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

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Hukum Chand v. Union of India53 which speaks that there are three A kinds of laying, namely, (i) laying without further procedure; (ii) laying subject to negative resolution; and (iii) laying subject to affirmative resolution. Emphasizing on “subject to affirmative resolution”, learned Solicitor General would contend that Section 6(7) essentially commands that this Court should not issue a mandamus to the executive to enact a B particular law in a particular manner at particular time or a stipulated time frame. He would further urge that Section 6A is a complete code in itself and, therefore, this Court should leave it to the discretion of the Central Government.

361Copy pinpoint361. In oppugnation to propositions put forth by the learned Solicitor General, learned counsel for the other States and the senior counsel for the Union Territory of Puducherry submitted that Section 6A does not confer any extraordinary power on the Union of India except that it has the authority to frame a scheme singularly for implementation of the award as passed by the Tribunal or if modified by this Court. The further submission is that the formulation of the scheme and other procedural ancillaries do not confer any greater status on the authorities coming into existence under the scheme. X. Our findings on issues of allocation X.1 Principles of apportionment to be followed:

362Copy pinpoint362. Having dealt with the issues of paramountcy, perceived unconscionability of the Agreements, continuation thereof after coming into force of the 1956 Act as well as non-maintainability of the dispute on the basis of such Agreements being in infraction of Article 363, it is now essential at this juncture, in the backdrop of the above contentious assertions, to dwell on the principles of allocation of water of the inter- F state Cauvery river and the make-up thereof for uniform application. That apart, the fact of the Agreement of 1924 having expired after 50 years in the year 1974 has been already determined. As rightly minuted by the Tribunal, having regard to the progression of events after the execution of the said Agreement, the accusations of breach and violations of the Agreement have to be treated as inconsequential at this distant G point of time. Besides, there is no objective and judicially manageable standard to examine and evaluate the same in a golden scale or embark upon in an exercise of exactitude and precision to weigh the impact thereof for determination of allocation of the share. 53 (1972) 2 SCC 601 H

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363Copy pinpoint363. As enunciated by this Court in In Re: Presidential Reference (Cauvery Water Disputes Tribunal) (supra), the waters of an inter-State river passing through the corridors of the riparian States constitute national asset and cannot be said to be located in any one State. Being in a state of flow, no State can claim exclusive ownership of such waters or assert a prescriptive right so as to deprive the other B States of their equitable share. It has been propounded therein that the right to flowing water is well-settled to be a right incident to property in the land and is a right publici juris of such character, that while it is common and equal to all through whose land it runs and no one can obstruct or divert it, yet as one of the beneficial gifts of Nature, each C beneficiary has a right to just and reasonable use of it. We endorse the view of the Tribunal in the attendant perspectives that the acknowledged principle of distribution and allocation of waters between the riparian States has to be done on the basis of their equitable share, however contingent on the facts of each case.

364Copy pinpoint364. For the sake of brevity, we do not intend to dilate anew on the judicial precedents on this aspect of sharing of water of inter-state river and the evolution and/or shift of the principles relatable thereto from the “Harmon Doctrine” to that of equitable apportionment, a prescript internationally recognized and being applied in resolution of disputes pertaining thereto. This principle of equitable apportionment as is now intrinsically embedded generally in a pursuit for apportionment of water of an international drainage basin straddling over two or more States predicates that every riparian State is entitled to a fair share of the water according to its need, imbued with the philosophy that a river has been provided by nature for the common benefit of the community as a whole through whose territory it flows even though those territories may be divided by frontiers as postulated in law. With reference, in particular, to the Helsinki Rules of 1966, it has been expounded hereinbefore that Articles IV and V thereof recognize equitable use of water by each basin State, setting out the factors, not exhaustive though, to be collectively taken into consideration as a whole. The view that the principle of equality does not imply equal division of water but connotes equal consideration and equal economic opportunity of the co-basin States and that justice ought to be done to them, has been emphasized in the course of the arguments. To conceive that equality rests on equal sharing of water within an arithmetical formula, would be fundamentally violative of the established conception of equitable apportionment because the

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said concept inheres a multiple factors. It is the obligation of the Tribunal A to address the same and the duty of this Court is to adjudge within the permissible parameters of the justification of the said adjudication. To reiterate, having regard to the above propositions as well as the provisions of the 1956 Act, the dissension has to be addressed in the backdrop of equal Status of the States and the doctrine of equitability. B

365Copy pinpoint365. Though noticed in the passing hereinbefore, the prevalent rules as guiding precepts to endeavour equitable apportionment of waters of an international drainage basin and conceptually extendable to an inter-state river deserve somewhat detailed scrutiny.

