also factors to be applied.

199Copy pinpoint199. The Tribunal also referred to the reports of the Godavari Water Disputes Tribunal and Ravi and Bias Water Tribunal to underline the primacy of the recognition of equal rights of the contending States to establish justice between them over the claim of absolute proprietary rights in river waters. The reports explained that equal right, however, did not mean an equal division of water but implied an equitable apportionment of the benefits of the river, each unit getting a fair share.

200Copy pinpoint200. With the third view gaining increased recognition and application in the resolution of water disputes involving the issue of allocation and distribution of waters of an inter-state river, the Tribunal in reiteration noted the observations of the U.S. Supreme Court in Kansas v. Colorado (supra) that the right of flowing water is well-settled to be a right incident to property in the land and it is a right publici juris and is of such character that whilst it is common and equal to all through whose land it runs and that no one can obstruct or divert it, yet it is one of the beneficial gifts of providence so that each proprietor has a right to a just and reasonable use of it as it passes through his land as 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. The G Tribunal further held that it cannot be said to be wrongful or injurious to a proprietor lower down if there is jus case. The theme was further elaborated in Colorado v. Kansas (supra) with the elaboration that the lower State is not entitled to have the stream flow as it would in nature regardless of the need or use and if then the upper State is devoting the H

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A water to a beneficial use, the question would be, in the light of existing conditions in both the States, whether and to what extent her action, injures the lower State and her citizens by depriving them of a like or an actually valuable, beneficial use. The observation of the U.S. Supreme Court in State of New Jersey (supra) that a river is more than an amenity being a treasure and that the competing riparian states have real and substantial interests in it requiring best reconciliation thereof was highlighted. It noted the exposition of the U.S. Supreme Court in State of Connecticut (supra) that “equality of right” applied to settle disputes with regard to allocation of water would not connote equal division of waters of an inter-State stream but would mean that the principles of right and equality should be invoked having regard to the “equal level or plane” on which all the States stand, in point of power and right under the Constitutional system.

201Copy pinpoint201. The determination of the U.S. Supreme Court in State of Colorado v. State of New Mexico (supra) that the rule of priority should not be strictly applied where it would work more hardship on the junior user than it would bestow benefits on the senior user, was recorded. The opinion of Chief Justice Burger in the said decision to the effect that each State through which the river passes has a right to the benefit of water, but it is for the Court, as a matter of discretion, to measure their relative rights and obligations and to apportion the available water equitably, was taken note of in particular. The following passage from the Halsbury’s Laws of England, 4th Edition, Vol. 49(2), paragraph 121 was extracted to underscore the parity in the rights of co-riparian claimants to a reasonable enjoyment and use of the water:- “121. Rights and duties as to quality of water. The right of a F 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 G 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.” H

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202Copy pinpoint202. The Tribunal next marked the advent of the Helsinki Rules A of 1966 which rejected the Harmon doctrine and laid emphasis on the need of equitable utilization of such international rivers. The said Rules 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. B 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 C 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.

203Copy pinpoint203. The Tribunal, in this regard, recalled that this Court in the Presidential Reference in which the “Karnataka Cauvery Basin D Irrigation Protection Ordinance, 1991” fell for scrutiny had reiterated the same law and principles to govern the equitable allocation of water of an inter-state river between the different riparian States. Paragraph 72 of the decision rendered by this Court in the said proceedings was extracted. E

204Copy pinpoint204. In the background of the above exposition, the Tribunal recorded that so long as the river flows are not wholly obstructed or diverted or appropriation of the water by the upper riparian States is not more than just and reasonable use, it cannot be said to be wrongful or injurious to the right of the lower riparian State. It stated that equitable apportionment would, thus, protect only those rights to the water that were reasonably required and applied especially in those cases where water was scarce or limited. It emphasized that the water of a river being a treasure in a sense, wasteful or inefficient use thereof cannot be approved and only diligence and good faith would keep the privilege alive. It, however, reflected that the theory of equitable apportionment pre-supposed equitable and not equal rights and any order, direction, agreement or treaty has to take into consideration the economic and social needs of different riparian States. It reiterated that while determining the reasonable and equitable share, all relevant factors are to be cumulatively considered. H

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205Copy pinpoint205. The Tribunal also took into consideration the report of the 71st Conference of the International Law Association held in Berlin in August 2004 where the relevant factors necessary for determining an equitable and reasonable use were again outlined. The factors mentioned in the Helsinki Rules were retained along with precise emphasis on the precept of collective consideration thereof for reaching a conclusion qua apportionment of just and equitable share of water of an inter-state river. Apart also from adverting to the “The Campione Consolidation of the ILA Rules on International Water Resources, 1966-1999” which substantially reiterated the above principles, the Tribunal also reminded itself of the verdict of this Court that it was an acknowledged principle of distribution and allocation of waters between the riparian States that the same has to be done on the basis of equitable share of each state, however leaving it open to decide such equitable share depending on the facts of each case. The Tribunal, thus, concluded that no doubt that prior use has to be given due weight because cultivators have been irrigating their lands in the lower riparian State as in the Delta in the case in hand for centuries, but that factor has to be taken into consideration along with several other factors for the purpose of determination of the just and equitable share of water amongst the competing riparian states, more particularly when the resources in demand were in short supply. The Tribunal, therefore, held the view that though past utilization was a E relevant factor, yet it was possible that the circumstances in the other riparian States could be such that their demands for reasonable share might outweigh such past utilization of any particular riparian State and, consequently, the Courts and Tribunals would have ample power for taking into consideration the overall relevant circumstances to curtail and modify the past uses by any riparian State. This was more so in view of Article IV of the Helsinki Rules which clearly indicate that each basin state is entitled within its territory to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin.

206Copy pinpoint206. Reverting to the contextual facts and the controversy founded thereon, the Tribunal analyzed the existing scenario and observed that prior to the year 1924, the river Cauvery was in a state of flow in the sense that whatever water came from the source and the tributaries in the State of Mysore and Madras used to pass through the Delta and the utilization of Cauvery water within the State of Mysore was negligible H

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compared to that in the State of Madras especially in the Delta area. It A further observed that the utilization of Cauvery water so far as Kerala was concerned was virtually nil. The situation started changing with the constructions of reservoirs in Mysore and Mettur in Madras for which the flow of water of Cauvery was regulated to a great extent.

207Copy pinpoint207. The Tribunal apprised itself of the background and observed B that the main development and utilization of Cauvery basin before 1924 occurred in Madras mostly in the Delta area and it being the lower riparian State, enjoyed almost full flow of river Cauvery as well as its tributaries. It noted that as per the report submitted by the Cauvery Fact Finding Committee in the year 1972, the inter se utilization of waters of Cauvery by Tamil Nadu including the Karaikal region of Union Territory C of Puducherry, Mysore and Kerala used to be 566.60 TMC, 176.82 TMC and 5 TMC respectively. In the background of the Agreements of 1892 and 1924, the Tribunal recapitulated the persistent protests of the State of Karnataka qua the restraints put on it on the use of the waters of the Cauvery river for which it was not possible on its part to irrigate lands even as contemplated under the Agreement of 1924. The plea based on judicially enounced view that neither the upper riparian State can claim paramount right to appropriate more water than what is its reasonable requirement nor the lower riparian State can claim any prescriptive right to the flow of water was noted. The Tribunal, thus, accepted, as its guide, the principle that the waters of an inter-State or international river are to be shared in a just and equitable manner so as to serve the need and necessity of each riparian State. P.6 Determination of “irrigated areas” in Tamil Nadu and Karnataka F

208Copy pinpoint208. With reference to the norms suggested by the party-States for apportionment of Cauvery waters for pre and post Agreement of 1924 in the context of the irrigated areas corresponding to this time phase, the Tribunal enumerated the following four categories, the needs of irrigation whereof were required to be addressed:- G “(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. H

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A (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.”

209Copy pinpoint209. Having laid the preface for the discernment of the areas developed for irrigation in the competing States prior to, under and beyond the Agreement of 1924 and also areas which could be allowed to be irrigated on the principle of equitable apportionment, the Tribunal took up the claims of the competing States in succession.

210Copy pinpoint210. Qua the areas developed by Madras/Tamil Nadu, it principally adjudged the entitlements on the touchstone of Clauses 10(v), 10(xii) and 10(xiv) of the Agreement of 1924 together with the Administrative Report, 1923-24, CFFC Report, 1972, C.C. Patel Committee Report as well as the reports of the Irrigation Commission and National Commission D for Agriculture, 1976. While accounting for the water requirement for the second crop in the irrigated areas grown prior to and in terms of the 1924 Agreement, the same was disallowed for the areas beyond it. Having regard to the scarcity of water resources in the Cauvery Basin and the principle of equitable apportionment, it noted that the practice of double crops in the same field during an agricultural season required more water and, thus, the areas where the cultivable land is more and the availability of water is a constraint, the projects are designed to cover larger areas for cultivation of light irrigated crops. It observed that since paddy was high water consuming crop, it would cover smaller areas than semi-dry crops which needed lesser water for which the extent of areas could sometimes be 2 to 3 times. Having regard to the fact that in a country like India, where the bulk of population was engaged in agriculture for its livelihood, the Government policy was to cover as large area as possible, a concept known as “Extensive Irrigation”. It was of the view that in a water deficit basin like Cauvery, the annual intensity of irrigation (Annual Intensity of Irrigation means acreage – area under irrigation) is G a very significant factor and needed to be considered keeping in view the large number of small farmers for sustenance of their livelihood and bearing that in mind, it construed it to be proper to restrict the annual intensity of irrigation to 100% and, accordingly, allowed the extent of areas to be irrigated in each State depending upon the availability of H water. It referred to the CFFC Report vis-a-vis Tamil Nadu wherein it

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was observed qua the crops of Kuruvai, Samba and Thaladi that savings A could be effected by (i) restricting the double crop paddy area; (ii) introduction of shorter duration variety in place of Samba and; (iii) growing crops requiring less water.

