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

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272Copy pinpoint272. Dealing with the industrial water requirement, the Tribunal A took into account the existing industrial water use for different types of industries in Kabini basin estimated at .50 TMC which was expected to increase by another 33% by the year 2011 thus becoming .69 TMC. Working on the same lines, the industrial water need for Bhavani sub- basin and Pambar sub-basin was assessed at .21 TMC and .26 TMC B respectively making the total tally of 1.16 TMC. However, as the consumptive use for industrial purposes was limited to 2.5% of the volume, the Tribunal adjudged the share on this count to be .04 TMC as the remaining bulk would return to the river system.

273Copy pinpoint273. The Tribunal, on the basis of the population ratio inter se the States, awarded Kerala 1.51 TMC out of the savings of 45.08 TMC so as to enable it to use the same keeping in view its own priorities in public interest. Thus, the total water requirement of Kerala, taking into account all heads of demand, was quantified at 29.76 TMC rounded up to 30 TMC. In parting, the Tribunal clarified that the allocation was based on the needs established and accepted and did not signify the sanction of any project by it, as the clearance thereof under the law was to be granted by the State Government. Having regard to the historical facts that Kerala would take some time to utilize its full allocated share so much so that some unutilized water from its share would be flowing in Kabini, Bhavani and Amaravathi reservoirs and recalling that the Tribunal had not taken note of the claim of Tamil Nadu of its irrigated area of second/double crop totaling 2,80,800 acres, it was provided that till such time Kerala would be in a position to utilize its allocated share of water, the unutilized water from its share be permitted to be used by Tamil Nadu. While holding so, the Tribunal observed that this temporary arrangement of use by Tamil Nadu of the unutilized water from the share of Kerala, however, would not confer any right on it.

274Copy pinpoint274. Adverting to the claim of the Union Territory of Puducherry for the Karaikal region, the Tribunal recorded that the economy of that region was predominantly based on agriculture and that due to its close proximity to the sea, the ground water was generally brackish and unsuitable for drinking and irrigation purposes. The claim of the Union Territory for its water requirement vis-a-vis the crop grown as extracted hereinbelow was noticed:-

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A S. No. Crop Area Water Requirement (hectares) (Mcft.) (1) Samba (Single 4760 3006 Crop)

B (2) Kuruvai (Khariff 6230 2868 double crop) (3) Thalady (Rabi – 6230 3366 double crop) Total 9240 C

275Copy pinpoint275. Thus, the total area summed up to 42,533 acres and the total water requirement was estimated at 9.355 TMC including 115 mcft for drinking water. The Tribunal marked that there was, in fact, no denial of the irrigated area claimed by the party-States, though Karnataka, in its rejoinder, did not admit its crop pattern as projected and the corresponding water requirement. The fact that the irrigated area of 43000 acres had also been endorsed by the Cauvery Fact Finding Committee was duly noted. Further, the aspect that the Union Territory of Puducherry, due to its own compulsions, did not have any scope for extension of the said area also did not miss the attention of the Tribunal and, thus, on a totality of the above considerations, its claim for second crop was allowed in particular keeping in view the geographical and climatic conditions and the soil features of the territory.

276Copy pinpoint276. Noticeably, the State of Tamil Nadu, while arguing its demand of water as well as the area under irrigation, had indicated its stand in respect of the Union Territory of Puducherry and provided the following particulars to demonstrate the overall need of the Union Territory:-

S. No. Sector Pondicherry Area in Water lakh acres required in G TMC (1) (2) (3) (4) A Domestic and livestock need 0.356 B Environmental/Ecological 0.000 Needs H

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A ment C Irrigation r equirement for the 0.430 6.840 area under Priority – I to IV C Industrial & Power 0.070 Total 0.430 7.266 B

277Copy pinpoint277. From this, the Tribunal construed that not only Tamil Nadu admitted that the gross irrigated area in Puducherry was 43000 acres, but also measured its total water requirement to be 7.266 TMC.

278Copy pinpoint278. In respect of the crop water requirement of Puducherry in particular, the Tribunal observed that the extent of area under Kuruvai, Samba and Thaladi was 15,388, 11,757 and 15,388 acres respectively out of which the first crop (Kuruvai and Samba) covered 27,145 acres and the second crop (Thaladi) was raised over 15,388 acres. The Tribunal also mentioned that the Karaikal region of the Union Territory of Puducherry was situated at the tail end of the Tamil Nadu Delta system and for all practical purposes, could be taken to be the natural extension of the Cauvery Delta system of Tamil Nadu and, therefore, the cropping pattern as well as the water requirement for the crops did also broadly match. It was, however, indicated that the Karaikal region was in the close proximity of the sea for which the effect of sea water on the cultivable area was an aspect which needed special consideration. This was, as the Tribunal underlined, to ensure that the brackish water remained well below the crop root zone for which liberal provision for irrigation water was warranted. Though it noted that the North-East monsoon helps in leaching the salt deposited over the land as well as in the sub-soil, yet having regard to the above factors, a volume of 6.35 F TMC by way of crop water requirement was allowed.

279Copy pinpoint279. For domestic and industrial water requirement of the Union Territory, the Tribunal noted that the total population of its Karaikal region, in as projected for 2011, was to be applied. It construed the ratio of urban to rural population to be 35:65 and by applying the yardstick of 120 lpcd G 4) against urban domestic water supply requirement and 70 lpcd for the rural population including livestock, it worked out the total domestic water 356 requirement to be .225 TMC. Though 80% of the domestic water supply 000 was generally expected to return back to the river system, yet in the case of Karaikal region, this norm was not applied as the water would H

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A not take that course but would flow into the brackish sub-soil or into the sea. The Tribunal, thus, allowed the full quantity of .225 TMC for domestic water requirement.

280Copy pinpoint280. In respect of its industrial water requirement, the Union Territory of Puducherry, in its common format, indicated its demand to be .034 TMC. The Tribunal was of the view that by 2011, this demand would increase by about 33% to become .045 TMC. As on the analogy of reasonings qua domestic water requirement, the industrial water taken for use from the river system will not return to it and, hence, the full quantity, i.e., .045 TMC was accepted. Thus, the total water requirement of the Union Territory of Puducherry towards irrigation, domestic water supply and industrial use was assessed at 6.62 TMC.

281Copy pinpoint281. Added to this, out of the balance water of 45.08 TMC on savings, as per its population in the year 1991, the bench mark used for the other States, its share was worked out to be .22 TMC. The total allocation of water for Puducherry on all these counts, thus, totalled to D 6.84 TMC which was rounded upto 7 TMC. It was mentioned that this quota allocated to Karaikal was required to be delivered at the seven locations at the inter-state crossing points (between Tamil Nadu and Karaikal) of 7 rivers, namely, Nandalar, Nattar, Vanjiar, Noolar, Arasalar, Thirumalairajanar and Pravadayanar. With regard to the monthly delivery E of supplies, it was noted that Tamil Nadu and Union Territory of Puducherry had an agreement which had been working satisfactorily and, thus, it was ordered that the same would continue. It was indicated that in case of any disagreement, the matter could be resolved by the Cauvery Management Board.

F P.11 Final water allocation amongst competing States

282Copy pinpoint282. Having dealt with the allocations for the individual States as above, the final calculations were set out in a tabular form as herein below:- States T ot al G K erala Karn ata ka Tamil UT of Nadu Pon cid h erry i) Area 1 .93 1 8.85 24.71 0.43 45.92

ii)Irrigat ion 2 7.9 0 2 50 .6 2 390.8 5 6.35 675.7 2 requirement H

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A iii) Domestic 0.35 1.85 2.73 0.27 5.20 and Industrial water requirement projected for 2011 B iv) Water - - - - 10.00 requirement for environmental protection v) Inevitable - -gv - - 4.00 escapages into C sea vi) Share in 1.51 17.64 25.71 0.22 45.08 balance water Total 29.76 270.11 419.29 6.84 740.00 D Say 30.00 270.00 419.00 7.00 726+14 =740

283Copy pinpoint283. Simply put, the final allocated shares of the competing States together with the provisions for environmental protection and inevitable escapages into sea, as determined by the Tribunal, can be reflected thus:- E

1. Kerala 30 TMC

2. Karnataka 270

3. Tamil Nadu 419

4. Union Territory of Pondicherry 7 F

5. Environmental protection 10

6. Inevitable escapages into sea 4 __________ 740 TMC

284Copy pinpoint284. Significantly, in computing the balance quantity of 45.08 TMC G which the Tribunal distributed on the basis of the respective population figure, the Tribunal attributed this quantum to the proposed carry over 92 storage of 10 TMC, each for the States of Karnataka and Tamil Nadu, 5.7 2 as recommended by the Assessors as well as a volume of 25.08 TMC that was available in view of the limitations prescribed in allotment. H

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A According to the Tribunal, on a consideration of different aspects, it was decided to keep 20 TMC (10 TMC x 2) as advised by the Assessors as carry over storage, to allocate the same together with the other 25.08 TMC available to the States on the principle of equity, leaving them at liberty to utilize the same as per their own priority. B P.12 Monthly schedule for delivery of water at inter-State contact points

285Copy pinpoint285. The Tribunal next dwelt upon the monthly schedule of flows at the inter-State contact point between Karnataka and Tamil Nadu to ensure timely supplies for successfully raising crops in different crop seasons. It noticed that for the fields in which paddy was grown by the State of Tamil Nadu, the nurseries were put in the field between middle of June to middle of July followed by transplantation during last week of July onwards. Having regard to the fact that in Tamil Nadu, the first crop of “Kuruvai” was harvested in September followed by the second crop “Thaladi” to be harvested in January-February and that the main crop “Samba” is transplanted in the month of August- September and harvested in December, the Tribunal prepared a schedule of the monthly releases from mid-June to end of January spanning over the agricultural season so that the interests of both the states of Tamil Nadu and Karnataka were taken care of. In drawing up the monthly schedule of release of water, the Tribunal kept in mind that in normal years, such release would not pose any difficulty to the State of Karnataka and at the same time would meet the requirement of Tamil Nadu. The inter- state contact points were enumerated thus:- i) B etw een K er ala a nd K a rna taka : K abin i reser vo ir s ite ii) B etw e en K era la a nd T am il : F N a du ( a) Fo r B h avan i s ub -b a sin : Chav a diy oo r G .D . site