366Copy pinpoint366. There is no quarrel that the Helsinki Rules on the use of waters of international rivers lack statutory status of binding nature, yet the same, having been adopted by the International Law Association in its Conference held at Helsinki in August, 1966, set down the criteria to determine equitable utilization of waters of an international drainage basin. As the relevant portion thereof has been extracted before it is not necessary to reproduce the same. However, suffice it to refer to the relevant clauses for the present purpose. The statement in Article I that the general rules of International Law, as contained in the Chapters comprising the Rules, are applicable to the use of the waters of an international drainage basin except as may be provided otherwise by convention, agreement or binding custom among the basin States, attests the non-statutory character thereof. Article II defines international drainage basin to be a geographical area extending over two or more states determined by the watershed limits of the system of waters, including surface and underground waters, flowing into a common terminus. The idea of international drainage basin per se inherits some identifiable flexibility of the basin vis-a-vis the constituent states, separated by watershed limits of the system of waters so much so that in an exigent fact situation the basin need not be rigorously confined to the area immediately abutting it in a given state but depending on the situational topography may include other areas of the state concerned entitled to the benefit of the basin. The perception of “basin state” as explicated in Article III is a state, the territory of which includes a portion of an international drainage basin and projects it to be a single synthesized territorial component. As per Article IV, under Chapter II of the Rules, each basin state is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international H

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A drainage basin. Article V enumerates the relevant factors, not exhaustive or limited thereto, to determine the reasonable and equitable share within the meaning of Article IV. These factors being unavoidably required to be extracted, are quoted hereinbelow:- “1. The geography of the basin, including in particular the extent B of the drainage area in the territory of each basin state;

2. The hydrology of the basin, including in particular the contribution of water by each basin state;

3. The climate affecting the basin;

C 4. The past utilization of the waters of the basin, including in particular existing utilization;

5. The economic and social needs of each basin state;

6. The population dependent on the waters of the basin in each basin state; D

7. The comparative costs of alternative means of satisfying the economic and social needs of each basin state;

8. The availability of other resources;

9. The avoidance of unnecessary waste in the utilization of E waters of the basin;

10. The practicability of compensation to one or more of the co- basin States as a means of adjusting conflicts among uses; and

11. The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin state.” F [Emphasis supplied]

367Copy pinpoint367. Article V explicates in clear terms that the weight to be given to each factor as above is to be determined by its importance in comparison with that of other relevant factors, but in determining what is reasonable and equitable share, all relevant factors are to be considered together and the conclusion has to be reached on the basis of the whole. The above factors, although not exhaustive, have been construed to be of significant bearing to ascertain the reasonable and equitable share of waters in an international drainage basin. The said principles can be regarded as functional dynamics while equitable distributing the water in an inter-State river disputes. The salient feature of all these factors has

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to have inherent variability and inevitable flexibility thereof having regard to the local conditions, for it is difficult to ignore the undeniable and common emphasis necessary to ensure beneficial use of the available resources for a basin state and logically for its dependent populace warranted by the economic and social needs. Be it stated, while determining the said needs, amongst others, past and existing utilization of the water have to be borne in mind. To remain oblivious to the same would amount to playing possum with the doctrine of equitable distribution in praesenti. The noticeable quintessence of the determinants is the predication for a delicate balance in adjustments of the needs based on realistic, reasonable, judicious and equitable canons so much so that while satisfying the requirements of a basin state, a co-basin state is not subjected to any substantial injury. Though in terms of Articles VI and VII, any other category of users is not entitled to any inherent preference over any other use or category of users, yet the precedence of an existing reasonable use of a basin state over a proposed future use of a co-basin state has been recognized. Significantly, in terms of Article VIII, an existing reasonable use may continue in operation, unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use clearly signifying that an existing use is also not absolute in terms and is subject to exigency based adjustments.

368Copy pinpoint368. Substantially on the same lines is the Campione Consolidation E of ILA Rules on International Water Resources 1966-1999 (hereinafter to be referred to as the “Campione Rules”). The distinguishing attribute of these Rules is the inclusion of water of an aquifer, i.e., underground water or “fossil waters” intercepted by the boundary between the two or more states as international ground water so much so that it would F form an international basin or part thereof qua the relevant factors to determine reasonable equitable share. These Rules include the criterion of interdependence of underground waters and other waters, including any interconnections between aquifers and any leaching into aquifers caused by activities in areas under the jurisdiction of the basin states. G

369Copy pinpoint369. The next in line, before adverting to the National Water Policy of 1987 and 2002, is another set of rules on international drainage basin called the Berlin Rules adopted by the International Law Association in its Berlin Conference in the year 2004. On the aspect of equitable utilization, Article 12 thereof provides that basin states would in their H

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A respective territories manage the waters of an international drainage basin in an equitable and reasonable manner, having due regard for the obligation not to cause significant harm to other basin states and in particular, the basin states, would develop and use the waters of the basin in order to attain optimal and sustainable use thereof. The interest of the other basin states are to be kept in view. B

370Copy pinpoint370. Article 13 of the Rules catalogues as well the relevant factors to determine the equitable and reasonable use of a basin state. While reiterating in essence the Rules as prescribed by the Helsinki Rules, the additional aspect to be considered is minimization of environmental harm. Article 14 of these Rules stipulates that in determining an equitable and reasonable use, the states shall first allocate waters to satisfy vital human needs and that no other use or category of uses shall have an inherent preference over any other use or category of uses. Article 17 postulates that every individual has a right of access to sufficient, safe, acceptable, physically accessible and affordable water to meet his vital human needs and it is the obligation of the States to ensure the implementation of right of access to water on a non-discriminatory basis.