211Copy pinpoint211. The Tribunal, thus, determined the necessity to restrict the double crop area as far as possible. Further, the recommendation of the B National Commission on Agriculture, 1976 to the effect that rice should be grown in no rainy season area or low rainfall areas only if the available irrigation supplies cannot be put to more economic use for other crops was noted in endorsement of this finding. It noted as well the opinion of Dr. M.S. Swaminathan, witness for the State of Tamil Nadu, to the same effect. C

212Copy pinpoint212. Keeping in mind the fair and equitable share principle, it expressed that in order to assess reasonable water requirements, it would be essential to first consider the extent of areas which had already been developed vis-a-vis the development permitted under the Agreement and thereafter consider the just and fair claim of development for irrigation as placed by the party-States before it. It noted that the total claim of the party-States for development of irrigation in the territories did far exceed the availability of waters which called for imperative restrictions. It mentioned that in the State of Tamil Nadu, the entire development in the past and future was based on paddy cultivation which was a high water consuming crop and the State had almost reached the ultimate potential of its irrigation development by 1974 as was evident from the CFFC Report and also as claimed by it. In contrast, qua Karnataka, the Tribunal marked that in the past, it had been growing paddy wherever it could get irrigation facility but could not complete the development as contemplated under the 1924 Agreement by 1974. It, however, noted that the State of Karnataka had embarked on the construction of reservoir schemes some years previous to the completion of 50 years of the 1924 Agreement and along with the progress of the reservoirs, kept on releasing waters to the newly opened areas for irrigation so that by the year 1990, its contemplated development was almost thrice in extent to the development achieved in 1974. The fact that in comparison, Kerala could hardly mark any development of irrigation except under minor irrigation in a total area of about 50,000 acres till 1990, was noticed. The Tribunal took up the task of ascertaining the extent of development which could be allowed to the party-States and the crop water requirement therefor so that a fair and reasonable allocation of surplus water would become H

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A possible. It observed that for equitable distribution, one of the considerations ought to be the existing development of irrigation. Keeping this in view, the double crop developed beyond the provisions of the 1924 Agreement, whether in Tamil Nadu or in Karnataka, was not taken note of. The Tribunal was, in this regard, also impelled by the fact that equity demanded that the farming families should at least be having one single crop which they could raise for their livelihood with the support of irrigation facilities and thereby derive the benefit from the natural river water resources which was common to all. In this respect, the Tribunal underlined that the paddy crop should be so planned as to make maximum advantage of the rainy season in the Cauvery basin area, relaxation however being extended to areas over which second paddy crop was being grown prior to the Agreement of 1924 as well as second crop permitted by the said Agreement by way of extension. While identifying the areas developed or undergoing development in the State of Tamil Nadu beyond the entitlements contemplated in the 1924 Agreement, the Tribunal applied the following criteria, namely, no double crop/perennial crop de hors the 1924 Agreement; no area for summer paddy; the area of summer paddy raised prior to 1924 to be replaced by semi-dry crop; annual intensity of irrigation to be restricted to 100%; cropping period to be restricted within the irrigation season, i.e., from 1st June to 31st January and ambitious Lift Irrigation Schemes to be discouraged. Apart from this, the Tribunal excluded the areas beyond the Cauvery Basin as well as those utilized for high water consuming crop like sugarcane. Keeping in view the shortfall in supply of water, the Tribunal, based on contemporaneous data, did also scale down areas proportionately under some schemes but did account for dry areas sought to be catered by the corresponding projects. F

213Copy pinpoint213. Applying these principles generally, after an exhaustive analysis of the relevant facts, it did fix the areas under the afore-mentioned four categories qua Madras/Tamil Nadu as hereinbelow: (i) Area under irrigation in Madras/Tamil Nadu prior to 1924 G Agreement = 15.193 lakh acres. (ii) Area for development as per the provisions of 1924 Agreement = 6.19 lakh acres. (iii) Area developed/under ongoing development beyond the entitlements contemplated in the 1924 Agreement between 1924 and 1990 = 2.06 lakh acres. H

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214Copy pinpoint214. Thus, the Tribunal under the above three heads together with the area developed/under minor irrigation, which it ascertained to be 1.25 lakh acres, determined the total area in Tamil Nadu which had been developed prior to 1924 along with those developed under ongoing development in the State beyond the entitlement contemplated under the 1924 Agreement upto 1990 at 24.71 lakh acres. As the narration to this effect would demonstrate, the Tribunal, while determining this area as a whole, did take note of the crop pattern, the locations thereof in the Basin with reference to the corresponding projects/schemes/channels, etc. and the area developed under minor irrigation.

215Copy pinpoint215. In the process of examination of the claim of the State of Karnataka with regard to the development of the irrigated areas in the C State in the Cauvery Basin, the Tribunal as in the case of Tamil Nadu did cast its scrutiny over the same four categories, namely, areas developed before the Agreement of 1924; those contemplated for development in terms thereof; those developed outside the Agreement up to 02.06.1990 and the areas which could be allowed to be irrigated on the principle of D equitable apportionment. It noted that at the commencement of the century, irrigation in the then State of Mysore was mainly from direct diversion channels from the rivers together with the system of tank irrigation which was mentionably quite widespread. As there was no reservoir, the waters of the Cauvery and its tributaries like Kabini, Hemawathy, Harangi and Suvaranwathi used to flow through the State E but their ultimate destination was the Delta area of the then State of Madras. The Tribunal mentioned that prior to the 1924 Agreement, irrigation in Mysore was mostly through Anicut Canal and minor irrigation and as admitted by the State of Tamil Nadu in their statement, Karnataka had developed only 3.14 lakh acres of land by 1924. Karnataka, however, F stated that its irrigated area under the projects at the time of the 1924 Agreement was 3.1 lakh acres which increased to 3.14 acres in 1928. On an analysis of the facts available on record, the Tribunal accepted the irrigated area of the State of Karnataka before 1924 to be 3.43 lakh acres which, of course, included areas covered by minor irrigation. G

216Copy pinpoint216. In respect of the entitlement of the States in terms of the Agreement of 1924, the Tribunal referred to, in particular, Clauses 10(iv), (xii), (xiii) & (xiv) to determine the new development of irrigation and extension of irrigation thereunder. It noted that there was no time limit for the envisaged development of irrigation under the various clauses of H

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A the Agreement and proceeded on the premise that once the construction on the project envisaged under any term/clause thereof had been started, that ought to be considered as permissible even though its completion date had spilled over 1974. The relevant provisions of the Agreement were referred to precisely to recall the entitlements of the parties thereto as defined thereby permitting extension/development of the areas for B irrigation in the time to come. To draw sustenance for the view that it was permissible to take account a project, the construction whereof had been started under any term/clause of the Agreement of 1924, though the completion date thereof was after 1974, the Tribunal referred to the decision of the U.S. Supreme Court in State of Wyomoing v. State of C Colorado (supra) as well as Article VIII (2)(a) of the Helsinki Rules to the effect that a project was entitled to priority from the date when the actual work of construction had begun and not from a date anterior to the time when there was a fixed and definite purpose to take it up and carry it through. On this basis, the plea of the State of Tamil Nadu to the contrary was negated and it was concluded that all the projects on which D construction had started prior to 1974 would be covered under Category II (entitlement under the terms of the 1924 Agreement) irrespective of the date of completion provided those projects did qualify otherwise under any of the clauses of the Agreement. From the materials on record, the Tribunal noted that the development achieved by Karnataka under the E 1924 Agreement till 1974 under Clauses 10(iv), (xii), (xiii) and (xiv) taken together was 2.15 lakh acres, though it was entitled to achieve 7.45 lakh acres. It also recorded that the planned irrigated area claimed by Karnataka under the Agreement was 14.18 acres (net), i.e., single crop and 17.04 lakh acres (gross) indicating single + second crop. These figures represented the statistics both prior to and after 1974. It was F noted that the State had claimed second crop area under the projects involved while setting out the gross plan area of irrigation as 17.046 lakh acres which included 2.862 lakh acres as second crop area.