I t is rep or ted tha t Ch a va d iyoo r gau ge s ite w as b eing op erat ed b y th e State of K e ra la w hich c ou ld b e re v ive d for int er -S ta te G ob servatio ns . ( b) F or P amb ar s ub -b as in : A ma ra va thi re se rvo ir sit e iii) B etw e en K ar na t a ka and T a m il : Billigu n du lu G .D . site/an y N a du oth er site on c o mm o n bo rd er iv) B etw e en T a m il N adu and : Seven C ont act p oin ts” H P o nd ic her ry

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286Copy pinpoint286. It was mentioned that the identified inter-state contact point between Karnataka and Tamil Nadu was at Billigundulu gauge where the discharge site was maintained by the Central Water Commission, an independent organization of the Central Government having due expertise in the river gauging techniques. The Tribunal was of the opinion that the gauge and discharge observation stations where direct observations can be made would be a better location than a reservoir site where the measurements can be taken only in an indirect way. The Regulatory Authority was, however, left at its discretion, if needed, to require the Central Water Commission, in consultation with the State Governments, to establish new gauge and discharge station on the common border. The unutilized water allocated to the State of Kerala, which would be flowing to the lower States, namely, Karnataka and Tamil Nadu and the existing reservoirs of Kabini, Bhavani and Amaravathi from which the distribution was ordered was to be monitored by the Cauvery Management Board. The fact that the annual allocation of 7 TMC for the Union Territory of Puducherry would be required to be delivered by D Tamil Nadu over a period of one year at 7 different contact points, as in the past, was indicated. The calculations of the flow required to be delivered at the inter-state site were summed up as hereunder:- T MC “1 ) T he to ta l yie ld of th e ba si n at 5 0% 74 0 d ep e nd a bility E 2) Y ie ld a t M e ttur r es er v oir . 50 8 ( R e f : T N DC V ol. X V , p a ge 8 7 a n d T N S ta te m en t N o. 5 7, ite m 1 da t ed 1 0. 2 .20 05 ) 3) Y ie ld g e ne ra ted in T a m il N a du a re a a bo ve 25 M e ttur r es er v oir ( R e f : T N S ta te m e nt N o. 5 7, ite m 4 a n d T N S ta te m en t 86 , ite m 1 ) F 4) ( a ) Y ie ld a va i la ble be lo w M e ttur ( 74 0– 50 8) 23 2 ( R e f : T N N ote 46 , An ne x ur e -3 , p a ge 54 ; T N S ta te m e nt 8 3, ite m 1) ( b) D ed uc ti ng f oll ow ing us es :- i) Al loc a tio n to K e ra la in B h ava n i s ub -b a sin - 6 TMC ii) A lloc a tio n to K e r a la in G P a m ba r sub - ba sin - 3 TMC sit e iii) A lloc a tio n to UT of 20 e /a n y P o nd ic he r ry - 7 TMC mm o n iv )I ne v ita ble e sc a pa g es in to se a - 4 TMC _ _ __ __ __ 20 T MC H

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A (c) Balan ce ava ilable for use i n Tamil Nadu 21 2 (232–20) 5) Tota l of water availabl e for us e in Tamil 23 7” Nadu (2 12 +25 )

287Copy pinpoint287. Deducing therefrom and having regard to the allocated share B of 419 TMC, the Tribunal ordered that the balance 182 TMC (419-237) + 10 TMC for environmental protection, i.e., 192 TMC was to be delivered by the State of Karnataka at the inter-State border. In this regard, the three components contributing to the annual quantum of water to be delivered by the State of Karnataka at the inter-State contact point were identified as herein below: C “i) Flows coming in the river Cauvery from the uncontrolled catchment of Kabini sub-basin downstream of Kabini reservoir, the catchment of main stream of Cauvery river below Krishnarajasagara, uncontrolled flows from Shimsha, Arkavathy and Suvernavathy sub-basins and various other small streams. D ii) Regulated releases from Kabini reservoir; and iii) Regulated releases from Krishnarajasagara reservoir.”

288Copy pinpoint288. It was clarified as well that the delivery of 192 TMC of water at the inter-state contact point was to be maintained in a normal E year and that if there was any deficiency in the quantum of inflows, it would be open to the Cauvery Management Board/Regulatory Authority to suitably adjust the flows. The monthly schedule of deliveries finally prepared in consultation with and on the basis of the advice of the assessors at Billingundulu was designed thus:- F “Month TMC Month TMC June 10 December 8 July 34 January 3 August 50 February 2.5 G September 40 March 2.5 October 22 April 2.5 November 15 May 2.5 Total 192 TMC” H

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289Copy pinpoint289. While clarifying that Kabini’s flows of the unutilized water out of the Kerala’s allocated share, from Kerala to Tamil Nadu would be in addition to the flow of 192 TMC as per the monthly schedule till Kerala develops its own potential to use the same, the Cauvery Management Board/Regulatory Authority was also required to set up its mechanism and further devise its method to determine the quantum of unutilized water to be received from Kerala by Tamil Nadu through Kabini and its tributaries and ensure the delivery thereof in Tamil Nadu at the common border. The Regulatory Authority was also required to monitor flows from Krishna Raja Sagara reservoir as also from Kabini and other tributaries meeting Kabini below Krishna Raja Sagara upto Billigundulu site. It was again clarified that the monthly schedule of deliveries was on the basis of the flow in a normal year giving a total annual yield of 740 TMC at 50% dependability which was a theoretical computation based on the crop water requirement of different projects and the computed withdrawal therefor along with the data of inflows into the various reservoirs as furnished by the party-States in their common formats. However, the Tribunal was not unmindful of the fact that rainfall during any monsoon season was likely to vary in space and time and also in intensity and duration which would have impact upon the pattern of flows in different sub-basins and which may not tally with the flows considered for working out the above schedule. In this premise, the Tribunal suggested an entity, namely, the Cauvery Management Board/ E Regulatory Authority to monitor, with the help of the Cauvery Regulation Committee and the concerned State Authorities, the available storage position in the Cauvery basin along with the trend of rainfall and make an assessment about the likely inflows which may be available for distribution amongst the party-States within the overall schedule of water deliveries as suggested. It was also made clear that in case the yield was less in a distress year, the allocated shares would be proportionately reduced amongst the States involved by the Regulatory Authority. Having regard to the fact that the irrigation season starts from 1st of June and the normal date of onset of South-West monsoon in Kerala is of the same date so much so that any delay in the advent of the said monsoon would affect the inflows and consequently dislocate the schedule of releases from Krishna Raja Sagara and Kabini reservoirs, the Tribunal felt it to be advisable that at the end of May each year, as much storage as was possible during a good year should be consciously conserved as that would help in adhering to the schedule of monthly deliveries. The H

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A Tribunal, however, authorized the Cauvery Management Board/ Regulatory Authority to relax the schedule of deliveries and get the reservoirs operated in an integrated manner through the States to minimize any harsh effect of a bad monsoon year in the event of two consecutive distress years. The Cauvery Management Board/Regulatory Authority was also required to monitor the entire spectrum of monthly availability of storages and rainfall pattern vis-a-vis the schedule of monthly flows to be delivered at Billigundulu/inter-State contact point for a period of five years and to effect the necessary adjustments in the monthly schedule in consultation with the party-States and with the help of the Central Water Commission without, however, changing the annual allocation awarded to the parties. In suggesting these measures, the Tribunal was conscious that there was no element of human control on the happenings in nature and that only an attempt was to be made to ensure beneficial use of the available quantum of flows in any year and to distribute the same for the benefit of the basin as a whole by integrating the releases from different storage reservoirs. A caveat was also sounded to the upper riparian State to desist from any action so as to affect the scheduled deliveries of water to the lower riparian States. Q. Mechanism (Cauvery Management Board) for implementation of Tribunal’s decisions

290Copy pinpoint290. The Tribunal also did devise the machinery for implementation of its final decisions/orders and in doing so, took note of Section 6A introduced in the 1956 Act by Act 45 of 1980 with effect from 27.08.1980 empowering the Central Government to frame schemes, if any, in respect of such implementation. It also noticed the amendment to Section 6 of the Act whereby in terms of Section 6(2), the decision of the Tribunal after its publication in the Official Gazette was to have the same force as an order or decree of the Supreme Court. In this statutory background, the Tribunal was of the view that any direction to frame a scheme for the implementation of its decision would result in an anomalous situation. However, in its view, as the Inter-State Water Disputes (Amendment) Act, 1980 did not provide for details with regard the to constitution of the machinery and its functions, it had the implied power to make recommendations in that regard for implementing its decision. It, thus, recommended that the Cauvery Management Board be constituted on the lines of Bhakra Beas Management Board by the Central Government. It underlined that unless an appropriate mechanism was set up, the prospect of implementation of its decision would not be secured.

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It further recommended that as its award involved regulation of supplies from various reservoirs and other important nodal points/diversion structures, it was imperative that the mechanism, Cauvery Management Board, be entrusted with the function of supervision of the operation of reservoirs and the regulation of water releases therefrom with the assistance of the Cauvery Water Regulation Committee (to be constituted by the Board). It then suggested the constitution of the Cauvery Management Board, its composition, its items of business, etc. It also recommended the composition of the Cauvery Water Regulatory Committee and outlined its functions. The Cauvery Management Board was also required to submit an annual report to the four party-States before the 30th of September of each year. The Tribunal prescribed guidelines for the Cauvery Management Board which besides being exhaustive were intended to touch upon the functional details relating to the supplies out of the allocated shares. We do not intend to state the guidelines laid down by the Tribunal as we shall be addressing to many an aspect while analyzing the concept of the scheme as envisaged under D Section 6.1 of the 1956 Act R. Final order of the Tribunal

291Copy pinpoint291. On the culmination of the above exercises, the Tribunal formulated its final order with its determinations and directions on all the facets of the dispute. As the layout of the final order portrays the E summation of the adjudication made, it would be apposite to quote the same as hereunder for immediate reference: “Final Order and Decision of the Cauvery Water Disputes Tribunal The Tribunal hereby passes, in conclusion the following order:- F Clause-I This order shall come into operation on the date of the publication of the decision of this Tribunal in the official gazette under Section 6 of the Inter-State Water Disputes Act, 1956 as amended from time to time. G Clause-II Agreements of the years 1892 and 1924: The Agreements of the years 1892 and 1924 which were executed between the then Governments of Mysore and Madras cannot be held to be invalid, specially after a lapse of about more H