371Copy pinpoint371. The common thread decipherable from these Rules is the universal acknowledgment of the principle of equitable utilization as an effective and workable tool for the management of waters of an international drainage basin.

372Copy pinpoint372. Presently, we shall refer to the National Water Policy which, in our estimate, occupies an extremely significant space to spearhead the planning and development of water resources. In its 1987 version, it sounded a threshold caveat that water is a prime natural resource, a F basic human need and a precious national asset. While emphasizing that this resource is one of the most crucial elements in development planning, the policy announced that it is a scarce and precious national asset to be planned, developed and conserved on an integrated environmentally sound basis, keeping in view the needs of the States concerned. It underlined that resource planning in the case of water has to be done for a G hydrological unit such as drainage basin as a whole or for a sub-basin and that all individual developmental projects and proposals should be formulated by the States and considered within the framework of such an overall plan for a basin or sub-basin so that the best possible combination of options can be made. H

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373Copy pinpoint373. As is manifest from the policy, it enjoined that water should be made available to water deficient areas by transfer from other areas including transfers from one river basin to another based on national perspectives after taking into account the requirements of the areas/ basins. That apart, making provision for drinking water should be a primary consideration which was also highlighted. As regards the ground water resources, it was marked that exploitation thereof should be so regulated as not to exceed the recharging possibilities as also to ensure social equity and to prevent ingress of sea water into sweet water aquifers. In the realm of planning and operation of systems, water allocation priorities were broadly outlined as (a) drinking water, (b) irrigation, (c) hydropower, (d) navigation and (e) industrial and other uses. C

374Copy pinpoint374. As far as the allocation is concerned, the uses are to be governed by the rider that these priorities must be modified, if necessary, in particular region with reference to area specific considerations. In conclusion, the policy laid stress that in view of vital importance of water for human and animal life, for maintaining ecological balance and for D economic and developmental activities of all kinds and considering its increasing scarcity, the planning and management of this resource and its optimal, economical and equitable use has become a matter of utmost urgency. It emphasized that the success of the National Water Policy would depend entirely on the development and maintenance of a national consensus and commitments to its underlying principles and objectives. E Significantly, the Policy, which is a national charter for Planning and Development of Water Resources for its disciplined and judicious utilization recognizes and accepts it to be scarce and valuable bounty of nature to be developed, conserved and put to planned use on an environmentally sound basis with due regard to the needs of the State F concerned. The Policy, thus, sustains the concept of basin state as contemplated in the Helsinki Rules, Campione Rules and Berlin Rules.

375Copy pinpoint375. It is worthy to note that it significantly underlines that water starved areas ought to be serviced by transfer from one river basin to another based on national perspective after taking into account the needs G of such areas/basins. Drinking water has been assigned the highest priority in the category of uses. Though use of ground water resources has not been wholly debarred, yet regulated exploitation thereof, not in excess of recharging possibilities, has been highlighted.

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376Copy pinpoint376. The National Water Policy of 2002 which is a revised and updated form of the earlier model, reiterates the emphasis on the need for planning, development and management of the water resources from the national stand point. Pertaining to water allocation priorities, this Policy added to the list, in particular, ecology and agro industries and non- agricultural industries, qualifying that the priorities as enumerated could be modified or added if warranted by the specific considerations of the areas/regions. The primacy of drinking water was reiterated. On the aspect of ground water development, it was stated that a periodical re- assessment of the ground water potential on the scientific basis should be made taking into consideration the quality of water available and the economic viability of its extraction. Same caution against over exploitation of ground water was sounded. It was, inter alia, mandated that adequate safe drinking water facility should be provided to the entire population, both in urban and in rural areas, and irrigation and multipurpose projects should invariably include in it drinking water component wherever there is no alternative source of drinking water. It was clarified that drinking water needs of human beings and animals should be the first charge on any available water. Qua irrigation, the Policy stated that planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost effective irrigation options possible from all available sources of water and appropriate irrigation techniques for optimising water use efficiency. The aspect that the irrigation intensity should be such as to extend the benefits of irrigation to a large number of farm families as much as possible, keeping in view the need to maximize production, was also underlined. It was most importantly provided that water sharing/distribution amongst the States should be guided by national perspective with due regard to the availability of water resources and the needs within the river basin. The Policy, therefore, did not bar as such the sharing or allocation of water in areas within the basin state. In conclusion, the Policy recorded that its success would depend entirely on evolving and maintaining national consensus and commitment to its underlying principles and objectives. It also laid emphasis on the needs of the community that requires to be taken into account for the development and management water resources.