217Copy pinpoint217. The Tribunal undertook an exhaustive exercise to examine the tenability of the claim under the aforementioned clauses of the G Agreement and accepted the area permissible for development of irrigation under the 1924 Agreement, i.e., Category II to be 7.23 lakh acres. As would be evident from the table, while allowing this figure, the Tribunal did take into account the variety of the crops involved and the extent of their coverage/acreage (which included Kharif Paddy, H Perennial Crops, Kharif semi-dry crop, Rabi-semi dry crop). The Tribunal

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recorded that like Tamil Nadu, the State of Karnataka had extended A irrigation by way of minor irrigation and there was extension of new areas under the existing projects and new projects after 1974.

218Copy pinpoint218. Vis-a-vis the areas developed/under ongoing development in the State beyond the entitlements contemplated in the 1924 Agreement upto the year 1990, the Tribunal marked the claim of the State of B Karnataka to be 20.98 lakh acres under various projects. Having regard to the date of the reference of the dispute to it, it adopted 1990 to be the cut-off year for considering the equities between the party-States in the matter of ascertaining the requirement of water. It, therefore, as a corollary, decided to take note of the developments that had taken place in between. Dealing with the plea of the State of Tamil Nadu that the relevant date for the apportionment should be 1974 when the period of 50 years from the date of execution of the Agreement of 1924 had expired, the Tribunal observed that no attempt had ever been made by the State of Tamil Nadu either before it or before this Court to contend that the areas which could be irrigated during the pendency of the proceedings should be those which had been developed by Karnataka only upto the year 1974 and on the other hand, the parties had pursued their claim of apportionment of water with reference to the constitution of the date of the Tribunal.

219Copy pinpoint219. With regard to the claim of the State of Karnataka in respect of the area of planned development as made by it in June, 1990 as 20.98 lakh acres, the Tribunal observed that it included areas developed prior to the Agreement of 1924, permitted in terms of the said agreement and developed or committed for development outside the Agreement upto June, 1990, though such areas had been planned and schemes had been put into execution much before the cut-off year. From the data furnished by the State of Karnataka in support of its area of development as in June 1990 to be 20.98 lakh acres, the Tribunal discerned that the additional area which was under progress for irrigation development outside the Agreement was 10.30 lakh acres, by that time.

220Copy pinpoint220. In the process of verification of the claim under this head, G i.e., areas developed or under ongoing development beyond the entitlement under the Agreement of 1924 and upto the year 1990, the Tribunal examined the relevant facts qua every individual project and returned a finding that the State of Karnataka was entitled to an area of 6.91 lakh acres. To this, an area of 1.26 lakh acres was allowed under minor H

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A irrigation. Thus, in all, the Tribunal allowed 18.85 lakh acres of area under Categories I, II and III, i.e., area existing under irrigation prior to 1974, permitted to be developed under the different provisions of the Agreement and the area and minor irrigation works during the period form 1924 to 1990.

221Copy pinpoint221. In arriving at this figure, the Tribunal did not take note of the development of the second crop in view of the scarcity of water in the Basin and considered each item of claim on the yardstick of merit and equity, judged on the touchstone of the entitlements under the Agreement and the ground realities. In many cases, it kept in mind the rainfall pattern and support and restricted the crop variety apart from suggesting the timings thereof. The scope of several projects were limited/curtailed on the index of 100% annual intensity of irrigation and ayacuts (irrigated areas) served by gravity flow were generally allowed and those tended by lift schemes were excluded. To ensure economy of consumption of water, crop pattern was also suggested. The Tribunal, however, clarified that though the claims of the States had been examined in respect of areas requiring irrigation in the four categories, none of these was to get any priority or precedence over the other in the matter of allocation of water and all were to be treated at par according to the respective need and necessity. E P.7 Assessment of water for “irrigation needs” in Tamil Nadu and Karnataka

222Copy pinpoint222. The Tribunal next delved into the exercise of making an assessment of the water required for irrigation for the areas delineated for the competing States. It noted that on the aspect of such requirement, F the States had produced documents including information provided in the common format and had examined witnesses who are experts in the field. It was indicated in particular that having regard to the demand of the States, i.e., 566 TMC by Tamil Nadu, 466 TMC by Karnataka, 100 TMC by Kerala and 9 TMC by Union Territory of Puducherry, some curtailments were indispensable in view of the total yield of the Basin G computed on 50% dependability at 740 TMC. The Tribunal in order to ensure equitable share to each State, adopted the following considerations for the purpose:- “i) The State of Tamil Nadu was having three paddy crops in the delta area as well as in some other areas. In the same field H

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they were having first Kuruvai and followed by Thaladi and in A the rest, Samba crop which takes a longer time to mature was being grown. After examining the records it appeared that Madras/Tamil Nadu was having Kuruvai followed by Thaladi in about 95,000 acres prior to the agreement of the year 1924 in the delta area. From the agreement of 1924 read with its B Annexures it shall appear that the State of Madras was allowed to extend double crop in the same field by 90,000 acres (70,000 acres in the old delta and 20,000 acres in the Mettur Project area). The total being 1,85,000 acres. The practice of growing double crop by the cultivators in the aforesaid area of 95,000 acres was being followed much before the execution of the agreement; it is difficult to direct to discontinue that practice. Same is the position so far the balance of 90,000 acres are concerned because that was permitted under the terms of the agreement and has been specifically mentioned in the Cauvery Mettur Project Report (1921) as well. All these aspects have been discussed in earlier chapters. But it is an admitted position that State of Madras/Tamil Nadu with the copious flows of water being available started growing double crop of paddy in the same field in different areas. The total of such areas has been discussed in earlier chapters. Similarly Karnataka also followed a practice of growing double crops which were not permitted by the agreement. In this background it is considered necessary in the end of justice not to take note for the purpose of apportioning the waters of inter-State river Cauvery in respect of growing second paddy crop or any other crop in the same field in the same agriculture year except in the areas in which these practices were being followed prior to 1924 agreement or was specifically permitted under the terms of the agreement. ii) The State of Karnataka under the terms of the agreement of the year 1924 was allowed to grow sugar-cane only on 40,000 acres which it has raised to about 70,000 to 90,000 acres. It is well known that crop like sugarcane requires much more water, affecting equitable distribution of waters. Therefore, note is being taken of areas for sugarcane only upto 40000 acres as provided in the agreement for the purpose of apportioning the waters of inter-State river Cauvery . H

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A iii) It is admitted position that both the States were having summer crop including summer paddy from the waters of river Cauvery. When there is so much scarcity of water in the basin, they have to be restricted from growing any summer paddy except in some area where it was being grown prior to 1924 agreement, even that is to be replaced by any light irrigated crop within the irrigation B season. iv) The delta of water claimed on behalf of the two States in respect of different crops including paddy have to be reduced in view of the new variety of paddy and other inputs which have been developed of late which require lesser delta of water. C v) Trans-basin diversion takes out the water of the basin to another basin. As such no note is being taken for the purpose of determining the need and the equitable share of the each State in the waters of the inter-State river Cauvery in respect of any trans-basin diversion already made or proposed for providing D extra waters. vi) Lift schemes will not be considered for water allocation.”

223Copy pinpoint223. The stand of the two States, i.e., Tamil Nadu and Karnataka, that admittedly the water requirement of the crops over the years (after E 1920) have been reduced with the new variety of seeds of paddy and semi-dry and dry crops was recorded. The position taken by the State of Karnataka that it was not going to grow wet crop which consumed more water in the new project areas and that only semi-dry crops could be grown thereafter and water would be provided according to the requirements of the plans was noted as well. After the examination of F the expert witnesses produced by the States and in course of the arguments, the Tribunal, by its order dated 12.11.2002, required the States to file affidavits furnishing details of the water requirement as well as the crops which they were growing with an indication of the minimum crop water requirement in view of the scarcity of water in river Cauvery. G Resultantly, Tamil Nadu filed its affidavit on 08.07.2004 (Ext. TN 1665) and Karnataka did so on 28.03.2003 (Ext. KAR 518) providing the details of, amongst others, the crops, the requirements of water including the Delta (water depth) required in different seasons in different projects and also supported the data furnished with various documents. It is necessary to state here that the acceptance of Tamil Nadu’s affidavit H has been seriously questioned before on the simon pure reason that the

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deponent was not made available for cross-examination. In defence of A the affidavit, it is the stand of the State of Tamil Nadu that it was a compilation of all that had been brought on record earlier. We have already dealt with the same. We only repeat that what is admissible having already been recorded on any public report shall alone be looked into.

224Copy pinpoint224. The Tribunal mentioned that till 1928, the States of Mysore B and Madras did resort to age old cultivation mostly of paddy crop wherever irrigation facilities were available in the Basin and whereas in Mysore, the paddy cultivation was provided irrigation through anicut canals or tanks, the same was the case also in Tamil Nadu where bulk of paddy cultivation was in the Cauvery Delta Area fed by Grand Anicut and through other Anicuts across Cauvery, Bhavani and Amaravathi and later on, with the installation of the Krishna Raja Sagara Reservoir (KRS) and the Mettur Reservoir as per the provisions of the 1924 Agreement, Mysore and Madras respectively extended their irrigation to new areas. The Tribunal noted that though after the construction of these two major reservoirs facilitating large scale irrigation facilities, the bulk of cultivation in both the States remained confined to Paddy crop, yet in Karnataka sugarcane which is a perennial crop was also resorted to.