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A than 110 and 80 years respectively. Before the execution of the two agreements, there was full consultation between the then Governments of Madras and Mysore. However, the agreement of 1924 provides for review of some of the clauses after 1974. Accordingly, we have reviewed and re-examined various provisions of the agreement on the principles of just and equitable B apportionment. Clause-III This order shall supersede – i) The agreement of 1892 between the then Government of C Madras and the Government of Mysore so far as it related to the Cauvery river system. ii) The agreement of 1924 between the then Government of Madras and the Government of Mysore so far as it related to the Cauvery river system. D Clause-IV The Tribunal hereby determines that the utilisable quantum of waters of the Cauvery at Lower Coleroon Anicut site on the basis of 50% dependability to be 740 thousand million cubic feet- TMC (20,954 M.cu.m.). E Clause-V The Tribunal hereby orders that the waters of the river Cauvery be allocated in three States of Kerala, Karnataka and Tamil Nadu and U.T. of Pondicherry for their beneficial uses as mentioned F hereunder:- i) The State of Kerala - 30 TMC ii) The State of Karnataka - 270 TMC iii) The State of Tamil Nadu - 419 TMC iv) U.T. of Pondicherry - 7 TMC G ________ 726 TMC In addition, we reserve some quantity of water for (i) environmental protection and (ii) inevitable escapages into the sea as under:- H

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(i) Quantity reserved for environmental – 10 TMC A protection (ii) Quantity determined for inevitable – 4 TMC escapages into the sea 14 TMC Total (726 + 14) 740 TMC B Clause – VI The State of Kerala has been allocated a total share of 30 TMC, the distribution of which in different tributary basins is as under: (i) Kabini sub-basin - 21 TMC C (ii) Bhavani sub-basin - 6 TMC (iii) Pambar sub-basin - 3 TMC Clause – VII In case the yield of Cauvery basin is less in a distress year, the D allocated shares shall be proportionately reduced among the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry. Clause VIII E The following inter-State contact points are identified for monitoring the water deliveries: i) Between Kerala a nd Karnataka : Kabini reservoir site ii) Between Kerala an d Tamil - Nadu : C havadiyoor G.D. site a) F or Bhavan i sub-basin It is reported that Chavadiyoor gauge site was being operated b y t he S tate of Kerala which could be revived for inter-S tate : Amaravat hy reservoir observations. sit e

b ) For Pambar sub -b asin iii) Between Karnataka and Tamil : Billi gu ndulu G.D. Nadu sit e/an y other site on commo n bord er iv) Between Tamil Nadu and : Seven Contact points Pondic herry as alread y in operation” H

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A Clause-IX Since the major shareholders in the Cauvery waters are the States of Karnataka and Tamil Nadu, we order the tentative monthly deliveries during a normal year to be made available by the State of Karnataka at the inter-State contact point presently identified B as Billigundulu gauge and discharge station located on the common border as under: Month TMC Month TMC June 10 December 8

C July 34 January 3 August 50 February 2.5 September 40 March 2.5 October 22 April 2.5 D November 15 May 2.5 192 TMC The above quantum of 192 TMC of water comprises of 182 TMC from the allocated share of Tamil Nadu and 10 TMC of water allocated for environmental purposes. E The above monthly releases shall be broken in 10 daily intervals by the Regulatory Authority. The Authority shall properly monitor the working of monthly schedule with the help of the concerned States and Central Water F Commission for a period of five years and if any modification/ adjustment is needed in the schedule thereafter, it may be worked out in consultation with the party States and help of Central Water Commission for future adoption without changing the annual allocation amongst the parties. Clause X G The available utilisable waters during a water year will include the waters carried over from the previous water year as assessed on the 1st of June on the basis of stored waters available on that date in all the reservoirs with effective storage capacity of 3 TMC and above. H

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Clause – XI A Any upper riparian State shall not take any action so as to affect the scheduled deliveries of water to the lower riparian States. However, the States concerned can by mutual agreement and in consultation with the Regulatory Authority make any amendment in the pattern of water deliveries. B Clause-XII The use of underground waters by any riparian State and U.T. of Pondicherry shall not be reckoned as use of the water of the river Cauvery. C The above declaration shall not in any way alter the rights, if any, under the law for the time being in force, of any private individuals, bodies or authorities. Clause-XIII The States of Karnataka and Tamil Nadu brought to our notice that a few hydro-power projects in the common reach boundary are being negotiated with the National Hydro-Power Corporation (NHPC). In this connection, we have only to observe that whenever any such hydro-power project is constructed and Cauvery waters are stored in the reservoir, the pattern of downstream releases should be consistent with our order so that the irrigation requirements are not jeopardized. Clause-XIV Use of water shall be measured by the extent of its depletion of the waters of the river Cauvery including its tributaries in any manner whatsoever; the depletion would also include the evaporation losses from the reservoirs. The storage in any reservoir across any stream of the Cauvery river system except the annual evaporation losses shall form part of the available water. The water diverted from any reservoir by a State for its own use during any water year shall be reckoned as use by that G State in that water year. The measurement for domestic and municipal water supply, as also the industrial use shall be made in the manner indicated below:

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A Us e M easurement

Domestic and municipal Water B y 20 per cent of the quantity supply of water diverted or li fted from the ri ver or any of its tributaries or from any reservoir, storage B or canal . Indust rial use B y 2.5 per cent of the quantity of water diverted or lifted from the river or any of i ts tributaries or from any reservoir, storage or canal . C Clause-XV In any riparian State or U.T. of Pondicherry is not able to make use of any portion of its allocated share during any month in a particular water year and requests for its storage in the designated reservoirs, it shall be at liberty to make use of its unutilized share D in any other subsequent month during the same water year provided this arrangement is approved by the implementing Authority. Clause-XVI

E Inability of any State to make use of some portion of the water allocated to it during any water year shall not constitute forfeiture or abandonment of its share of water in any subsequent water year nor shall it increase the share of other State in the subsequent year if such State has used that water.

F Clause-XVII In addition, note shall be taken of all such orders, directions, recommendations, suggestions etc. which have been detailed earlier in different chapters/volumes of the report with decision for appropriate action. G Clause XVIII Nothing in the order of this Tribunal shall impair the right or power or authority of any State to regulate within its boundaries the use of water, or to enjoy the benefit of waters within that State in a manner not inconsistent with the order of this Tribunal. H

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Clause-XIX A t In this order, antity (a) “Normal year” shall mean a year in which the total yield of from utaries the Cauvery basin is 740 TMC. torage (b) Use of the water of the river Cauvery by any person or entity of any nature whatsoever, within the territories of a State uantity d from shall be reckoned as use by that State. utaries (c) The expression “water year” shall mean the year commencing torage on 1st June and ending on 31st May. (d) The “irrigation season” shall mean the season commencing on 1st June and ending on 31st January of the next year. (e) The expression “Cauvery river” includes the main stream of the Cauvery river, all its tributaries and all other streams contributing water directly or indirectly to the Cauvery river. D (f) The expression “TMC” means thousand million cubic feet of water. Clause-XX Nothing contained herein shall prevent the alteration, amendment or modification of all or any of the foregoing clauses by E agreement between the parties”. [emphasis supplied] S. Arguments advanced on behalf of State of Karnataka as regards the allocation of water on various heads F S.1 Submissions of Mr. Fali S. Nariman:

292Copy pinpoint292. It is submitted by Mr. Nariman, learned senior counsel appearing on behalf of the State of Karnataka, that while Tamil Nadu’s statement of claim before the Tribunal set out that it had developed 28.20 lakh acres of irrigation before 1974, the Tribunal’s final order G recognised Tamil Nadu’s right to develop only 21.38 lakh acres. However, the Tribunal, in an unreasonable and inequitable manner, allocated water to Tamil Nadu for irrigating an additional 3.32 lakh acres on the vague ground of “merit and equity”. This additional allocation for 3.32 lakh acres lay squarely outside the ambit of the 1924 Agreement and could H

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A not be termed as equitable apportionment. Further, the Tribunal’s allocation of water was not based on the principles of equitable apportionment as elaborated in the Helsinki Rules, 1966 which set out that such kind of apportionment must be done to satisfy the needs of a basin State without causing substantial injury to a co-basin State. The Tribunal allocated water on the basis of the 1924 Agreement which was based on flow rather than on the basis of established and comparative needs of the parties. He submitted that Karnataka’s stance before the Tribunal had always been that the needs of the States, rather than the flow of the water, ought to be the basis for apportionment. This need-based apportionment depends on the contribution of water to the river valley by each State, the population of each State in the river basin and the cultivable area of each State in the basin requiring application of water to grow crops. None of these factors had been given due importance by the Tribunal even though they were highlighted by this Court in In Re: Presidential Reference (Cauvery Water Disputes Tribunal) (supra).

293Copy pinpoint293. He submitted that such quantum of water had been allocated after taking into account the land in Tamil Nadu which was outside the scope and purview of the 1924 Agreement. Tamil Nadu itself had consistently taken the stand that the 1924 Agreement was the law on the subject and that the parties had to be governed by the terms therein. Thus, Tamil Nadu could not benefit from excess water allocated on the E basis of land which lay outside the scope of the 1924 Agreement. It is his further submission that over and above the transgressions made by the Tribunal, it had also treated Karnataka unfairly by failing to consider the constraints imposed on Karnataka’s predecessor State and by overlooking the needs of Karnataka while allocating water. The Tribunal F has given several concessions to Tamil Nadu during the course of hearing and also granted Tamil Nadu water far in excess of its needs and outside the scope of the 1924 Agreement despite the evidence on record. He highlighted this aspect by referring to the Saldanha Committee Report, 1977 which had recommended large savings in existing use of water and had allocated only 393 TMC of water to Tamil Nadu as opposed to the significantly larger quantum allocated by the Tribunal.