377Copy pinpoint377. The national policies of the country as above, therefore, evidently supplement and consolidate the prescriptions of the Helsinki Rules, Campione Rules and Berlin Rules in the matter of ascertainment of reasonable and equitable share of water in an inter-state river. To

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reiterate, the Helsinki Rules and the other Rules envisage a basin state A on the issue of equitable apportionment of an inter-State river. Though the Rules predicate that in determining the share of one basin state, the other co-basin states would not be subjected to substantial injury, yet the clear emphasis is to fulfill the economic and social needs of the population of the State and in the sphere of irrigation, its farmer community. B Indubitably, the principle of apportionment would apply uniformly to all river basins in a State. The sharing of an inter-state river, as the professed norms of distribution suggest, has to be with the spirit of harmonious disposition and equanimous dispensation. The norms or the factors suggested, understandably, can never be exhaustive and designed only a balanced framework of pragmatic measures to ensure beneficial use of C water resources in an inter-State river on need-based application thereof and reciprocal adjustments for common good. In the regime of a welfare state wedded to the guarantees enshrined in the National Charter, any yardstick for distribution of any national asset like water would have to be essentially in furtherance thereof. The criteria identified in the Rules D and supplemented by the national policies in letter and spirit, though in quite detail, can only be construed as illustrative and cannot be perceived as a strait-jacket formula or put in a compartment of mathematical exactitude to exclude any other consideration or exigency to effect a desirable apportionment of water of an inter-state river depending on the prevalent eventualities. Having regard to the geographic, hydrographic, hydrological, hydrogeological, climatic, ecological and other fluvial phenomena attendant on time, the spectrum of priorities and the factors associated therewith are bound to vary. Be it clearly stated that while no precise formula can be adopted, there has to be a sincere and pragmatic endeavour to have a rational amalgam of globally accepted norms and the local necessities founded on the doctrine of fairness and equity. The factors already enumerated, needless to say, may inter se demand precedence of one over the other depending on the ground realities, the ultimate test being to ensure that the allocations on the basis thereof in favour of one basin State ought not to be substantially detrimental to the co-basin States. The order of precedence in the areas of necessity, as set out in the National Policy, is not incompatible with the acknowledged determinants for ascertaining the reasonable and equitable share of an inter-State river. Nevertheless, the weightage of one item of need would depend in a given situation on the degree and priority thereof thereby necessitating grant of preference of one over the other in departure of H

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A the sequence set out in the policy. This again is to underline the attribute of variability in the approach of application of the otherwise identified criteria, the ultimate goal being equitable apportionment of the resources. This concept gains more significance where the resource is scarce and inadequate qua the demand thereof. It is warrantable as the dispute involves the inhabitants of one State with the inhabitants of another State. B Such involvement by statutory command engulfs the principle of obtaining situational adjustment having due regard to priority. In the above predominant conspectus, in our estimate, the factors as set out in the Helsinki Rules and endorsed as well as supplemented by the Campione Rules and the Berlin Rules and further consolidated by our national policies as above are efficient, rational, objective and pragmatic guidelines to conduct any exercise for determining the reasonable and equitable share of basin States in the water of an inter-state river like Cauvery as in the present case.

378Copy pinpoint378. With these guidelines at disposal, the endeavour has to be essentially to ensure an appropriate balance of the genuine competing demands and interests of the basin States. The balancing has to be done in a pragmatic and feasible manner so that it will be ultimately functional and meet the aspirations of the riparian States. In such a working process, there has to be adjustment of the available resources. That apart, the process indeed has to be informed with egalitarian vision for achieving utilitarian ends keeping in view the inclusive spirit and the pluralistic ethos. Thus viewed and understood, periodical reviews to update the allocations merited by changes in the aforementioned natural and environmental phenomena bearing on the resources for supply and resultant reorientation of the inter se needs of the basin States, would have to be unfailingly undertaken on time.

379Copy pinpoint379. It needs to be stated that the gravamen of the rival assertions span from wrong application of the principles of equitable apportionment to the facts of the case, defective assessment of the materials on record bearing on the requirements registered by the competing States, faulty approach in the matter of evaluation of the parameters bearing in particular on the crop water requirement, ground water availability and use and unmerited rejection of various projects as testimony of rightful claims to resultant inaccurate allocation of the water of the inter-state river involved. As detailed hereinbefore, the impugned decision of the Tribunal would demonstrate that it had undertaken a detailed exercise H

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on the basis of the pleadings of the parties, the evidence, oral and documentary, including several contemporary official records and statistics supplemented by the testimony of various acclaimed experts in the field of water research and use over the years. Having regard to the jurisdiction being exercised, we would, in this factual backdrop, test the competing contentions on the basis of broad features of the controversy and the established legal postulates applicable thereto and interfere in the event of any discernible vitiating infirmity, incurably afflicting the adjudicative pursuit of the Tribunal thereby rendering its appraisal of the materials on record on any issue as well as the final determination to be patently unsustainable. X.2 Determination of ‘irrigated areas” in Tamil Nadu and C Karnataka:

380Copy pinpoint380. As we notice, the Tribunal, after adopting the principle of equitable apportionment, in the process of computing the reasonable and equitable shares of the basin States as the first initiative, determined the irrigated areas of the States and in doing so, noted from the report of the D Cauvery Fact Finding Committee submitted in the year 1972 that the utilization of waters of Tamil Nadu including Karaikal region of the Union Territory of Puducherry, Mysore and Kerala had been 566.60 TMC, 176.82 TMC and 5 TMC respectively. As the background of the Agreements of 1892 and 1924 would reveal, the State of Karnataka had E been raising persistent protests against the restraints put on it on the use of the waters of the river for which it alleged that it was not possible on its part to irrigate lands even as envisaged in the Agreement of 1924. This was clearly by way of its remonstrance against Tamil Nadu’s endeavours to wrest its dominion over the water by exercising its prescriptive right to the natural flow thereof within its territories. F Noticeably, the principle of equitable apportionment, as has evolved over the time, has not been and rightly not disputed by the party-States as the yardstick for the allocation in praesenti. In view of the fact that river Cauvery is deficit in its water content compared to the demands of the riparian States involved, restrictions and savings in the matter of use G thereof are not only necessary but also natural corollaries. In that view of the matter, it is incumbent to identify the areas under irrigation with the expansion thereof with time, together with the crop pattern and the suitability thereof, having regard to the extent of utilization of the deficient surface flow available. On the basis of the reports of the various H

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A Committees and the recorded data referred to hereinabove, the bearing of the 1924 Agreement in particular over the march of events cannot also be totally disregarded. The Tribunal, after taking into account all these factors, vis-a-vis Tamil Nadu, applied the restrictions to work out the irrigated area to which it would be entitled to assert its share of allocation, namely, no area for summer paddy; area of summer paddy B raised prior to 1924 to be replaced by semi-dry crop; annual intensity of irrigation to be restricted to 100%; cropping period to be restricted within the irrigated season, i.e., 31st June to 31st January and ambitious lift irrigation schemes to be discouraged. It, thus, quantified such area for Tamil Nadu to be 24.71 lakh acres against its claim of 29.26 lakh acres. C As far as Karnataka is concerned, the Tribunal noticed that in the pre 1924 Agreement era, irrigation in the then State of Mysore was primarily from direct diversion channels from the rivers together with the system of tank irrigation and that in the absence of any reservoir, the waters of Cauvery and its tributaries like Kabini, Hemawathi, Harangi and Suvaranwathi used to flow through the State but their ultimate destination was the Delta State of the then State of Madras as a result whereof, even as admitted by the State of Tamil Nadu, Karnataka could develop only 3.14 lakh acres of land by 1924. This inability of the State of Karnataka to develop its land for irrigation in the background of its persistent cavil of being deprived of its legitimate share and use of the water of Cauvery cannot be ignored. It is a recorded fact that though under the 1924 Agreement, Karnataka in terms of the relevant provisions thereof ought to have developed 7.45 lakh acres by 1974, it could achieve only 2.15 lakh acres. However, the Tribunal in all allowed 18.85 lakh acres of area to Karnataka being under irrigation prior to 1974 against its claim of 20.98 lakh acres. In case of Karnataka as well, the Tribunal F excluded the development of second crop in view of the scarcity of water in the basin with due regard to the rainfall pattern and even suggested restrictions on the crop variety and the duration thereof. On an overall consideration of the relevant materials to which our attention has been drawn, we are of the view that having regard to the imperative of economy of consumption of water, the approach of the Tribunal cannot be found fault with having regard to the exiting situation X.3 Assessment of water for “irrigation needs” in Tamil Nadu and Karnataka:

381Copy pinpoint381. We may analyse the present demand qua the assessment of crop water requirement of the basin states, the relevant information of

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which had been furnished by them in common format supplemented by A the oral testimony of experts and documentary evidence. They registered their demand for allocation as hereinbelow: Tamil Nadu – 566 TMC Karnataka – 466 TMC B Kerala – 100 TMC Union Territory of Pondicherry – 9 TMC The Tribunal, to reiterate, to ensure equitable share to each State, applied the following criteria: C (i) Double crop only over areas before the Agreement of the year 1924 and as permitted under the said Agreement and not beyond. (ii) Summer crop restricted in some areas where it was grown prior to 1924 Agreement which ought to be replaced by D any light irrigated crop within the irrigation season. (iii) Delta to be reduced in view of new variety of paddy and developed techniques which require lesser Delta of water. (iv) No transbasin diversion. E (v) No lift schemes.

382Copy pinpoint382. As the records reveal, after the evidence of the expert witnesses was recorded, as required by the Tribunal, the States filed their affidavits furnishing details of water requirements as well as the crops grown by them together with an indication of a minimum crop water requirement. The affidavit filed on behalf of Tamil Nadu was marked as Ext. TN1665 and that of Karnataka as Ext. KAR518. Hence, we shall analyse the ultimate determination by the Tribunal and scrutinize its ultimate justification. As has been noted earlier, there has been a considerable dispute over Ext.1665 and the area of dispute relates to the violation of the principles of natural justice, non-providing of opportunity of cross-examination, admissibility of the affidavit in evidence and, above all, the transgression of the sense of propriety by the State of Tamil Nadu. We have already stated that what had already been available on record can be considered from the factual assertions of the affidavit. Be that as it may, there has to be an adjudication by this Court and not allow H