225Copy pinpoint225. The Tribunal next took on record the existing crops of the two States as per the information furnished in their common formats. Qua Tamil Nadu, it recorded that in respect of the Cauvery Delta system, E “Kuruvai” and “Thaladi” crops of paddy and Samba crops were being grown. In other projects of the State, sugarcane, banana and other crops (groundnut and garden crop) had been introduced from 1980 onwards. Besides, in the Anicut system, summer paddy in some projects had also been introduced. Tamil Nadu in its common format indicated as well that the normal pattern in the Cauvery Basin was to raise the first crop of short duration paddy known as “Kurubhai” in June with the waters of South-West monsoon flowing down the river whereafter a second crop of paddy of medium term duration known as “Thaladi” was grown on the same area with the benefit of North-East monsoon to be harvested by January – February. It was stated that in the rest of the areas, only one single crop of paddy of long term duration known as “Samba” was grown from July/August to be harvested in December/January. In addition thereto, in other riverine tracks subject to availability of supply, two paddy crops were being grown followed by a cash crop like green gram and black gram. H

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226Copy pinpoint226. Karnataka, in its statement, elaborated on the crop pattern by indicating that in the Cauvery Basin in the State, Ragi, Jawar, Sesame, Groundnut, Redgram and short duration pulses were common Kharif crops (monsoon crops) under rain fed conditions and in some areas, where there were pockets of retentive soils or where late rain occurred, some Rabi crops like Jawar, Bengalgram and cotton were being cultivated. It was indicated as well that failure of rains was very common in these areas which were, as such, severely drought prone for which appropriate doses of irrigation were necessary to help increase the productivity and stability of the yield. It was explained that in the Cauvery Basin, particularly in the old irrigation projects in Karnataka, rice and sugarcane were the main crops under irrigation, but in years of inadequate monsoons, rice was discouraged and light irrigated crops like ragi, groundnut, etc. were grown in rabi/summer. Karnataka explained further that in the new irrigation projects, there was no provision to grow paddy even during Kharif season except in limited areas to a limited extent. It was underlined that irrigation in the State, including the Cauvery Basin D Projects, was aimed at extensive rather than intensive use of water to afford protection to the drought affected areas. It was also mentioned that in all the new projects, emphasis was on the growing of light irrigated crops and that cropping pattern was largely Kharif and to a limited extent Rabi. Karnataka stated that in the irrigated areas, rice was the pre- E dominant crop, whereas in the light irrigated areas, Ragi was the main crop followed by maize and potato and that depending on the availability of water, sugarcane, mulberry, coconut and other fruit crops were also grown. The Tribunal referred to the report of the National Commission of Agriculture, 1976 which mentioned that in India, rice was grown in about 40% of the irrigated area under all crops and that rice crop was the largest consumer of irrigation water accounting for 50% of the total irrigation supply, next to that it was wheat which consumed 15% followed by other cereals which accounted for 12% of the irrigation supplies. The report, as the Tribunal has noted, inter alia, recorded that in the southern States, wherever the heavier black cotton soil was located in the valleys and the lighter red soils were higher up, it was a good arrangement to confine growing rice in the valleys and reserving the lighter soils for light irrigated crops, as otherwise apart from consuming more water, due to greater percolation losses, the percolated water would make the heavy soil lower down soggy, thereby rendering it unfit for growing any crop other than rice. The Tribunal noted the view of the H

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National Commission on Agriculture that rice should be grown preferably A where there was good support of rainfall which had a permeability of less than 5 mm per day and that as water resources were scanty, irrigation supplies, more particularly to the low rainfall areas, was required to be put to the most economical use to extend the benefit of irrigation to as large a number of people as possible. This view was subscribed to by B Dr. M.S. Swaminathan, a renowned agricultural scientist, who was examined as an expert witness for the State of Tamil Nadu and who endorsed the recommendation of the Commission that a second rice crop, particularly in the non-rainy season, should be grown in an area only if the irrigation supplies cannot be put to better use. The witness, however, observed that as soil and climate in the Delta area in Tamil C Nadu was very conducive for growing paddy, there should not be any restriction on the number of paddy crops grown in the same field in the same agricultural year. The Tribunal was of the view that having regard to the principles of equitable apportionment, the approach in the matter of allocation ought to be balanced so much so that the upper riparian D States have equal right to develop along with those located in the downstream. It reminisced the stages of evolution of the principle of equitable apportionment, now recognized throughout the world, to meet the necessity of the dependent millions of riverine dwellers justifying that one crop in one agriculture year to every cultivator ought to be allowed. It also recalled its decision to permit growing of “Kuruvai” and E “Thaladi” along with “Samba” in the areas which were grown prior to the Agreement of 1924 as well as in the areas permitted by the Agreement of 1924. It, however, keeping in view the shortage of water in the Basin, reiterated that the second crop beyond the areas covered by the above two categories could not be permitted. Vis-a-vis Karnataka, the Tribunal F recounted that as paddy and sugarcane were more water consuming crops, they had been restricted to the areas for the period prior to 1924 as well as permitted under the terms of the Agreement. The evidence of Dr. I.C. Mahapatra, the expert witness for the State of Karnataka, that a suitable cropping pattern in the State would include ragi, pulses, oil seeds, sugarcane and one crop of rice along with horticultural crops of G fruits, flowers and useful areas was taken note of. His testimony to the effect that two crops of rice which were being cultivated in some parts of Karnataka ought to be discouraged was also accounted for. The Tribunal took on record the statement of this witness to the effect that Tamil Nadu had two or three crops of rice in different parts of the State H

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A as the temperature in the Cauvery Delta was not a limiting factor. The witness, however, emphasized on the rainfall pattern to design the cropping model depending on the relation to water availability. In response to a query, this witness observed that the farmers of Tamil Nadu were anxious to grow Kuruvai crop, as it was a short term crop and its cultivation process in putting fields saplings, etc. could be started by the B end of June. The Tribunal mentioned that for growing Kuruvai, the State of Tamil Nadu was primarily dependent on the release of water by Karnataka to Mettur reservoir.

227Copy pinpoint227. The Tribunal next adverted to the evidence of Dr. J.S. Kanwar, expert witness on behalf of the State of Karnataka, C who, in his affidavit, analyzed the various aspects of managing agriculture in the drought areas in the Cauvery Basin lying in the State. It contemplated area receiving less than 750 mm rainfall over 20% of the year as drought areas where the percentage of irrigated areas was less than 30% of the culturable area. The fact that 28 Taluks in Karnataka D have been identified as drought-prone areas by the Irrigation Commission within the Cauvery Basin was taken note of by the Tribunal, more particularly with reference to the details thereof as furnished in the affidavit of the witness. The testimony of Dr. Kanwar to the effect that the lands in Karnataka were mostly red sandy soil and red loamy soil which have low water holding capacity requiring artificial irrigation by way of artificial supplies and not by pattern of rainfall as is available in the drought areas of the States and that 28 drought prone taluqs, thus, necessarily needed protected irrigation for mitigating the effect of drought, was taken note of.

228Copy pinpoint228. The Tribunal marked the definition of “crop water requirement” as provided in the Government of India guidelines as the depth of water needed for achieving full production potential. The fact that the crop water requirement takes note of the topography of the land, water in-take characteristics of the soil and its irrigability class besides climatic conditions was noticed. It also took into account the observations of the CFFC with regard to the nature of crops which were grown in the two States. In Mysore, mostly all the crops were grown in the Kharif season alone, and the extent of rabi and summer crop was very small, and the areas under ragi, jowar, pulses, etc., which were mostly rain-fed, were predominant. For Mysore, the CFFC concluded that ragi was the major crop accounting for 44% of the area H

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followed by paddy claiming 21%. It mentioned as well that the crop A season in the State for paddy was from June - July to December-January.

229Copy pinpoint229. Vis-a-vis Tamil Nadu, the Cauvery Fact Finding Committee expressed that the Cauvery delta was the most important agricultural track and almost the entire area was under paddy. It was mentioned that agricultural operations in the Delta start with the advent of freshets B (rush of fresh water) in the river with the commencement of South- West monsoon and the Mettur reservoir is opened for irrigation only when the said monsoon actively sets in. It affirmed that in some areas, the first crop of paddy “Kuruvai” is grown with 105 days duration and after the harvest of this crop, a second shorter duration crop known as “Thaladi” is grown. It also mentioned about the long term crop “Samba” C of 180 days duration which was a major crop in the Delta. The Tribunal, in the above premise, observed that the practice was necessary to be changed and the water depths (Delta), which were provided by these States for their crops were required to be revised in order to ensure a fair deal to all the cultivators of the Basin States. Referring to the CFFC D Report, the Tribunal took cognizance of the fact that in the old channels in Karnataka, the Delta varied from 5.2 ft to 6.3 ft. and in the newer projects from 5.3 ft. to 6.6 ft. which suggested that even in the newer systems, the high Delta indicated excessive use. The Tribunal also did not disregard the observation of the CFFC that in the circumstances, if the Kharif Ragi could be grown under irrigated conditions instead of paddy, there would be saving in water without any economic detriment to the farmers. The fact that Karnataka had categorically stated before the Tribunal that in its new projects, the State Government was planning to raise only semi-dry crop, was noted. Vis-a-vis Tamil Nadu, the Tribunal recorded that in the case of the Cauvery Delta system which covered the major irrigated area, the Delta varied from 5.3 ft. in 1901 to 4.2 ft in 1971 and in the new projects like Cauvery Mettur project, Lower Bhavani and Mettur Canals, the Delta arrived in 1971 had been in the range of 4 ft. to 5.9 ft. The following recommendations of the Cauvery Fact Finding Committee to effect savings were taken note of as well:- G (a) Restricting the double crop paddy area. (b) Introduction of short duration variety in place of samba. (c) Growing crops requiring less water.