294Copy pinpoint294. He argued that alternatively, the allocation of water could be done equitably and in accordance with justice by restoring equal rights to the party-States. He submitted that Karnataka and Tamil Nadu were co-equal States and that justice had to be done to both while allocating water, a fact which the Tribunal had failed to recognise. He submitted

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that the various applicable factors set out in the Helsinki Rules, 1966 A were more or less evenly balanced between the two States and the same have not been kept in view. Further, based on the maxim that equality was equity, the balance or remaining volume of water available after subtracting the share of Kerala and Puducherry and after accounting for wastage ought to have been divided equally between B Karnataka and Tamil Nadu. According to his calculations, Karnataka and Tamil Nadu would each get 339.5 TMC of water. S.2 Submission of Mr. S.S. Javali:

295Copy pinpoint295. Supplementing the argument of Mr. Nariman, Mr. Javali, learned senior counsel appearing for Karnataka, submitted that the C Tribunal had recorded its findings based on conjectures and surmises rather than on evidence. He took this Court through the record of proceedings to highlight the point as to how the Tribunal had made several observations which are founded on materials on record. Further, the Tribunal also allowed Tamil Nadu to file an affidavit (Ext. 1665) regarding crop water requirement much after the stage of closing of evidence and, D in fact, relied upon the said affidavit while allocating water. Karnataka was not even allowed to cross examine Tamil Nadu on the said affidavit and Tamil Nadu unjustly gained an advantage over Karnataka. Additionally, Tamil Nadu failed to establish that it had suffered injury on account of Karnataka’s actions, a sine qua non for maintaining the complaint. He E also touched on several other aspects that the Tribunal failed to consider, including drinking water for the city of Bengaluru, excess water already available to Tamil Nadu, Karnataka’s water projects and its drought areas, and overall, the frustration of Karnataka’s claims and the denial of complete justice to Karnataka. The Tribunal failed to account for all the aforesaid shortcomings and its final decision was grossly violative of F the principles of natural justice.

296Copy pinpoint296. He relied upon the judgments in In Re: Presidential Reference (Cauvery Water Disputes Tribunal) (supra), Union of India and another v. Tulsiram Patel32, Satyavir Singh and others v. Union of India and others33, A.K. Kaul and another v. Union of India G andanother34, Anisminic Ltd. v. Foreign Compensation35, Ganga 32 (1985) 3 SCC 398 33 (1985) 4 SCC 252 34 (1995) 4 SCC 73 35 [1969] 1 All ER 208 H

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A Kumar Srivastava v. State of Bihar 36, P.S.R. Sadhanantham v. Arunachalam and another37, Bengal Chemicals & Pharmaceuticals Works Ltd., Calcutta v. Their Workmen38, Jose Da Costa & another v. Bascora Sadasiv Sinai Narcornim and others.39, Ram Piari v. Bhagwant and others40, Phulchand Exports Ltd. v. O.O.O. Patriot41, Crompton Parkinson (Works) Pvt. Ltd., Bombay v. Its Workmen B and others42, Vashit Narain Sharma v. Dev Chandra and others43, Ram Bharosey Agarwal v. Har Swarup Maheshwari44 and Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and another45. S.3 Contention raised by Mr. Mohan V. Katarki:

297Copy pinpoint297. Mr. Katarki, appearing for the State of Karnataka, urged that the affidavit (Ext.1665) stated that the crop water requirements mentioned therein were estimated in consultation with Tamil Nadu Agriculture University; however, no material was placed on record to justify such consultation. Certain formulae mentioned in the affidavit (Ext. 1665) to arrive at the crop water requirements were also incorrect. D The assertions made in the affidavit (Ext.1665) especially with regard to over estimation of evaporation of crops and under estimation of effective rainfall, were blatantly incorrect. Tamil Nadu also incorrectly interpreted the evidence of Karnataka in an attempt to bolster its own case. Tamil Nadu also attempted to justify its affidavit (Ext. 1665) by arguing that the calculations made therein with respect to evaporation were based on the Government of India (GoI) guidelines, 1984 whereas Karnataka had relied upon papers from the United Nations Food and Agriculture Organisation (FAO). Tamil Nadu incorrectly argued that in such conflict, the guidelines issued by the GoI had to take precedence. He submitted that the GoI guidelines and FAO papers had to be read together and that the methodology adopted by Tamil Nadu in making such calculations was too general. Such general methodology could not be applied to the specific facts of the case. During cross examination, Tamil Nadu’s own 36 (2005) 6 SCC 211 37 (1980) 3 SCC 141 38 G (1959) (Supp) (2) SCR 136 39 (1976) 2 SCC 917 40 (1990) 3 SCC 364 41 (2011) 10 SCC 300 42 (1959) Supp (2) SCR 936 43

(1955) 1 SCR 509

44 (1976) 3 SCC 435 45 H (2004) 3 SCC 214

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witness deposed that Tamil Nadu’s water requirement was only 242 A TMC and on this basis itself, the calculation of water to be provided by Karnataka at the Mettur reservoir should have only been 137 TMC as against the 377 TMC claimed by Tamil Nadu.

298Copy pinpoint298. He took this Court through the factual aspects of how the quantity of rainfall affected the flow of the river. Heavy rainfall resulted B in greater run-off water which fed the river while moderate or lesser rainfall resulted in lesser run-off as the water would percolate into the ground and increase the level of ground water.

299Copy pinpoint299. He then submitted that the Tribunal also failed to factor Tamil Nadu’s admission before the Cauvery Fact Finding Committee that its Samba crop was fed primarily by the North-East monsoon. Tamil Nadu C intentionally downplayed the contribution of this rainfall in its affidavit (Ext. 1665) to assert that it needed more water to irrigate such crop. The Tribunal adopted almost the entirety of Tamil Nadu’s affidavit (Ext. 1665) for estimating crop water requirements while making only minor corrections in its final order. D

300Copy pinpoint300. He further submitted that Tamil Nadu obstructed the development of water projects in Karnataka thereby resulting in large tracts of land in Karnataka remaining undeveloped. Tamil Nadu wrongly invoked Karnataka’s so-called obligation to obtain its consent under the 1892 and 1924 Agreements and in the case of the Kabini project, Tamil E Nadu did not give its consent even after its own technical officers had agreed to the same. Tamil Nadu also stalled the Harangi project by wrongly insisting on consent from the erstwhile State of Coorg which was not even a requirement under the Agreements.

301Copy pinpoint301. He then submitted that the equitable share of water to be allocated to the party-States had to be based on needs rather than on the flow of the river. No State had any right to natural flow of an inter-state river and several factors had to be considered while assessing the needs, like basin factors, drought area and population. He took us through several doctrines and theories including the Harmon Doctrine, Natural Flow Theory and Helsinki Rules, 1966 to emphasise his point. He also relied upon the judgment of New Jersey v. New York (supra).

302Copy pinpoint302. He submitted that in Karnataka’s case, the aforementioned factors had to be looked at in combination with Karnataka’s claim under the 1924 Agreement of an area of 12.64 lakh acres. Karnataka had a large extent of drought prone areas which required a suitable allocation H

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A of water. While Karnataka claimed a quantity of 408 TMC for irrigation of 27.29 lakh acres, the Tribunal arbitrarily considered an area of only 18.85 lakh acres while allocating water to Karnataka. The Tribunal applied the rule of priority contrary to the rules of equitable apportionment and excluded large areas of land based on incorrect interpretation of the 1924 Agreement and also reduced the water allocated to various water projects based on flimsy reasoning. By reducing the allocation of water to various water projects in Karnataka on the ground of constraint of water availability/highly water-deficit basin, the Tribunal was left with 45.08 TMC of water, termed as “balance amount” of water, which it then distributed between all the States. This reduction and redistribution of water was grossly inappropriate and not based on the principles of equity. Such volume of “balance amount of water” had been taken from Karnataka’s projects citing lack of water for other States and then been unfairly distributed between all the States. As per Karnataka’s calculations, the actual amount of water to be allocated to Tamil Nadu ought to have been 311.6 TMC as opposed to the amount of 390.85 D TMC allocated by the Tribunal.

303Copy pinpoint303. He then argued that Tamil Nadu was not entitled, either in law or on fact, to claim water on the ground of protected use. He submitted that the concept of “existing use” could not be claimed as a right but could only be considered as a factor influencing equitable apportionment. Existing use had to arise as a legally protected interest of the State and was not justifiable either by domestic law or by international law. Although several international legislations provided for existing use, in each of those cases, it was clear that existing use along with potential use was, at best, to be considered as a contributing factor and not as a right. The extent of existing use had to be measured by the concept of beneficial use and not by diversion or natural flow. Tamil Nadu’s claim of existing use of water for irrigating 28.2 lakh acres was untenable. The concept of whole flow/natural flow was also imposed on Mysore by virtue of the impugned agreements. He has commended us to the authorities in In Re: Presidential Reference (Cauvery Water G Disputes Tribunal) (supra), State of Nebraska v. State of Wyoming (supra), State of Colorado v. State of New Mexico (supra), The State of Washington Department of Ecology v. Clarence E. and Peggy V. Grimes46 and In Re: Hague v. Nephi Irrigation Co.47. 46 121 Wash. 2d. 459 H 47 16 Utah 421, 52 P. 765 (1898) : 41 LRA 311

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304Copy pinpoint304. He further argued that Karnataka was entitled to water allocation of 407.70 TMC considering the scale of its existing and ongoing water projects set out in its statement of claim before the Tribunal in

1990. Tamil Nadu did not dispute that these water projects presently existed and ongoing, rather it only argued that they were unauthorized, illegal and operating without taking its consent as supposedly mandated under the 1892 and 1924 Agreements.

305Copy pinpoint305. He then submitted that the territorial changes of the riparian States lying in the Cauvery river and its tributaries materially affected the basis of rights and obligations of Madras and Mysore under the 1924 Agreement. He elaborated as to how several territories were either upper or lower riparian based on the 1892 and 1924 Agreements. After C the commencement of the Constitution and subsequently, the 1956 Act, the new State of Mysore, which was originally a mid-riparian State, became an upper riparian State and the State of Madras, which was earlier both upper and lower riparian, became a lower riparian State.

306Copy pinpoint306. He challenged Tamil Nadu’s argument that water allocated D to Karnataka for its crop should be reduced. Karnataka’s crop water requirement had not been challenged by any State and any argument to the contrary was merely an after-thought. Further, Tamil Nadu’s entire argument revolved around the premise that the soil in Karnataka was unproductive for irrigation and was unsustainable for paddy growth. This E premise itself was baseless insofar as Tamil Nadu admitted in its own pleadings that Karnataka’s soils were “favourable to grow a wide range of crops”. Further, the Helsinki Rules, which set out the basis for equitable apportionment, did not recognise soil condition or quality as a relevant factor in equitable allotment. The relevant factors were the existence of cultivable land or area and shortage of rainfall to meet the consumptive utilisation of crop. He also argued that one riparian State’s productive use of water was no ground to deprive another co-riparian State’s share.