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A the main protagonist States to keep the fight in continuance. The Tribunal, as is demonstrable, on the basis of the overall materials before it, took note, amongst others, of the crop pattern, duration of the crops, consumption of water thereby, soil conditions conducive thereto, rainfall pattern, Delta and system efficiency along with the drought conditions of Karnataka as projected by it, in conjunction with the testimony of the expert witnesses of both the States of Tamil Nadu and Karnataka, and in the interest of economical use of the water of the deficit basin, allocated 250.62 TMC to Karnataka for its irrigated area of 18.85 lakh acres and 390.85 TMC to Tamil Nadu for its irrigated area of 24.71 lakh acres. Significantly, it is worthwhile to notice, in this context, the recommendations of the Cauvery Fact Finding Committee required restriction on double crop paddy area; introduction of short duration variety in place of “Samba” crop and preference to crops needing less water. Further, the Tribunal has considered the crop water requirement, namely, crop duration, ET crop, puddling requirements, percolation losses, effective rainfall and system efficiency. Keeping in view the accepted principles, we find that neither the analysis undertaken by the Tribunal nor the findings relatable thereto can be regarded as implausible by any standard. Certain parameters have been exhaustively examined by the Tribunal on the basis of the materials brought on record with supporting reasons and, therefore, the conclusion on this score cannot be termed as untenable warranting interference in the exercise of this Court’s jurisdiction under Article 136 of the Constitution of India. We may pause here to clarify. In our first verdict that pertained to the delineation of the maintainability of appeals by special leave while holding the appeals to be maintainable, we had kept it open for advertence at a later stage the issue whether there should be broad approach or a narrow one. After F hearing all the sides at length, at this juncture, we are inclined to say that while adjudicating a matter of such a nature we cannot be totally guided exclusively either by “broad” or extraordinary discretionary or “narrow” or restrictive approach but think it appropriate to have an intermediary approach as the controversy covers a span of more than 100 years G involving change in boundaries, population growth and subsequent events. We may hasten to add that though the parameters of applicability of Article 136 can be broad to appreciate the materials and scrutinize the manner of appreciation by the Court/Tribunal depending upon the lis raised. In the present appeals preferred by special leave, we think it condign to adopt an approach which is neither broad nor narrow but an H

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“intermediary one”, especially having regard to the nature of the dispute that involves the inhabitants of three States and a Union Territory.

383Copy pinpoint383. In the realm of determination of irrigated area, the assessment by the Tribunal, as we find, encapsules the factual and characteristically complex situation. Lands have already been irrigated. It is an issue of sustenance at the ground reality level. To reduce the allocation of water on this core would be inequitable. Therefore, in the obtaining fact situation, in our comprehension, no interference is warranted. That apart, having regard to the degree of wiredrawn complexities involved, requiring in- depth expertise to dislodge the otherwise well-reasoned findings of the Tribunal founded on an exhaustive appreciation of the materials on record, we are not inclined to upset the determination made by it in this regard. C On an overall scrutiny of the materials to which our attention had been drawn, we are in general agreement with the approach and assessment made by the Tribunal and the deductions made by it on the basis thereof. Sans rhetoric and emotionally appealing submissions, we find that the rival contentions are equally balanced and to reiterate, on an overall consideration of the materials on record, we do not feel persuaded to differ with the Tribunal’s adjudication. X.4 Water allocation for the State of Kerala:

384Copy pinpoint384. In respect of the claim of Kerala, it is a matter of record that rainfall is evenly distributed over the months of May to November so much so that occasional support by artificial irrigation is required in the instances of shortfall in rains and that too during small periods. Against its demand of 99.8 TMC under different heads, it had demanded 35 TMC for transbasin diversion to generate hydro-electrical power. The Tribunal rejected the State’s request for transbasin diversion for hydro- F power projects which, in terms of the National Water Policy of 2002, was even otherwise lower in preference to drinking water and irrigation. The Tribunal in adjudging the State’s share did notice that it had been unsuccessful in furthering its projects so much so that pending the completion and utilization thereof, the unutilized water allocated to it subject to the mechanism set up by the Cauvery Management Board/ G Regulatory Authority, would be received by Tamil Nadu. The Tribunal examined the information furnished by it in the common format and adjudged 29.76 TMC which was rounded upto 30 TMC as its share after due regard to its demand, amongst others, pertaining to different projects in Kabani, Bhavani, and Pambar basins having regard to their H

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A individual features and corresponding crop water requirement. This allocation included the share for domestic and industrial water purposes as well with the population projection for 2011. The findings of the Tribunal are not belied by the materials in support thereof and, therefore, we are inclined to accept the same. B X.5 Water allocation for the Union Territory of Puducherry:

385Copy pinpoint385. With regard to the claim of Union Territory of Puducherry for Karaikal region, it is a matter of record that because of its close proximity to the sea, the ground water by its nature is unsuitable for drinking and irrigation purposes and, thus, the Tribunal having regard to C its irrigated area of 43000 acres allowed its second crop in departure from the yardstick applied for Karnataka and Tamil Nadu and granted 6.35 TMC by way of crop water requirement. It also relieved the Union Territory of the application of 20% consumptive utility formula while assessing its domestic and industrial water requirements. In the absence of any convincing reason to determine otherwise, the adjudication of the D Tribunal on this count does not deserve any interference. X.6 Recognition of ground water as an additional source in Tamil Nadu:

386Copy pinpoint386. While exploring the possibility of ground water as an additional source to be conjunctively used along with the surface flow of river Cauvery, the factual matrix reveals, based on empirical data, that the contributions thereto are from surface water through infiltration into the ground by way of natural recharge, stream flow, lakes and reservoirs. The recharge of ground water is principally from rainfall as well as artificial modes, namely, application of water to irrigate crops, flooding of areas caused by overflowing of streams to their sites and seepage from unlined canals, tanks and other sources. Ground water, as the study by the Central Ground Water Board, Ministry of Water Resources, Government of India attests, caters to more than 45% of irrigation in the country. As against the stand of Tamil Nadu that the ground water within its Delta areas is mainly by way of recharge from the supplies of Mettur Dam which really is a component of the surface flow of river Cauvery and further that the same is utilized by the farmers for raising of early nurseries ahead of releases from Mettur and for irrigating belated crops after stoppage of Mettur releases, exhaustive studies undertaken, amongst others, by the Central Ground Water Board, Ministry of Water H Resources, Government of India, Irrigation Commission, 1972 and United

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Nations Development Programme evidenced availability of replenishable A ground water in Tamil Nadu. The United Nations Development Programme in its report, amongst others, mentioned that yearly quantity of ground water that can be extracted by using centrifugal pumps in the Cauvery sub-basin, Vennar sub-basin and in the new Delta was 33.7 TMC, 5.4 TMC and 32.5 TMC respectively and in addition 56.5 TMC B of ground water per year can also be made available in the Cauvery sub-basin by lowering seasonally ground water level to 10 meters depth below the regional ground water level. Other studies made by the team of the Central Ground Water Board indicated ground water potential in the Delta area of Tamil Nadu to the extent of 64 TMC. The report of Mr. W. Berber, Consultant, World Bank on Ground Water Resources of C Cauvery Delta estimated the available ground water in Cauvery Delta at 51.56 TMC. Apart from the above, Tamil Nadu, in its pleadings, admitted that the total ground water extraction during the year 1989 was approximately 28.4 TMC in the Cauvery sub-basin, 7.3 TMC in the Vennar sub-basin and 11.3 TMC in the Grand Anicut Canal area (new D Delta area) totaling 47 TMC. Tamil Nadu, in its pleadings, also mentioned that in the old Delta, there was a scope of conjunctive use of ground water to the extent of 30 TMC. On the basis of these recorded and empirical inputs, the Tribunal returned a finding that in a normal year when there would be regular releases of water from Mettur, the bulk of contribution to ground water in the Cauvery sub-basin would be from such releases, but in any case, the contribution from surface irrigation and rainfall could by no means be overlooked. On weighing the pros and cons and having regard to the severe limitations in the mechanism for assessment of ground water resource, the Tribunal made an extremely safe estimate of 20 TMC of ground water which, in its view, could be used by Tamil Nadu conjunctively with surface water. In categorical terms, the Tribunal clarified that this quantum was arrived at after excluding the component of ground water recharge from river water bilateral infiltration. In other words, the Tribunal estimated 20 TMC of ground water available in the State of Tamil Nadu which was independent of any contribution from the surface flow of the river Cauvery and, thus, could be construed to be a stock available with it unconnected with the yield of 740 TMC otherwise quantified for allocation. It is in this context that the assertion made on behalf of Karnataka that ground water being a renewable resource, if not extracted regularly, would reduce the absorption capacity of the underlying aquifer resulting in rain water/ H

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A surface water turning into wastage as run-off and that the admission of Tamil Nadu in its pleadings of availability of 30/47 TMC as ground water warranted reduction of at least 20 TMC, as estimated by the Tribunal, from the final allocated share of Tamil Nadu with proportionate reduction in the quantum of water to be provided by Karnataka at the inter-state border, assumes significance. In our view, having regard to the B overwhelming empirical data following multiple research studies by different authorities authenticating beyond doubt availability of replenishable ground water in the Delta areas of Tamil Nadu, 20 TMC of ground water quantified by the Tribunal is an eminently safe quantity to be accounted for in finally allocating/apportioning the share of Cauvery C water. While expressing this view, we are not unmindful of the stand of Tamil Nadu and the aspect that over-extraction of ground water in the absence of adequate replenishment and further in the areas proximate to the coastal zone is generally avoidable. However, in the attendant facts and circumstances, in view of the studied scrutiny of all pertinent facets of the issue by balancing all factors, we are of the unhesitant opinion that at least 10 TMC of ground water available in the Delta areas of Tamil Nadu can be accounted for in finally determining the apportionment of the share of the otherwise deficit Cauvery basin without touching the yield of 740 TMC.