230Copy pinpoint230. As from the pleadings of the parties and the data furnished by them, it appeared to the Tribunal that excessive water was being H

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A used for raising of crops by the party States, it, during the course of hearing, on 12.11.2002, directed them as well as the Union Territory of Puducherry to file affidavits disclosing the steps already taken to reduce the requirement of water for cultivation and likely to be taken in near future indicating as well the minimum Delta that would be required for different crop varieties in their areas. B

231Copy pinpoint231. Accordingly, to reiterate, Karnataka and Tamil Nadu filed their respective affidavits marked as Ext. KAR-518 and Ext. TN–1665 in which they furnished details of the parameters normally used in the computation of crop water requirement, i.e., crop duration, ET crop, puddling requirements, percolation losses, effective rainfall and system efficiency. In the compilations so furnished, the States elaborated the particulars vis-a-vis their different projects/systems. Whereas Tamil Nadu recorded its crop water requirement to be 444.15 TMC for an area of 25.824 lakh acres with a separate demand of 68.9 TMC for an area of 3.445 lakh acres under minor irrigation and 10 TMC on the count of reservoir evaporation losses, Karnataka registered a claim of 381.71 TMC for cropped area of 25.27 lakh acres including therein 71.3 TMC for an area of 3.30 lakh acres under minor irrigation. In addition, Karnataka demanded 28.158 TMC for its proposed projects covering an area of 2.008 lakh acres to which the Tribunal responded by observing that these proposed projects could be considered subject to the availability of water after meeting the requirements of the existing and ongoing projects, domestic water, industrial water, environmental needs, etc.

232Copy pinpoint232. Before undertaking the actual computation of the water requirement on the basis of the information furnished by the States, the Tribunal dealt with the aspect of trans basin diversion of waters of river F Cauvery or its Tributaries. In this regard, it held a view that normally, all the available water in a river basin should be utilised to meet the in-basin requirements, i.e., different beneficial uses like drinking water for human and animal population, irrigation, hydro-power generation, industrial use and environmental protection, etc. and that after meeting such G requirements, if there is still any surplus of water, the same could be considered for transfer to other needy basin(s). However having regard to the admitted position that the yield in Cauvery was much less than the claims by different riparian States, the Tribunal eventually concluded that no note can be taken of the claims made by the States for trans basin diversion already made or proposed for any purpose. In arriving at H

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this determination, it noted that though in the Helsinki Rules of 1966, A reference had been made to basin States, yet it was of the opinion that diversion could not be resorted to by any one of the riparian States, at the cost of other lower riparian States affecting their irrigation, economy and social needs. The view expressed by the Krishna Water Disputes Tribunal and the Narmada Water Disputes Tribunal, in substance, is that diversion of water to another watershed may be permitted, but normally in absence of an agreement, the prudent course may be to limit the diversion to the surplus water left after liberally allowing for the pressing needs of the basin areas. Reference was also made to the observation of the U.S. Supreme Court in State of New Jersey v. State of New York (supra) that removal of water to a different watershed obviously must be allowed at times, unless the States are to be deprived of the most beneficial use on formal grounds. The comment of the Expert Committee, 1973 headed by Shri C.C. Patel, as set up by the Government of India, to study the report of the CFFC and suggest the scope of economy in the use of Cauvery Water, that since the basin itself was short of water, trans-basin transfers were not desirable, was given due weight as well.

233Copy pinpoint233. The Tribunal, after having determined the areas in the Cauvery basin over which the States of Tamil Nadu and Karnataka were entitled to irrigate and having as well determined the nature of crops grown and ought to be grown, keeping in view the criteria applied, E i.e., no double crop/perennial crop de hors the 1924 Agreement, no summer paddy and area under summer paddy existing prior to 1924 to be replaced by any semi-dry crop, proceeded to make the apportionment of the Cauvery Waters for irrigation. In undertaking its exercise, the Tribunal took note of the details of the various parameters furnished by F the States mainly in respect of two categories of crops, i.e., Paddy and its varieties and semi-dry crops (during Kharif and Rabi season). The parameters were enumerated thus:- Paddy Semi-dry crops

1. Crop duration Crop duration G

2. Puddling Main field preparation

3. E.T. Crop E.T. Crop (Evapo-transpiration) (Evapo-transpiration) H

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A 4. Percolation loss -

5. Effective rainfall Effective rainfall

6. System efficiency System efficiency.

234Copy pinpoint234. The States of Tamil Nadu and Karnataka, as per the orders B of the Tribunal, also filed their crop calendars. Qua Tamil Nadu, the duration of the three varieties of paddy were shown to be:- (i) Kuruvai 105 days (ii) Thaladi 135 days (iii) Samba 150 days C

235Copy pinpoint235. The Tribunal, with the replacement of different variety of seeds of Samba Paddy, observed that the duration of the said crop should be reduced to 135 days or near about that. It was also of the opinion that “Navarai’ crop of Tamil Nadu grown between the first week of December and last week of March ought to be replaced by any light D irrigated crop within the irrigation season of June - January. The aspect that identical economy of water should be practised in Amaravathi and Lower Bhavani Project was also stressed upon. The Tribunal recalled that the principal crops raised in the Cauvery basin in Karnataka were Kharif paddy, kharif semi-dry, i.e., ragi, maize etc; rabi semi-dry, i.e., E groundnut, pulses, etc. together with perennial crops like sugarcane, mulberry, garden crops, etc. besides summer crops, i.e., rabi/summer paddy and rabi summer semi-dry. In view of the scarcity of water, the Tribunal excluded summer paddy and summer semi-dry crops and recorded the view that it would be prudent on the part of Karnataka to go in for a paddy crop of medium duration which would give higher yield. The fact that the State Government had successfully persuaded the farmers to introduce short duration paddy variety of 120 to 130 days which resulted in saving of about 10% water compared to the medium duration of the variety was noted. It suggested that the State Government of Karnataka should also encourage, as far as possible, replacement of the area of Kharif paddy by Ragi which is a Kharif semi-dry crop. On the basis of the said analysis, the Tribunal clearly emphasized upon the need of reduction of crop period to ensure economic and prudent use of water and also suggested modification of the crop pattern in chime therewith. H

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236Copy pinpoint236. The Tribunal took into account the claims made by the States A for different quantities of water vis-a-vis the corresponding stages required for different crops, namely:-

1. Nursery Preparation

2. Puddling while preparing the main field. B

3. Evapo Transpiration

4. Percolation Losses

5. Effective rainfall and

6. System Efficiency C

237Copy pinpoint237. It was noted that in deciding the reasonable Delta (water depth) required for a crop, all these factors had a vital role. On the aspect of land preparation, the Tribunal observed that as per Karnataka, its crop water requirement in respect of semi-dry crops was about 100 mm for field preparation in respect of semi-dry crops before the crops are sown and that normally the operation of sowing the seed was undertaken when the field was wet for easy ploughing and as wetting of the soil by rainfall was not certain as it depended upon the natural rainfall, provision for wetting the soil was to be made so that the sowing of the crop as per the crop calendar would become possible. The Tribunal, in this regard, adopted the overall Delta for these crops as indicated in the project reports of Karnataka.

238Copy pinpoint238. With regard to puddling, the Tribunal marked the emphasis of Tamil Nadu on the requirement of water for this factor as most of the areas in the basin including the Delta grow paddy. The Tribunal, however, accepted the data furnished by the party-States in their respective statements as those were construed to be reasonable.

239Copy pinpoint239. On the criterion of Evapo-Transpiration – E.T. Crop, the Tribunal noted that the scientific computation of this parameter depended on various factors, namely, (i) temperature along with day and night weather conditions; (ii) elevation/altitude of the field; (iii) solar radiation; G (iv) sunshine hours; (v) wind velocity; (vi) humidity, etc.

240Copy pinpoint240. It gathered from the Government of India guidelines issued in May, 1984 that the effect of climate on crop water requirements was given by the reference of evapo-transpiration. It referred to the formula H

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A to compute the Evapo-Transpiration of a particular crop with the observation that the said factor for a particular crop grown in different regions would differ because of the variation in one or more or several ingredients thereof. Though the Tribunal took note of the dissension between the two States with regard to the applicability of the Food and Agriculture Organization, United Nations and the Government of India B guidelines, yet it eventually accepted the coefficient (a factor applied for computing evapo- transpiration) adopted by Tamil Nadu as worked out by the Coimbatore Agriculture University as it yielded a lower Delta as compared to the one worked out on the basis of Government of India Guidelines.