307Copy pinpoint307. It is canvassed by him that the Tribunal did not allocate excessive water to Karnataka’s water projects, especially the Hemavathy Project. He urged that Karnataka was entitled to construct a reservoir of 45 TMC with utilisation capacity of 67.5 TMC. Since the current gross capacity of the Hemavathy reservoir was only 37.1 TMC and the Tribunal had allocated only 43.67 TMC, there was no question of any excessive water being allocated to Karnataka. As regards Tamil Nadu’s argument that the number of days to be considered for growing paddy in H

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A Karnataka should be reduced from 145 days to 120 days and that the water allocation should be reduced accordingly, as also the argument that the puddling requirement should be reduced from 267 mm to 150/ 200 mm, he replied that these facts and figures had, in fact, been nullified by the findings of the Tribunal and by the Assessors appointed by the Tribunal whose findings were contrary to the said argument. B

308Copy pinpoint308. He also challenged Tamil Nadu’s argument before the Tribunal that excessive water had been allocated to Karnataka for rice cultivation. He submitted that the rice cultivated in Karnataka was in drought regions and could not be compared to the rice cultivated in non- drought areas in Tamil Nadu as there was a substantial difference in contributing factors such as percolation and puddling losses. Climatic constraints justified higher water allocation to drought areas. For the same reason, Tamil Nadu’s demand for higher allocation of water was also unjustified and improper. Infact, Tamil Nadu’s cultivation of double crop was completely inconsistent with the prevailing climatic conditions in the area. Tamil Nadu’s Kuruvai crop, which would have benefitted from water provided by the North-East monsoon, was instead primarily sustained by irrigation supplies from Karnataka as it was cultivated much before the onset of the rains. The only sensible course of action would be to disallow Tamil Nadu’s Kuruvai double crop and allow only the Samba single crop. E S.4 Proponements of Mr. Shyam Divan:

309Copy pinpoint309. Mr. Divan, learned senior counsel appearing for Karnataka, has stressed on the need to recognize the importance of ground water while allocating available water resources. Ground water is a renewable F resource and, if not extracted regularly, would reduce the absorption capacity of the underlying aquifer resulting in rain water/surface water being wasted as run-off. Extraction of ground water is, thus, an optimal utilisation of available resources.

310Copy pinpoint310. He submitted that the Tribunal had erroneously excluded a G large coastal area while rejecting the argument for groundwater. He also submitted that the Tribunal committed a patent error by failing to reduce the amount of water allocated to Tamil Nadu despite recognising the availability of 20 TMC ground water in Tamil Nadu and the conjunctive use of the same along with surface water. Such quantum of ground water ought to have been factored in as an available/additional resource H in Tamil Nadu for the purposes of irrigation.

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311Copy pinpoint311. The quantum of water allocated to Tamil Nadu under the head of “irrigation requirement” ought to have been reduced by the quantum of available ground water by either 47 TMC (as per Tamil Nadu’s rejoinder recorded in the final report of the Tribunal) or 30 TMC (as per Tamil Nadu’s pleadings) or, at the very least, 20 TMC (as per the findings of the Tribunal) and, accordingly, the quantum of water to be provided by Karnataka at the inter-state border also ought to have been reduced proportionately. The efficiency of utilising ground water, as compared to surface water, was much higher and when factoring the available amount of ground water and its greater utilisation efficiency, the aforementioned figures of 47/30/20 TMC ought to be increased to 72/46/30 TMC respectively. C

312Copy pinpoint312. He then submitted that the Tribunal had completely overlooked the water requirements for the city of Bengaluru in its final order. Bengaluru being a metropolis with a burgeoning population ought to have been treated as sui generis and been given special dispensation while water was being allocated. Water supply for Bengaluru was entirely D sourced from the Cauvery river but its use could not be treated as a trans-basin diversion as erroneously claimed by Tamil Nadu which itself was responsible for trans-basin diversion of water to irrigate an area of 3.29 lakh acres within its territory. The Tribunal allocated a miniscule amount of 1.85 TMC to Karnataka under the head “domestic and industrial water requirement projected for 2011” while arriving at 20% E consumptive use for domestic purposes and 2.5% for industrial purposes. He did not challenge the percentage of consumptive use; rather he contended that the Tribunal had not considered the actual water requirements for the city of Bengaluru.

313Copy pinpoint313. He then contended that the Tribunal had wrongly considered water allocation for only 1/3rd of the population of Bengaluru on the basis that 36% of the city lay within the basin. This amount of water was even further reduced by the Tribunal on the basis of unverified figures provided by Tamil Nadu. The Tribunal also reduced the quantum of water allocated to Bengaluru on the basis that 50% of its needs could be met from groundwater without relying upon any evidence or pleadings to that effect. For Bengaluru, groundwater, at best, could be considered as a complementary/supplementary source rather than a primary source. While allocating water to the States, priority had to be given to drinking water but the Tribunal had failed to consider this aspect. Accordingly, Bengaluru should be given an increased water allocation of 10.14 TMC. H

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314Copy pinpoint314. He contended that the water requirements for Bengaluru were projected up till the year 2011 as set out in the pleadings/submissions which had been submitted at the time of the initial hearing in 1990. Seventeen years had elapsed by the time the final order was passed. The projections mentioned in the pleadings, thus, could not be limited till the year 2011 especially when the Tribunal itself had suggested that B drinking water ought to be calculated on the basis of projections for

2025. Despite this factual situation, the Tribunal proceeded on the basis of projections till the year 2011. The time gap between the submission of pleadings and the final order ought to have been a relevant factor while allocating water.

315Copy pinpoint315. It is further urged by him that the Tribunal had erroneously rejected Karnataka’s claim of water for its second crop while allowing Tamil Nadu’s claim for second crop. Such rejection was inequitable and improper. The Tribunal had allowed allocation of water for Tamil Nadu’s Thaladi second crop to the extent of 1.85 lakh acres with the justification D that approximately 95,000 acres were developed prior to 1924 and a further 90,000 acres were developed as per the 1924 Agreement. Based on equitable apportionment, Karnataka should have been allocated atleast the same amount of water for an equivalent area of 1.85 lakh acres, but the Tribunal failed to do so. Surprisingly, while recognising Karnataka’s entitlement for second crop to the extent of 67,000 acres, the Tribunal E failed to allocate any water for the same.

316Copy pinpoint316. The Tribunal also failed to account for the fact that Karnataka’s farmers had been growing second crops much prior to 1974 and by the time the final order was passed in 2007, the farmers had been growing second crop for decades. These farmers had developed their practices and expectations based on second crop and it was wholly inequitable for the Tribunal to reject Karnataka’s claim. He also reiterated Karnataka’s stance that the final figure of 45.08 TMC “balance resource” of water was erroneously arrived at. The Tribunal should have first considered and allocated water for Karnataka’s claim for second crop after which it could have arrived at a “balance” amount of water available.

317Copy pinpoint317. It is his further submission that the Tribunal had incorrectly rejected all schemes for lift irrigation in its final order. This was problematic for Karnataka which relied upon lift irrigation, particularly in drought-prone areas like the Kabini region, to the extent of almost H 3.04 lakh acres which requires approximately 18 TMC of water. Tamil

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Nadu, on the other hand, primarily relied on flow irrigation and minor A irrigation and did not have any major lift irrigation schemes. Thus, the Tribunal’s order rejecting all lift irrigation schemes substantially affected Karnataka while making negligible impact on Tamil Nadu.

318Copy pinpoint318. He also argued that the Tribunal had unjustifiably allocated an excess amount of water to Tamil Nadu with respect to the Cauvery B Mettur project. The 54.68 TMC of water allocated to Tamil Nadu for 3.21 lakh acres was based on the deposition of Tamil Nadu’s Witness No. 1 and Tamil Nadu’s affidavit (Ext. 1665). The deposition of Tamil Nadu’s Witness No. 1 confirmed the contents of the Cauvery Mettur Project Report which indicated that Tamil Nadu’s water requirement was actually 41.89 TMC. On the other hand, Ext. 1665 had no evidentiary value since the same was an unverified affidavit for which Karnataka was not allowed to cross-examine the deponent. Even the Tribunal had indicated that the said affidavit would not be relied upon for supporting Tamil Nadu’s case, rather it would only be used as an admission. The reliance placed on Ext. 1665 was misplaced and ought not to have been considered at all. The evidence of Tamil Nadu’s Witness No. l should have been the sole criteria for allocation of water for the Cauvery Mettur project. Thus, the Tribunal should have allocated not more than 41.89 TMC of water to Tamil Nadu for the said project and not 54.68 TMC as done in the final order. E

319Copy pinpoint319. Finally, he submitted that the Tribunal had failed to recognize that the area of irrigation requiring water allocation, as submitted by Tamil Nadu, was covered by two irrigation projects/systems in Tamil Nadu and had awarded an excess amount of 9.51 TMC in that regard. This “double accounting” of irrigable areas was erroneous and the water allocated to Tamil Nadu had to be proportionately reduced. Tamil Nadu’s F witness, A. Mohanakrishnan, had himself admitted that the existing second crop area was 70,000 acres whereas the Tribunal considered the area to be 87,500 acres. Similar admissions had been made with respect to other areas in Tamil Nadu. Thus, the water allocated by the Tribunal was far in excess of the water required by such areas for irrigation. G T. Arguments put forth by the State of Tamil Nadu T.1 Submissions of Mr. Shekhar Naphade:

320Copy pinpoint320. Mr. Naphade, learned senior counsel, opened the arguments on behalf of the State of Tamil Nadu by taking this Court through several H

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A documents, including the National Water Policies of 1987 and 1992, the Helsinki Rules, 1966 and the Campione Consolidation of the International Law Association Rules on International Water Resources, relevant historical aspects of the matter and the evidence on record. He also took this Court through the scope and extent of the 1956 Act and pointed out the interplay between several sections of the Act. He submitted that B the term ‘agreement’ as mentioned in Section 2(c) of the 1956 Act included all agreements executed prior to the coming into force of the Act and that there was no limitation on any kind of agreement under this section. Even pre-1947 agreements in relation to the use, distribution or control of inter-State waters were brought under this ambit. Thus, Karnataka’s C submission that the 1892 and 1924 Agreements were not within the scope of the said Act was baseless. He submitted that the river was a hydrological unit and remained unaffected by political boundaries.