241Copy pinpoint241. As regards the percolation losses, it took note of the observation of the expert witness, Dr. I.C. Mahapatra, cited by Karnataka, that the same could be considerably reduced by proper puddling of the field. The Tribunal noted that percolation losses of water depended on the nature of the soil, climatic condition, etc. It recalled that the soil of D Karnataka was mostly red soil and at places was sandy in nature in contrast to the Tamil Nadu soil which was sandy loam specially in Delta, formed with the deposit of silt over ages and was not as porous as that of Karnataka. After taking into account the computations provided by Tamil Nadu for the old Delta system and the remaining basin area and having regard to the difference in the soil in the two locations, it allowed percolation losses per day at 2.5 mm. In respect of Karnataka, having regard to the fact that paddy was being grown in low lying areas and close to the river course for last several decades, percolation loss was fixed at 3 mm per day for that State.

242Copy pinpoint242. To compute the effective rainfall, the following recognized factors, namely, (i) topography of land; (ii) soil characteristics of the land proposed to be irrigated; (iii) initial soil moisture content of the land; (iv) ground water characteristics; (v) rate of consumptive use by a crop variety; (vi) intensity, timing and duration of rainfall; (vii) frequency and distribution of rainfall;(viii) climatic conditions; (ix) variety of crop and its stage of growth; and (x)water conservation of practices, etc., were taken note of.

243Copy pinpoint243. After referring to the Irrigation and Drainage paper no.25 on “Effective rainfall in irrigated Agriculture” published by the Food and Agriculture Organization of United Nations in 1974 dealing with the measurement of effective rainfall and evaluation of various methods

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with regard thereto, the Tribunal concluded that effective rainfall would vary from place to place and hence, its computed value would accordingly change. In this regard, the Tribunal noted that both the States had furnished their crop water requirement including effective rainfall in respect of their projects in consultation with the experts.

244Copy pinpoint244. On the aspect of system efficiency, the Tribunal registered that both these States as per the information furnished by them claimed that they had worked out their crop water requirement as was optimally required for different crops. Referring to the report of the National Commission on Agriculture, 1976, the Tribunal observed that in water short areas, giving fewer than optimum number of waterings to a large crop area at appropriate stages of crop growth would result in greater overall agricultural production and, therefore, planning projects with optimum Delta (water depth) would result in higher water demand and may not be necessary in water paucity areas compared to an irrigation system catering for fewer waterings which may cover larger areas and secure greater overall production. The Tribunal was, thus, of the view that the party-States should improve their crop water management practices which enfold several parameters involved in achieving the desired results. It suggested that both the States should improve the system efficiency to 65% in the existing projects which was possible and appropriate. In this regard, it noted the suggestion of the C.C. Patel Expert Committee of the year 1972 that efficiency should be 67% in both the States.

245Copy pinpoint245. For the State of Tamil Nadu, the Tribunal, by taking the system efficiency of 65%, worked out the Delta for 3 varieties of paddy crop in the old Delta area and Lower Coleroon System as hereunder:- F A. Old Delta Area: Delta (Water Depth) (i) Kuruvai - 4.00 ft. (ii) Samba - 3.40 “ (iii) Thaladi - 2.50 “ G B. Lower Coleroon Area: (i) Kuruvai - 3.80 ft. (ii) Samba - 3.20 “ (iii) Thaladi - 2.50 “ H

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246Copy pinpoint246. For the new Delta on the same yardstick, the following Delta was adjudged:- (i) Kuruvai - 4.10 ft. (ii) Samba - 3.90 ft. B (iii) Thaladi - 3.20 ft.

247Copy pinpoint247. Calculation of Delta for other project areas was also undertaken by applying system efficiency at 65% and finally, the water requirement for the State of Tamil Nadu, by adopting the deltas so C computed for main crops and applying the same to the cropped areas worked out on the need basis, was quantified at 390.85 TMC for an area of 24.71 lakh acres including reservoir losses of 10 TMC. In arriving at this figure, the Tribunal rejected the contention of Karnataka that the demand should be limited to 242 TMC as worked out in the Cauvery D Mettur Project Report of 1921. This was, amongst others, by accepting the explanation of Tamil Nadu that the state water requirement was only an estimated one based on very high duty factors which proved to be impractical and arbitrary and further the assessment of crop water requirement of each State was necessary to be made on present day standards. Further, the Tribunal was of the view that whatever be the claim of water made by the two States, it has to be worked out in such a manner that neither the crops starve nor the apportionment of the available water becomes an impossible task.

248Copy pinpoint248. In the process of assessing the water requirement of Karnataka, the Tribunal noted that the computations by it had been made adopting the Government of India guidelines. While recounting that the nature of soil as well as the crops grown in Karnataka were different from that of Tamil Nadu and that paddy and sugarcane require a lot of water, the Tribunal suggested improvement of system efficiency to 65% for the existing projects and 70% for the ongoing projects and further fixed the percolation losses to 3 mm per day keeping in view the opinions of various experts. For the computation of Delta, in respect of kharif paddy cultivation, the projects within the State of Karnataka in the basin were divided into two categories, (i) projects falling above Krishna Raja Sagara reservoir where rainfall was higher; (ii) those falling below Krishna Raja Sagara reservoir (including Krishna Raja Sagara Command) where the incidence of rainfall was comparatively less.

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249Copy pinpoint249. For the existing projects, the Delta for kharif paddy was worked out to be 4.6 ft. and for the ongoing projects as 4.25 ft. for the areas falling below Krishna Raja Sagara reservoir including KRS command. Pertaining to the areas falling above Krishna Raja Sagara the Delta was worked out to be 4.3 ft. for existing projects and 4 ft. for the ongoing projects. Similarly, the Delta of other projects as regards semi-dry crops cultivated both in Kharif as well as in Rabi season was worked out. For the perennial crop of sugarcane, 7½ ft. of Delta was permitted. 1 TMC of water for mulberry cultivation was also allowed. On the basis of the above parameters, the water requirement of Karnataka was computed to be 250.62 TMC for 18.85 lakh acres. Though the assessors had advised otherwise, yet the Tribunal was of the view that instead of keeping of water for the purpose of carry over storage, it would be better to allocate the same amongst the parties keeping in view the principle of equity for use by the concerned States for any beneficial purpose according to the individual State’s own priority. P.8 Assessment of water for “Domestic and Industrial Purposes” D in Tamil Nadu and Karnataka

250Copy pinpoint250. The Tribunal thereafter proceeded to assess the domestic and industrial water requirements of Karnataka and Tamil Nadu. It noticed that under the beneficial uses of waters of an inter-state river system, drinking water requirement has been given the first priority not only in our National Water Policy but also by the Courts of different countries. It noted the water supply requirement as recorded in the Indian Standard – “Code of Basic Requirement for Water Supply Drainage and Sanitation” IS.1172-1993 (4th revision) presented by Tamil Nadu in its note wherein a minimum of 72 to 100 litres per head per day (for short “phpd”) has been considered to be adequate for domestic needs of urban communities apart from non-domestic needs as flushing requirements. The said Code divided communities on the basis of population as also by the type of water supply delivery systems catering to their needs while specifying the water requirements which is enumerated as hereinbelow:- G 1) For commun ities with population up 40 (Min.) to20,0 00 an d without flushing system. 70 to 100 lts. phpd a) water supply through standpost b) water supply through h ouse service conn ection. H

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A 2) For commun ities with population 100 to 150 20,000 to 1,00,000 together with full lts. phpd flushing system. 3) For commun ities with population 150 to 200 lts. phpd above 1,00,000 togeth er with full flushing system.

251Copy pinpoint251. The Tribunal also noted the statistics furnished in the Manual of Water Supply and Treatment (3rd Edition) revised and updated by the Ministry of Urban Development, New Delhi - May 1999 setting out per capita water supply levels for designing schemes as under:-

Sl. No. Classification of tow ns/ Recom mended cities maximum w ater supply levels D (lpcd)

1. Towns provided with piped water supply but 70 without sewerage system

2. Cities provid ed with piped water supply where 135 sewerage system is existing/contemplated

E 3. Metropolitan and Mega cities provid ed with 150 piped water supply where sewerage system is existing/contemplated.

252Copy pinpoint252. Being of the view that detailed information regarding the population of various towns and cities, etc. in the Cauvery basin and also F the type of water supply delivery systems were not available in exactness, it assessed the drinking water requirement of urban population as hereunder: (i) 25% of urban population at 135 lts. phpd

G (ii) Remaining 75% of urban population at 100 lts. phpd

253Copy pinpoint253. Qua the drinking water supply needs for rural areas, it referred to the norms adopted by the Government of India in National Drinking Water Mission publication Chapter–I at 40 lts. phpd with a breakup as follows:- H

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A Purpose Quantity (lt. phpd) Drinking 3

hpd Cooking 5 Bathing 15 B Washing utensils & house 7 Ablution 10

In addition, 30 lts. phpd for animals in hot and cold desert/eco- system in the areas as mentioned therein was recommended. The C Tribunal, in the absence of livestock figures of the party-States and the Union Territory of Puducherry, premised that the animal population was nded equal to the rural human population and accorded 30 lts. phpd for animals w ater and 40 lts. phpd for human beings aggregating 70 lts. phpd in all. vels

254Copy pinpoint254. The Tribunal was of the view that as drinking water requirement would be spread over the entire area of the basin, it would be reasonable to assess that 50% of the drinking water requirement would be met from ground water sources as it is generally seen that wells and tube-wells in urban and rural areas cater substantially to the said need. It acknowledged that though the States were asked to project their population for the period from 2000 to 2025 for working out the drinking water requirement, it considered it to be apt to make such assessment taking 2011 to be the yardstick as it construed it to be sufficient. It also noticed that out of 100 units of water initially lifted for domestic use, only about 20 units are consumed and the remaining 80 units returned into the river basin. To this effect, the Tribunal referred to the CFFC report as well as the report of the Godavari Water Disputes Tribunal which reproduced the percentage of actual utilization qua various heads of uses as hereunder:-

Use M easurement G (i) Irrigat ion u se 10 0 p er cen t of t he qu antity div erted o r lifted fro m the river or an y of the tributaries or fro m any reservoir, sto ra ge o r canal an d 100 per cen t of ev aporatio n los ses in th es e storages.