321Copy pinpoint321. He then took this Court through certain statistical data and evidence on the basis of which water ought to be apportioned between the States. He submitted that the water ought to be apportioned equitably in line with the formula laid down in the Helsinki Rules, 1966. The density of population is much higher in Tamil Nadu than in Karnataka thus putting a greater demand on water for all sectoral uses. He submitted that the Cauvery basin upto the Mettur Dam is influenced by the South-West monsoons whereas the area downstream of the Mettur Dam is influenced by the North-East monsoons which are erratic, undependable and, being associated with cyclonic storms, also responsible for heavy rainfall and consequent loss of agricultural produce in the basin. Karnataka is primarily influenced by the more effective South-West monsoons whereas Tamil Nadu, lying downstream from the Mettur Dam, faces the brunt of the ineffective North-East monsoons. He stressed that the North-East monsoons could not be relied upon for irrigation owing to their unpredictability, a fact which Karnataka’s witnesses had also deposed to. He referred to the Saldanha Report, 1977, specifically the chart therein, which set out the storage capacity of water much above the 124 TMC figure. He expressed his apprehension that if Karnataka was granted further capacity to store water, such excess water retention would be the cause for further disputes between the States.

322Copy pinpoint322. On the aspect of soil capacity in the two States, he submitted that while Tamil Nadu has clayey soil which is ideal for paddy cultivation, Karnataka has red, loamy/laterite soil which is more suited for dry crop. H

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He highlighted several pieces of evidence to buttress this argument including depositions from Karnataka’s witnesses wherein it has been stated that Karnataka should restrict its rice crop and not grow a second rice crop. He submitted that the water requirement for growing paddy in Tamil Nadu is substantially less than the requirement for growing the same amount of paddy in Karnataka and there is greater productivity of growing paddy crops in Tamil Nadu. He also mentioned that the recommendations made by the C.C. Patel Committee were outdated and that Karnataka’s reliance on the same was unjustified.

323Copy pinpoint323. He also set out the three main kinds of paddy crop grown in Tamil Nadu, namely, Kuruvai, Thaladi and Samba, and the water requirements for growing these crops and how Tamil Nadu’s climate was ideal for growing such crop. He submitted that owing to the cropping pattern combined with the soil types, there should be no restriction on Tamil Nadu for growing second crop of paddy whereas Karnataka should be restricted from growing any second rice crop and even its first rice crop should be limited. He has placed reliance on data and evidence regarding Karnataka’s Kabini and Hemavathy water projects. He argued that these projects had violated the provisions of the 1892 and 1924 Agreements and have affected Tamil Nadu’s existing use of water. It is submitted that Karnataka constructed the Hemavathy Project without taking Tamil Nadu’s consent and also failed to provide Tamil Nadu with details about the project as mandated under the 1892 and 1924 E Agreements. The Hemavathy reservoir was designed in such a way as to deplete its entire storage capacity without making provisions for carry- over storage thereby preventing any surplus water from being released to Tamil Nadu. Karnataka proposed the Kabini Project in such a manner as to utilise the entire yield of water at the site of the dam thereby denying water to the lower riparian States. The Kabini reservoir diminished the flow of water downstream to Tamil Nadu, thus, affecting Tamil Nadu’s existing use. Karnataka submitted multiple proposals for supplementing the water from this project with lift irrigation schemes but this was expressly disallowed by the Tribunal in its final order. In spite of this, Karnataka has gone ahead and executed a lift irrigation scheme in the Kabini sub-basin and utilized the same for irrigation, while refusing to release water to Tamil Nadu.

324Copy pinpoint324. He submitted that while the Tribunal had overall allocated water to Karnataka for an area of 18.853 lakh acres, that figure included H

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A an area of 3.44 lakh acres which had been erroneously allowed on grounds of merit without any evidence or material to justify the same. Thus, the overall figure of 18.853 lakh acres deserved to be reduced by 3.44 lakh acres. This was without prejudice to the argument that the area to be considered had to be restricted to the existing area as in June 1990, the cut-off date for the Tribunal’s consideration. Further, the area under consideration for Karnataka’s Kharif paddy has to be reduced and the number of days for cultivation also had to be cut down from 145 to 125 days. He stressed on the evidence on record submitting that there is uncontroverted expert opinion which categorically states that Karnataka was responsible for wastage of large quantities of water and that Karnataka ought to reduce its paddy crop. This evidence had not been considered by the Tribunal. He also submitted that Karnataka should not be allowed to draw water from the major water reservoirs, viz., Harangi, Hemavathy, Krishna Raja Sagara and Kabini, during the summer season except for perennial crop and domestic needs and this, too, has to be monitored by the Regulatory Authority. He suggested that D Karnataka ought to consider the possibility of building another dam above Mettur at the border to resolve its water problems.

325Copy pinpoint325. It is further argued by him that around 64% of Bengaluru lay outside the basin and the Tribunal was right to consider only 1/3rd of Bengaluru’s needs while determining its water supply. Any further water supplied to Bengaluru would amount to trans-basin diversion in complete contravention of the principles of equitable apportionment, the National Water Policy and the Helsinki Rules, 1966. Such trans-basin diversion is detrimental and would lead to chaos. He also submitted that Karnataka’s contention that the Tribunal ought to have considered water projections for the year 2025 would necessarily imply that water resources for Tamil Nadu’s territories, especially the urban areas, would also have to be distributed in the same light. Karnataka did not follow the Town Planning Act/Rules and allowed Bengaluru to grow unchecked and unplanned and also failed to plan for the development of Bengaluru’s water supply, a fact made clear from its Master Plan of 1976 which significantly omits to provide for the domestic water needs of Bengaluru. Further, Karnataka did not treat the sewage water released by Bengaluru and such sewage was being released into the Cauvery which, in turn, was flowing down to Tamil Nadu. Karnataka would be able to procure a large amount of water for Bengaluru if it treated such sewage water. H

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326Copy pinpoint326. He argued that Karnataka already had adequate and alternate water resources for Bengaluru, including ground water, the Netravathy River and the Tungabhadra tributary of Krishna River. These resources were under-utilised and could be used to provide water to Bengaluru. Per contra, Chennai was woefully in short supply of water owing to lack of water resources and poor rainfall. Tamil Nadu was forced to divert water from other areas to Chennai to meet such shortfall. He argued that it was unfair to burden Tamil Nadu with the responsibility of providing for Bengaluru’s water supply when Karnataka itself had been negligent in planning for it, especially when the Cauvery basin was a drought basin and large parts of Tamil Nadu were also drought prone.

327Copy pinpoint327. He also stressed on Tamil Nadu’s method used to calculate crop water requirements as the guidelines based on Food and Agriculture Organisation (FAO) guidelines which were also recorded in the Government of India (GoI) Guidelines, 1984. He took this Court through the various factors and calculations involved under these guidelines, including evapo-transpiration, percolation loss, puddling and nursery requirements, system efficiency and effective rainfall. He submitted that Tamil Nadu had adopted calculations for the above factors based on the FAO and that Karnataka’s contention that Tamil Nadu had miscalculated the extent of evapo- transpiration and effective rainfall was baseless.

328Copy pinpoint328. He argued that as on the cut-off date (June 1990), Tamil E Nadu had developed/irrigated an area of 29.269 lakh acres whereas the area developed in 1972 was 28.208 lakh acres. Despite the above figures, the Tribunal gave a concession for only 24.708 lakh acres while also disallowing large areas for second crop even though the agro-climatic conditions prevalent in the area were ideal for raising two crops. He highlighted that while Tamil Nadu had adopted 60% overall efficiency while calculating the gross irrigation requirement which was the maximum possible level allowed, the Tribunal chose to adopt a higher figure of 65%. He took this Court through the evidence and record to submit that the Tribunal ought to have allocated a higher quantum of water to Tamil Nadu and reduced the quantum allocated to Karnataka. He submitted that under the 1924 Agreement, both Karnataka and Tamil Nadu were allowed to extend the area under irrigation solely by improvement of duty, without any increase in the quantity of water used, apart from the area permitted under Clauses 10(iv) and 10(v). Karnataka strictly adhered to the 1924 Agreement till 1974 but claimed entitlement for areas which H

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A it had not even developed after 1974. Tamil Nadu never claimed any extra quantity of water other than the volume it was entitled to under the Agreement. He also stressed on the need to allow Tamil Nadu double cropping owing to the favourable climatic and soil conditions whereas Karnataka ought not to be allowed double cropping owing to its drought areas and sub-standard soil conditions. B

329Copy pinpoint329. He then countered Karnataka’s submission that groundwater was an additional resource and submitted that such water supply could not be considered as an additional resource as it was recharged by surface water and was subject to various factors like rainfall and soil characteristics. Ground water levels were not consistent throughout the year and Karnataka’s construction of water projects had even reduced the flow of water into the Mettur Reservoir which, in turn, had drastically reduced the groundwater recharge level available to Tamil Nadu. Estimating the levels of ground water was scientifically complicated and difficult requiring huge amounts of data and field exploration. In fact, there was no single comprehensive technique to determine ground water and Karnataka’s own witness had deposed that it was not possible to estimate the recharge component of ground water when it was recharged by surface flows and rainfall. The other Water Tribunals like NWDT and KWDT had not considered groundwater to be a factor while apportioning water, a fact which was recorded by the Tribunal. The E UNDP Report relied upon by Karnataka to establish its argument was not relevant in the present context as the same was outdated and there had been a substantial change in the flow regime. The Central Water Board too had not agreed with the assessment of the UNDP Report, concluding that the use of ground water could not be reckoned as use of the Cauvery river water. He also referred to the study conducted by W. Barber of World Bank, 1985 and the UNDP Study Report, 1973 in that regard.

330Copy pinpoint330. He submitted that in any event, from February to June/July, the water requirements of the entire Delta region had to be met from ground water as there was no surface flow during that time. Reports from government bodies recorded that the groundwater was required for domestic and livestock uses during the aforestated months and, thus, such water could not be used for irrigation purposes. Additionally, groundwater in the Delta region was used for protective irrigation and to grow early nurseries. He submitted that the evidence on record showed H

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that in the Cauvery Delta region, reduction in surface flow resulted in lesser groundwater recharge which ultimately resulted in salt water intrusion from the sea. The quality of available ground water was ultimately poor, saline/brackish and unsuitable for use.

331Copy pinpoint331. He submitted that Karnataka could not ask for 5 TMC water out of the 10 TMC which had been allotted to Tamil Nadu towards environmental needs. He submitted that a certain minimum flow of the river had to be maintained to keep the river free flowing as set out in the National Water Policy, 2002. Such natural flow could not be considered as wastage as it was essential for maintaining the ecology and ecosystem in and around the river. He also submitted that as regards the allegation that 88 TMC of water was going into the sea and being wasted, there were several factors to consider in that regard and that Tamil Nadu was taking utmost care to ensure that no wastage occurred. A certain minimum standard of outflow had to be maintained to prevent erosion, reduce salt water intrusion and to maintain marine life and bio diversity. Further, the topography of the Delta region was such that no viable storage area could be built to conserve this water. He submitted that the North--East monsoons, being erratic, would result in heavy showers, not all of which could be conserved.

332Copy pinpoint332. Further, Karnataka’s contention that there had to be an equal apportionment of water between the two States was untenable. He relied upon the observation made by the Narmada and Krishna Water Disputes Tribunals that the principle of equality did not imply that there must be an equal division of water between the States but instead meant that the States must have equal consideration and equal economic opportunity. Such equality would not necessarily result in the same quantity of water being provided to the parties. F

333Copy pinpoint333. He stressed that Tamil Nadu needed month-wise release of water from June onwards to ensure that its Kuruvai crops were irrigated. Post 1974, Karnataka had been impounding water in its reservoirs and delaying flow of water to Tamil Nadu and contending that any shortfall could be adjusted at the end of the season. He submitted that the water G was needed at a particular time, from June onwards, to irrigate its crops and that any end-of-season release of water would not fulfill the objective of such water being used for irrigation purposes.

334Copy pinpoint334. He also argued that Karnataka had been persistently defiant in preventing Tamil Nadu from utilizing its share of the Cauvery water H

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A and that such defiance necessitated the need for the Cauvery Management Board. Karnataka had started construction on four reservoirs across the Cauvery tributaries, viz., Kabini, Hemavathy, Suvarnavathy and Harangi, without taking the requisite approvals from the Planning Commission or consent from Tamil Nadu. Karnataka also objected to the formation of the Tribunal and needlessly delayed the B proceedings. Even after the formation of the Tribunal, Karnataka violated the Tribunal’s interim order which had directed it to release 205 TMC of water at Mettur. Karnataka even went so far as to promulgate an Ordinance to nullify the interim order which was then set aside by this Court. Even when compelled to follow the interim order, Karnataka C delayed in constituting the implementation machinery required to enforce the said order and also challenged the Tribunal’s order in separate court proceedings to delay its implementation. Karnataka also refused to strictly follow the order thereby failing to ensure monthly quantities of water inflows at the Mettur during the June period. Even after the final award was passed, Karnataka failed to ensure stipulated flows mandated by the award. In the light of Karnataka’s transgressions, he submitted that there was a need for effective machinery to implement the Tribunal’s order.

335Copy pinpoint335. He also argued that the Tribunal was completely justified in rejecting Kerala’s claims for trans-basin diversion of water. Kerala had wrongly claimed that the Cauvery basin was a surplus basin, something completely contrary to fact and which had been recorded by the Tribunal. Trans-basin diversion of water could not be allowed unless the needs of in-basin requirements were met and even then, such diversion was against the spirit of the Inter-State Water Disputes Act. Kerala wished to operate its hydro-electric projects but the Tribunal had clearly held that irrigation projects had to be given preference to. Kerala tried to hoodwink the Tribunal by adding irrigation components to its hydro-electric projects. The irrigation components were incidental to the primary use of these projects and in fact, such projects had not even been approved by the competent authorities. G

336Copy pinpoint336. Even otherwise, the irrigation sought to be achieved by Kerala was excessively high and was done so without keeping in mind its limitations in respect of soil and topography which required excessive water to be utilised. Kerala was seeking to grow summer and perennial crops utilizing water from a deficient basin which was an unsuitable H

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proposition. Kerala already had a good irrigation system in place and such irrigation was supplemented by rainfall which it receives. Kerala also received drinking water supply from the Siruvani reservoir and several dams had already been constructed across its rivers for providing water. The Tribunal, thus, rightly rejected Kerala’s claims.

337Copy pinpoint337. He also challenged Karnataka’s submission as regards its drought area. He submitted that there is no universally accepted definition of drought and if at all drought is to be considered as a factor for equitable apportionment, then Tamil Nadu too has a significant drought area. Karnataka’s claimed drought area is highly exaggerated but if the Tribunal was to consider Karnataka’s drought area while allocating water, then Tamil Nadu also ought to be given a proportionate share of water to irrigate its own drought area. T.2 Contentions raised by Mr. Rakesh Dwivedi:

338Copy pinpoint338. Mr. Dwivedi, learned senior counsel appearing for Tamil Nadu, argued, apart from other aspects which we have already addressed, on the aspect of injury suffered by/prejudicial affectation caused to Tamil Nadu on account of Karnataka’s actions. He submitted that there was ample evidence on record to prove that Karnataka’s upstream abstraction post 1974 substantially reduced the area and quantum of water available to Tamil Nadu. Karnataka increased the area of irrigation much beyond the scope of the 1924 Agreement which, in turn, affected the existing irrigation of Tamil Nadu and the evidence for the same had been placed before the Tribunal. It was further submitted that existing use of water was a facet of equitable apportionment and Karnataka had failed to prove that its planned diversion of water would not harm the existing, established use. Tamil Nadu’s claim was not with regard to the flow of water, as wrongly claimed by Karnataka, rather it was based on protection of existing use established under the 1892 and 1924 Agreements.

339Copy pinpoint339. He argued that Karnataka’s plea that the erstwhile State of Madras effectively had veto power over its water projects was untenable. G The entire purpose of seeking consent from Madras before constructing any water project was to ensure that existing irrigation was not jeopardized and even otherwise, consent was always required from the lower riparian State when constructing such projects. He also submitted that there had been no violation of natural justice by the Tribunal while hearing the matter. It was submitted that the Tribunal had clearly analysed every H

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A parameter and made suitable changes to such parameters as required while passing the final order. Tamil Nadu’s affidavit (Ext. 1665) was merely a collation of materials already available on record. Pertinently, Karnataka itself contended that the Tribunal’s Assessors were not competent to assess crop water requirement as they relied on Ext. 1665 but then relied upon the Assessors’ recommendation for justifying its own crop water requirement.

340Copy pinpoint340. Both Mr. Naphade and Mr. Dwivedi touched upon the scope and extent of this Court’s power under Article 136 of the Constitution of India to hear an appeal against the Tribunal’s orders. It was submitted that this Court had the discretion to use such power and that while the extent of this power is wide in amplitude, this Court has traditionally applied judicial restraint while exercising it. It is submitted that the present dispute is complex and riddled with factual and scientific complexities which this Court may find insurmountable while assessing. It is also put forth that the Tribunal had taken into account various factual aspects and relied upon the assistance of technical experts while considering the scientific principles applicable to the present dispute in the course of the long hearing in the matter. The Tribunal has also considered socio- economic factors and public interest while rendering its final decision. Considering the above submissions, a thorough understanding of scientific principles as well as possessing a relevant discipline in science to apply the scientific principles to the factual matrix is required and it is an exercise which would not fit into the accepted principle of judicially manageable standards.

341Copy pinpoint341. Mr. Naphade and Mr. Dwivedi have placed reliance on number of decisions to bolster their stand some of which have already been referred to and some shall be referred to wherever necessary. U. Arguments advanced on behalf of the State of Kerala

342Copy pinpoint342. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the State of Kerala, submitted that Kerala contributed around 147 G TMC to the Cauvery basin, around 20% of the water, and had asked for a proportionate share of water by claiming 99.8 TMC. The Tribunal, however, had allocated a meagre 30 TMC of water to Kerala, around 4%, for its needs. Such allocation is absolutely not equitable. He argued that equity, and not equality, should govern the allocation of water between the States and that it was unreasonable that Karnataka and Tamil Nadu H

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should be given equal share of the entire amount of water allocated by A the Tribunal. The concept of equity has been recognized in the Helsinki Rules, 1966 and the factors governing such apportionment have also been mentioned therein, later affirmed in the Berlin Rules.

343Copy pinpoint343. He went into the historical perspective and explained to this Court as to how Kerala, which was not party to the 1892 and 1924 B Agreements, became introduced to the dispute. He submitted that Karnataka and Tamil Nadu were not wholly representative of the Cauvery basin and that Kerala too was an integral part of the basin, contributing a large percentage of the water. The 1892 and 1924 Agreements executed by and between Mysore and Madras did not bind Kerala, which was not party to the same. None of the predecessor States to Kerala, viz., C Travancore, Cochin or Malabar, were recognized as interested parties during the disputes between the riparian States of the Cauvery basin and these riparian States also objected to the involvement of Kerala in the dispute. He elaborated that even as per the definitions given in the 1956 Act, Kerala could not be considered as a principal successor State D to its predecessor as its predecessor States were not party to the 1924 Agreement. As the 1892 and 1924 Agreements were in the form of treaties entered into between two sovereign entities, the Tribunal lacked the jurisdiction to enforce them. He also submitted that when Kerala raised its objections before this Court regarding the necessity to be involved in the matter, it was told to abstain from the proceedings until the matter was finally adjudicated between Tamil Nadu and Karnataka.

344Copy pinpoint344. He submitted that allocation of water by the Tribunal was required to be based on certain factors and that such allocation had to be done in a particular manner. First, the Tribunal had to determine the total yield of basin water including surface and ground water. Then, the total yield of water had to be apportioned and there had to be a mechanism for release of such water. Finally, there needed to be a monitoring system to ensure that such release of water was done properly. He also submitted that the allocation of water had to be done on a need-based priority and the Tribunal ought to have considered the consumptive and non- G consumptive needs while making such allocation.