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A (ii) Power use 100 per cent of eva poration losses in the storage.

iii) D omestic a nd 20 per cent of the quantity of water diverted municipal wa ter or lifted from the river or any of its supply within the tributaries or from any reservoir, storage or basin canal (iv) Industrial use 2.5 per cent of the qua ntity of water diverted within the basin. or lifted from the river or any of its tributaries or from any reservoir, storage or canal. (v) All uses outside 100 per cent of the quantity diverted or lifted the basin. from the river or any of it s tributaries or from any reservoir, storage or canal.

255Copy pinpoint255. The fact that the above observations were also quoted by the Krishna Water Disputes Tribunal in its report was noted.

256Copy pinpoint256. Vis-a-vis the requirement of the city of Bengaluru, the Tribunal concluded that from the information furnished by Karnataka, 64% of the city area lay outside the basin and only 36% thereof fell within it. It, therefore, proceeded on the basis that 1/3rd of the city area is located within the basin and 2/3rd beyond it. After referring to the materials furnished by Karnataka indicating the existing and ongoing drinking water schemes and its demand on that count for Bengaluru city as 30 TMC in a projection of 20 to 25 years, it estimated the same to be 14.52 TMC on the basis of its existing requirements as indicated by it as in 1990. The Tribunal was of the view that as 2/3rd of the Bengaluru city lay outside the basin, its drinking water requirement for that area only which lay within the Cauvery basin along with the remaining basin area and for drinking water requirements for urban and rural population, worked out by projecting the population of the basin for the year 2011, needed to be computed. It recalled that 25% of the urban population had been allowed 135 lts. phpd and 75% thereof 100 lts. phpd keeping in view the different categories of cities and towns falling in the Cauvery basin. It assigned 150 lts. phpd to Bengaluru city area falling within the basin and worked out the water requirement for the urban population to be 8.70 TMC. Vis-a-vis the rural population at the rate of 70 lts. phpd, H

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the water requirement was quantified at 8.52 TMC, thus making the A e total drinking water requirement to be 17.72 TMC. By assuming that 50% of the drinking water requirement would be met from ground water, it was estimated that the component of river supply including transit erted losses would be 8.75 TMC. The consumptive use, i.e., 20% of the total for human population including livestock, was, thus calculated to be 1.75 B e or TMC.

257Copy pinpoint257. By adopting the same norms, by and large, the domestic erted water requirement for the State of Tamil Nadu was computed. The total drinking water requirement for the projected population of 2011 was e or fixed at 21.98 TMC out of which 50% was supposed to be met by the ground water sources and 50% from surface water which came to 10.99 C lifted TMC. Judged by the consumptive use at the rate of 20%, 2.20 TMC r from was allocated to Tamil Nadu from surface water.

258Copy pinpoint258. The Tribunal vis-a-vis the industrial water requirement of Tamil Nadu recorded its demand of 7.43 TMC during 2001 and 13.60 TMC in 2025. Having regard to the fact that industrial development depended on several factors including energy, infrastructure and massive financial investments, it was of the view that the projection made by the State was on the higher side. The Tribunal held the opinion that as the industrial water requirement for the year 2011 was in contemplation, 100% increase on that count on the existing requirement in 1990 would be reasonable and, on that basis, worked out the same as 9.9 TMC out of which the consumptive use was assessed at 2.5%. To it was added the water requirement of the State for existing thermal power station at Mettur as 54.339 cusecs with consumptive use of 9.057 cusecs which equals to .28 TMC. It worked out the total consumptive use of water for industrial purposes at .53 TMC (.25 + .28). F

259Copy pinpoint259. As far as Karnataka is concerned, the Tribunal noted its existing industrial requirement with 3.20 TMC with the projected demand as 5.71 TMC and 8.02 TMC for 2000 and 2025 giving a growth ratio of 1.4 times. Noticing that the industrial development over the years had gathered a good momentum in the State and as the industrial water G requirement for the year 2011 was applied as the benchmark, the Tribunal awarded 6.40 TMC (3.20 x 2) towards this item of requirement. It was noted that the State had indicated that at present about 2.58 TMC would be met from ground water sources signifying that the total industrial H

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A water requirement from the Cauvery basin would be to the tune of 3.82 TMC (6.40-2.58) and by allowing consumptive utilisation at the rate of 2.5% of the total requirement, the consumptive water requirement would turn out to be .10 TMC.

260Copy pinpoint260. The domestic and industrial water requirements of the States B of Karnataka and Tamil Nadu were, thus, quantified at 1.85 TMC and 2.73 TMC respectively. P.9 Assessment of water for “Environment Protection and Inevitable Escapages into Sea” in Tamil Nadu and Karnataka

261Copy pinpoint261. On the aspect of water requirement for Environmental C Protection and Inevitable Escapages into sea, the Tribunal underlined the significance thereof by observing that the balance and purity of the environmental and ecological regime gets disturbed on account of injudicious use of available resources by human beings which is further aggravated by the explosion of population and distorted life style oriented towards consumerism. It took note of the fact that river water pollution on account of industrial development, deforestation leading to siltation of reservoirs, excessive use of irrigation water causing water logging and salinity, etc. were areas of concern so much so that as a result of insensible application of irrigation waters, fertile lands have suffered from water logging and salinity. It reminded itself of its role of apportioning available supplies for various beneficial uses of the competing States and while doing so also to take note of the environmental requirements and to reserve some quantity of water for maintaining the river regime in its various reaches right upto the mouth of the river Cauvery. It was of the view that during the crop seasons, regulated releases from reservoirs would flow not only into the canal system but also in the river lower down which would normally help in maintaining the river regime and its health but during the non-irrigation season which coincides with the non-monsoon summer months from February to May, conscious efforts were required to be made to ensure that there are minimum flows running in the system, particularly in the downstream. It referred to the testimony of Dr. B.B. Sundaresan, former Director, National Environmental Engineering Research Institute, that lack of adequate river flows is an overwhelming factor contributing to degradation of mangroves in Cauvery estuary as mangroves thrive only at the fresh water – sea water interface. The Tribunal noted the stand of Tamil Nadu and H Karnataka in this regard and recorded that right from 1924 onwards, a

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minimum flow of 1900 cusecs was being led into the river during non- A irrigation months which was sufficient to meet the minimum water requirement for environmental purposes. It, thus, assigned 10 TMC to be reserved from the common pool to meet the needs of environmental aspects from 1st February to 31st May to be maintained from Mettur reservoir downward in the river Cauvery every year. B

262Copy pinpoint262. On account of inevitable escapages into the sea, the Tribunal recorded that rainfall during the North-East monsoon season comes in the form of cyclonic storms with heavy downpours for some days with interspersed dry spell periods and as such, heavy surface flows during the months of October, November and December in the Delta region result in outflow into the sea as the flood flows. The Tribunal, on an assessment of the materials on record and taking note of the opinions of different experts, concluded that only those escapages which flow down into the sea as surplus at Lower Coleroon Anicut during the normal or below normal years of precipitation could be counted as inevitable escapages and quantified the volume to that effect as 4 TMC to be deducted from the normal yield of 740 TMC available for apportionment. P.10 Water allocation for the State of Kerala and Union Territory of Pondicherry (presently named as “Puducherry”)

263Copy pinpoint263. The Tribunal, at this juncture, turned to determine the allocations for Kerala and the Union Territory of Puducherry. E

264Copy pinpoint264. In apportioning the share of the State of Kerala, the Tribunal adverted to the report of the Cauvery Fact Finding Committee and recorded that so far as the first and second crops are concerned, the requirements of irrigation were nominal. From the chart appended to the report showing the weekly evapo-transpiration and rainfall, it construed F that the rainfall was so evenly distributed over the months of May to November and in excess of evapo-transpiration that only occasional assistance by artificial irrigation was required in the event of some failures in small periods. It noticed the stand of Kerala in its statement of case that agriculture was the basic occupation of the people in Kabini, Bhavani G and Pambar basins with the main crop in the low elevation being paddy, and plantation crops being grown in the middle and higher elevations. Kerala had claimed that in the absence of assured water supply from irrigation projects, excepting a few minor irrigation works serving limited ayacut, the agricultural crops in the Cauvery basin therein were dependent H