345Copy pinpoint345. He submitted that although the Kabini and Bhavani tributaries of the Cauvery flowed through the erstwhile Malabar district of Madras, yet no developmental activities could be taken up in that region. Even after the State of Kerala was formed in 1956 by combining Travancore, H

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A Cochin and Malabar, it could not take up any developmental activities in the Malabar region due to protests from Tamil Nadu and Karnataka who argued that the 1924 Agreement could only be reviewed in 1974. Even after 1974, all but one of Kerala’s projects were denied sanction by the Central Government despite the fact that the Cauvery Basin in Kerala had a high head and steep gradient, thus, making the area ideal for generation of hydro-electricity. Owing to its geography and topography, Kerala has a higher capacity/potential to generate hydro-electricity. This fact had been proved before the Tribunal. Kerala also has an acute shortage of electricity, a problem which has stunted its industrial growth and there is a pressing need to utilise the potential of water projects in the State. There was also an inability to set up alternate types of power plants like nuclear power owing to the topography of the region. Also, the rainfall distribution in Kerala was such that there is no rain in summer and the west flowing rivers within the State go dry during the summer thereby causing water scarcity. All these factors have necessitated the construction of water projects in Kerala. D

346Copy pinpoint346. He argued that the Tribunal’s refusal to allow Kerala’s water projects is based on an erroneous assumption that such projects would result in trans-basin diversion of water. He submitted that Tamil Nadu and Karnataka had exaggerated their claims resulting in an impression being created that the Cauvery basin could not cater to their needs and, hence, was water deficient. He argued that legally, there is no bar on preventing trans-basin diversion from a water deficit basin. He also touched upon the concept of the doctrine of stability and submitted that while the Tribunal had the jurisdiction to allocate the water to the States, the States are to be allowed to utilise such water in a manner that they deemed fit and that the Tribunal could not dictate as to how the States used such water. Next, he argued that in the present case, trans-basin diversion is essential to ensure the most economical way of utilizing the river’s water and that a basin State must have full freedom to utilise the waters which it is entitled to. He further argued that the Tribunal had allowed water projects to come up in Tamil Nadu and Karnataka which have actually diverted water from the Cauvery basin but in Kerala’s case, where there was an urgent and pressing need for such projects, the Tribunal has rejected Kerala’s proposals. Finally, he argued that the rights in interstate river waters belonged to the inhabitants of the basin State and not to the inhabitants of the basin itself. H

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347Copy pinpoint347. He argued that the Tribunal has erroneously omitted to A account for 20TMC of ground water which was available in Tamil Nadu. Tamil Nadu had access to ground water resources while Kerala did not as set out in the report of the Cauvery Fact Finding Committee. He also argued that the Tribunal has failed to account for the hydrology of the basin, particularly the contribution of water by each basin State. The B Tribunal ought to have allocated appropriate volume of water for Kerala’s Banasurasagar project, the Mananthody Scheme and Kerala Bhavani Scheme, apart from other water projects being developed in the State.

348Copy pinpoint348. He also challenged the Tribunal’s decision to make Kerala adopt a single-crop paddy. He argued that Tamil Nadu and Puducherry had been allocated water for three-crop paddy as also for dry irrigated crops, whereas Kerala’s farmers had been barred from cultivating their crops in their traditional manner. He argued that the Tribunal’s decision is contrary to the prevailing geological, geomorphological, climatic and soil patterns prevalent in the State and also erroneous in restricting Kerala from optimal cropping patterns. Combined with the Tribunal’s decision to restrict all lift irrigation schemes, the Tribunal’s decision left Kerala with limited cultivation.

349Copy pinpoint349. He has further submitted that Tamil Nadu has been intentionally obstructing Kerala from setting up water projects as it was benefitting from the transitional provisions in the Tribunal’s award. He E submitted that pending the completion of its water projects, Kerala was unable to retain the full amount of 30TMC water allocated to it. The Tribunal has directed Kerala to release water in excess of 30TMC to Karnataka and Tamil Nadu until it is capable of utilizing the full capacity. To benefit from this transitional provision, Tamil Nadu has purposely been impeding Kerala’s water projects. F

350Copy pinpoint350. He submitted that the Tribunal has failed to make provisions for surplus water, restricting Kerala’s water allocation to 30 TMC a year in case of a surplus. This would benefit the other States due to lack of a specific provision for sharing surplus water with Kerala. He also submitted that Tamil Nadu is responsible for wasting large amounts of G water and that the Tribunal has failed to rectify the situation. He also submitted that Kerala ought to be compensated for the water supplied from its Siruvani reservoir to Coimbatore. He referred to the judgments of in In Re: Presidential Reference (Cauvery Water Disputes Tribunal) (supra) and Tamil Nadu Cauvery Neerppasana H

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A Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India and others48 while making his submissions. V. Submissions urged on behalf of Union Territory of Puducherry

351Copy pinpoint351. Mr. Nambiar, learned senior counsel appearing for the Union Territory of Puducherry, submitted that Puducherry had claimed 9 TMC B of water for its needs whereas the Tribunal had allocated only 7 TMC of water to it. Puducherry was now seeking only an additional 1 TMC of water to be allocated to it from the month of June onwards which could either be released by Tamil Nadu or be allocated to Puducherry out of the 10 TMC reserved by the Tribunal for environmental purposes.

352Copy pinpoint352. He submitted that Puducherry’s topography, soil and climatic conditions favoured cultivation of only paddy crop and that no other crop could survive in the heavy clay prevalent in the region’s soil. Further, the topography in the region being plain and monotonous, there was no scope for putting up storage structures for holding water and Puducherry was completely dependent on the water released by Mettur dam. He submitted that Puducherry has 27,000 acres of cultivable area which has remained static over the years and that there is no scope for increase of such area. He also submitted that the rainfall in the region is erratic coming primarily from the North-East monsoons. This resulted in heavy bursts of rain with long, dry spells. Such sudden and heavy influx of water damaged the standing crops and flowed into the sea since there is no facility capable of storing such water. Thus, Puducherry’s only reliable source of water is from the Mettur Dam. However, water released from the Mettur Dam is sometimes insufficient for Puducherry’s needs and is incapable of irrigating Puducherry’s entire paddy crop.

353Copy pinpoint353. He then submitted that there is no extractable ground water in the region due to the intrusion of saline water from the neighbouring Bay of Bengal. He submitted that saline water has intruded 6 kilometres into the land along the river channels and has rendered wells and shallow aquifers unusable for irrigation and domestic needs. In light of this, he submitted that ground water could not be taken into consideration while G allocating river water. He also argued that the Tribunal’s scope of adjudication is limited to inter-State river water and that ground water could not be treated as river water. While the Berlin Rules set out that river water included groundwater, no such definition is available either in the Constitution or any other Indian law. H 48 1990 (3) SCC 440

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354Copy pinpoint354. He also submitted the cropping pattern in Puducherry A required higher allocation of water. He submitted that Kuruvai crop is grown between July and September after which Thaladi crop is grown on the same land and then the Samba crop is grown. He submitted that the Kuruvai and Samba crop could only be planted after flushing off the salt on the land. This flushing required around 0.5TMC of water before planting the crop in June. The Tribunal, however, erroneously directed Puducherry to obtain the requisite water from rainwater, the supply of which was not only erratic but also primarily occurring from October onwards.

355Copy pinpoint355. He submitted that despite the Tribunal having allocated 7TMC of water to Puducherry, such volume is not being made available to it. He submitted that since Puducherry does not have adequate storage capacity, such volume of water ought to be made available by Tamil Nadu at the border.

356Copy pinpoint356. He argued that Puducherry has not filed an appeal under Article 136 of the Constitution against the Tribunal’s final order as it is of the opinion that this Court could not entertain such an appeal against the final order. Hence, Puducherry had filed an application under Section 5(3) of the 1956 Act instead, which is pending. He argued that since this Court is hearing the matter finally, Puducherry’s application under Section 5(3) ought to be considered by this Court.

357Copy pinpoint357. He also submitted that the waters of the Cauvery ought to be free-flowing for effective utilisation and in the light of the same, Karnataka ought not to be allowed to build any further structures to impede/obstruct such flow. W. Arguments on behalf of Union of India F

358Copy pinpoint358. Mr. Ranjit Kumar, the learned Solicitor General of India, contended that the purpose of enacting the 1956 Act is to provide a mechanism for adjudication of water disputes arising among the various States and that it is a complete code in itself. He took this Court through various sections of the Act to buttress his argument that a con-joint reading of Sections 4, 6, 6A and 11 provides for the constitution of a G Tribunal to hear water disputes, the power to make a scheme to implement the decision of the Tribunal and further there is a constitutional bar on the jurisdiction of this Court and other courts in respect of such water disputes. Such extensive provisions highlight that the Act is a complete code in itself. H

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359Copy pinpoint359. He submitted that as per the provisions of the Act, once the Tribunal’s award has been published in the Official Gazette, the same is final and the mechanism for implementation of this award is set out in Section 6A of the Act and empowers the Central Government to make schemes to implement the said award. Such scheme had to be tabled before both Houses of the Parliament. The Central Government is also empowered to decide the jurisdiction and powers of the Authority established to implement the Tribunal’s award. As contrasted with the provisions of the Consumer Protection Act which allowed for the Consumer Forum’s order to be sent to a civil court for execution in case the Forum was unable to execute it, the provisions of the 1956 Act only allows for the award of the Tribunal to be treated as a decree of this Court and be implemented by virtue of a Central Government scheme.

360Copy pinpoint360. It is submitted by Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, that the word used “may” instead of “shall” has a purpose because in certain situations there may be no necessity to frame a scheme for implementation of the awards passed by the Tribunal. He has apprised us that awards were passed by the Krishna Water Disputes Tribunal, Godavari Water Disputes Tribunal and Narmada Water Disputes Tribunal and a scheme for implementation of award was framed when required and only in the case of Narmada Water Disputes Tribunal and no scheme was framed in respect of awards passed by the other Tribunals. According to him, framing of a scheme is not mandatory and the Central Government being alive to its role shall do the needful at the relevant time. It is further argued that it is the mandate of the 1956 Act that the scheme framed under Section 6A is to be by laying before both Houses of the Parliament and, hence, it has to be treated as a legislative policy and, therefore, the Court, in such a situation, should not issue any direction. He has drawn inspiration from the authorities in Atlas Cycle Industries Ltd. and others v. State of Haryana49, Common Cause v. Union of India and others50, K.T. Plantation Private Limited and another v. State of Karnataka51 and Accountant General, State of Madhya Pradesh v. S.K. Dubey and G another52. Learned Solicitor General has also referred to Craies on Statute Law Interpretation which has been noticed with approval in 49 (1979) 2 SCC 196 50 (2003) 8 SCC 250 51 (2011) 9 SCC 1 52 (2012) 4 SCC 578 H