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A on the seasonal rainfall. Kerala had pleaded that after Malabar came over to it, it had submitted several schemes to the Government of India for approval but except one project, viz., Karapuzha in the Cauvery basin, no other scheme was approved because of the pending dispute on sharing of water. According to Kerala, it was for this historical fact that despite the availability and potential to use Cauvery water, the Malabar B area could not take up irrigation projects. The demand of Kerala in its statement of case was 92.9 TMC under different heads covering Kabini, Bhavani and Pambar sub-basins. The Tribunal noticed that out of this volume of water, 35 TMC was demanded by Kerala for trans-basin diversion to generate hydro-power. As a matter of fact, it claimed that its contribution to the Cauvery basin was about 20% of the total yield of 740 TMC and, thus, considering its peculiar needs as an over populated and industrially under developed State, its share of water works out as 99.8 TMC including non-consumptive use of Pambar HE Scheme – 5.6 TMC, Siruvani Water Supply Scheme for Coimbatore – 1.3 TMC in addition to their claim of 92.9 TMC. The demand of the State that it was entitled to the use of Cauvery water for irrigation for paddy crop wherever possible and plantation crops in the hill slopes in addition to the use of such water for the generation of hydro-electric power was minuted. The Tribunal took note of the stand of Tamil Nadu to limit the claim of Kerala on the basis of an Agreement of 1969 between the two States, E but negated the same and decided that its claim for its share of water was to be considered on merit. While adjudging the demand of Kerala, the Tribunal took note of the stand of Karnataka that in view of the sufficient rain during South-West and North-East monsoons, the first two paddy crops, namely, Virippu and Mundakan do not need any irrigation support; summer paddy crop should not be allowed; since 1975 F the overall area under paddy cultivation in the State had been declining and as a whole, it had sufficient hydro-power potential in large number and as such, transbasin diversion should not be allowed. The demurral of Karnataka based on the project reports of Kerala that it proposed to have three crops in all the projects, was also accounted for. The Tribunal, G in this context, reflected on the efforts made by Kerala to push its projects unsuccessfully over the years and its emphasis for the need to develop the hilly region of Wyned and Attappaty which were under developed. Before examining the tenability of the demand of Kerala, the Tribunal first set out the broad heads thereof as under:- H

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A Items TMC

1. Multi-purpose projects for hydro-power 35.0 generation and incidental use for irrigation outside the Cauvery basin involving trans- basin diversion. B

2. Medium irrigation schemes for covering 38.8 areas within the basin.

3. Minor irrigation works (existing, ongoing & 6.1 proposed).

4. Domestic water supply (ultimate 5.5 C requirement).

5. Industrial uses (ultimate requirement). 7.5

6. Non-consumptive use for Pambar Hydro- 5.6 electric Scheme within the basin.

7. Committed utilisa tion for Siruvani drinking 1.3 D water supply for the benefit of Tamil Nadu. Total 99.8

265Copy pinpoint265. Vis-a-vis the first item, the Tribunal held that the water of E inter-State river was meant for use by all the riparian States according to the reasonable needs and necessity of each State within the basin. While underlining that irrigation had always been given higher preference over generation of hydroelectricity unless water was surplus, it enumerated the water allocation priorities as prescribed by the National Water Policy of 2002 as hereinbelow:- F • Drinking water • Irrigation • Hydro-power • Ecology G • Argo-industries and non-agricultural industries • Navigation and other use.

266Copy pinpoint266. Rejecting the plea on behalf of Kerala in support of transbasin diversion based on the necessity and need of the whole State, the Tribunal H

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A held that if it is accepted that while determining the equitable share of a particular riparian State, even the shortage of water in the neighbouring basin which is outside the basin in question is to be considered, it would lead to an anomalous situation. In its view, though in the Helsinki Rules of 1966, there is a reference of basin states, yet the process of diversion could not be executed by one of the riparian States at the cost of other lower riparian States affecting their irrigation, economy and social needs. The observation of the Krishna Water Disputes Tribunal and the Narmada Water Disputes Tribunal in substance to the effect that in the absence of any agreement, the prudent course may be to limit the diversion to the surplus waters left after liberally allowing for the pressing needs of basin areas, was reiterated. The following observations of the U.S. Supreme Court in State of New Jersey v. State of New York (supra) were also recorded:- “The removal of water to a different watershed obviously must be allowed at times unless States are to be deprived of the most beneficial use on formal grounds. Diversion of water from one river basin to another is viewed with distrust and resisted by the basin population.”

267Copy pinpoint267. The Tribunal also referred to the observation of the Expert Committee headed by Shri C.C. Patel, the then Additional Secretary, E Ministry of Irrigation and Power, against trans-basin diversions in a water deficit basin. It, therefore, concluded that because of shortage of water, no note could be taken of claims made by the States for apportionment of water in respect of any trans-basin diversion already made or proposed to be made for any purpose. The Tribunal, thus, declined to allocate water for the projects involving transbasin diversion of waters. F

268Copy pinpoint268. Qua the demand for irrigation, domestic and industrial water use, the Tribunal, on a scrutiny of the project reports as furnished in the common format, catalogued the following aspects:- “(i) Out of the irrigation schemes projected, only one scheme i.e. Karapuzha project had been approved by the Government G of India. (ii) While the State had been emphasizing on spice and plantation crops, while placing demand, it had only submitted its requirement mainly for paddy and vegetable crop, besides indicating demand for domestic and industrial uses along with hydropower projects H involving interbasin transfer of water.

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(iii) As regards culturable command area (CCA) and ayacut under individual projects, the extent of proposed ayacut was much less than CCA because of the physical nature of the area, which was undulating in character. (iv) Main crop in the low elevation areas was paddy, whereas in the middle and higher elevations, it was plantation crops for which reasonable needs were to be assessed, so that the irrigated area could be made equal to the CCA for the State has proposed two paddy crops and one vegetable crop for the Kabini sub-basin. While the first crop “Virippu” was raised during May to September, water requirement whereof was met from South- West monsoon, the second crop “Mundakan” was raised from end of September to end of January with the support of North- East monsoon. The first was the rain fed crop and the second principally, an irrigated crop. The third crop “Puncha” grown from January end to early May was a summer crop, which however could not be allowed because of non-availability of rainfall support. (v) Though the State had proposed three paddy crops in their Attappady Project in Bhavani sub-basin noticing that this basin used to receive rainfall during South-West monsoon, which was weaker, only one paddy crop was to be allowed during North- E East monsoon, whereas the proposed paddy crop during South- West monsoon was recommended to be replaced by any semi dry crop. For Pambar sub-basin as well, though the State had proposed two paddy crops, one paddy crop and one semi dry crop was suggested. F (vi) No lift irrigation for raising paddy cultivation was allowable. (vii) Demand for domestic and industrial water use was excessive. The excessive demand for industrial use was restricted to 33% of the quantity of the existing actual utilization for project development till 2011. G (viii) The Tribunal having regard to its above responses and bearing in mind that the State had substantial tribal population in Cauvery basin area worked out the project-wise allocations based on socio-economic needs, agro-climatic conditions and availability of land for cultivation.” H

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269Copy pinpoint269. The analysis that followed reveals that the Tribunal did examine the demand vis-a-vis the different projects in the Kabini, Bhavani and Pambar basins in the context of their individual features and corresponding crop water requirement. While doing so, the Tribunal also, inter alia, examined the viability of the projects and excluded those which were not viable. In assessing the claims made, the Tribunal was particularly mindful of the crop pattern, annual intensity of irrigation, delta requirements, etc. with specific reference to rainfall support. In addition, demand towards minor irrigation schemes/projects in the aforenamed basins were accounted for and eventually, the irrigation water requirement of Cauvery basin, Bhavani basin and Pambar basin was assessed to be as hereunder: Kabini basin – 19.43 TMC Bhavani basin – 5.52 TMC Pambar basin – 2.95 TMC

270Copy pinpoint270. Noticeably, the Tribunal, while assessing the crop water requirement for the above three sub-basins, allowed allocations for “Virippu” and “Mundakan” paddy crops for Kabini sub-basin; kharif semi-dry and miscellaneous, “Mundakan” and perennial crop for Bhavani sub-basin and kharif semi-dry and miscellaneous and “Mundakan” for E Pambar sub-basin.

271Copy pinpoint271. While working out the domestic and industrial water requirement, the Tribunal considered the population projection for 2011 and adopted the ratio of urban and rural population at the ratio of 30:70. Against the drinking water requirement at a flat rate of 120 lts. phpd for the entire population, the Tribunal thought it reasonable to bifurcate the demand between the rural and urban areas and quantified it to be 120 lts. phpd for urban population and 70 lts. phpd for the rural population (human-being 40 lts. phpd + cattle 30 lts. phpd), thereby adjudging the drinking water requirement on the above norms for Kabini, Bhavani and Pambar sub-basins together at 1.53 TMC. As the actual consumptive use out of the above would be limited to only 20% and the remaining 80% would gradually flow back to the river system over a period of time, the actual allocated share on this head was, thus, assessed to be .31 TMC for the three sub-basins.