387Copy pinpoint387. To recall, the national policies discussed above, do not, as such, debar the conjunctive use of ground water, the only caveat being periodical assessment on a scientific basis thereof and to guard against exploitation of the said resource so as not to exceed the recharging possibilities. The series of research studies made by different authorities and the range of availability of ground water as indicated by the experimental data, in our view, not only demonstrate availability of ground water in the Deltas in the State of Tamil Nadu but also that adjustment of 10 TMC thereof, as proposed, would be safely permissible. Noticeably, the kind of experiment and research that had been made in the realm of ground water availability in the Deltas of Tamil Nadu has not been undertaken in Karnataka and there is no reliable empirical data with regard thereto vis-a-vis that State. X.7 Water allocation for Domestic and Industrial purposes in Tamil Nadu:

388Copy pinpoint388. With regard to the computation and allotment of water for domestic and industrial purposes in Tamil Nadu and Karnataka, we are

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in agreement with the formulae noted and applied by the Tribunal in A working out the per capita daily requirements of the urban and rural population. There is also no reason to differ from the postulation with regard to the percentage of actual utilization qua various heads of uses, namely, irrigation, power, domestic and municipal water supply, industrial use, etc., as referred to in the Report of the Cauvery Fact Finding B Committee which, for our immediate purposes, indicate that whereas 20% of the quantity of water supplied would be actually consumed in domestic use, only 2.5% would be effectively utilized for industrial use within the basin and the rest would return to the source, i.e., river or its tributaries or the reservoir, storage and canal, as the case may be. X.8 Water allocation for Domestic and Industrial purposes of State C of Karnataka:

389Copy pinpoint389. As regards the grievance of the State of Karnataka that while quantifying the allocation of water for domestic purposes, the Tribunal had accounted for only 1/3rd of the city of Bengaluru to be falling within the river basin and had, as a result, drastically cut down its D overall share under this head. It is significant to notice that in its statement of case, Karnataka had registered its claim for water for domestic and industrial uses as hereunder:- Bangalore water supply – 30 TMC E Urban water supply (other than Bangalore) – 10 TMC Rural water supply – 6 TMC Industrial uses – 4 TMC This along with its claim for irrigation - 408 TMC and for power projects (reservoir losses 6 TMC and Thermal Power Project - 1 TMC) – totals to 465 TMC. Karnataka, therefore, registered a claim of 30 TMC only for the city of Bengaluru. The Tribunal, at the first instance, presumed that 50% of drinking water requirement would be met from the ground water sources as it is generally seen that wells and tube- wells in urban and rural areas cater to substantial requirement of drinking water. While noting that it had called for information in the common format whereby the States had been required to project their population for the year 2000 and 2025 for working out drinking water requirement, the Tribunal, however, decided to assess the drinking water requirement as in the year 2011. On the basis of the information available, it held that H

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A only 1/3rd of the Bengaluru city lay within the Cauvery basin as was urged in the course of the arguments. It, therefore, limited its consideration of drinking water requirement of Bengaluru to that area only which was located within the Cauvery basin. It noticed that Karnataka had stated that the existing and ongoing drinking water schemes for the city were for 14.52 TMC in all as in June 1990 and also that it had claimed 30 B TMC for Bengaluru city in its projection for 2025. The Tribunal, as is perceptible, was disposed to work out the water requirement for urban and rural population on the basis of population projection of the basin for the year 2011 by adopting the percentage decennial growth for the year 1981-1991 census, district-wise and the area of each district falling within C the Cauvery basin as furnished by Karnataka. The population projection of Bengaluru city on the Census Report of 2011, as furnished by Tamil Nadu, was taken note of as well. The Tribunal next quantified the water requirement of urban population to be 8.70 TMC and for rural population at 8.52 TMC. The Tribunal, as a consequence, proceeded to quantify the total drinking water requirement for urban and rural population to be D 17.22 TMC (8.70 TMC + 8.52 TMC). It next assumed that 50% of the drinking water requirement would be met from ground water and the remaining 50% from the surface water. Thus, segregating 8.75 TMC to be catered to by the surface water, it worked out the consumptive use, i.e., 20% of the total for the human population including live stock to be E 1.75 TMC (20% of 8.75 TMC).

390Copy pinpoint390. Apart from the fact that there is no basis whatsoever for the Tribunal for having quantified the water requirement for urban population to be 8.70 TMC as well as for rural population to be 8.52 TMC, its assumption that 50% thereof would be met from ground water only in view of its perception that wells and tube-wells in urban and rural areas cater to the substantial requirement of drinking water, in our view, is unacceptable and cannot be sustained. That apart, in the context of Bengaluru city, especially in view of the growth and rise of population in space and time, the Tribunal’s approach of confining the entitlement of its population in general to only 1/3rd of their requirement only in view of the location of 1/3rd of its physical entity within the Cauvery basin demands scrutiny. True it is, the concept of a basin and the beneficial uses of the water thereof ought to be traced generally to the sites and population thereof located in the basin, nevertheless, the principles of apportionment and the conception of reasonable and equitable share perceived for such H

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uses comprehend a basin State addressing the social and economic needs of its community as a whole. Territorial or geographical demarcation for extension of beneficial uses of an inter-state river basin cannot always be strictly construed. We are inclined to think so as the perception of a basin State inheres in it a degree of flexibility in approach in a unique fact situation to justify a warrantable flexibility and departure from such rigoristic approach. We are disposed to think so, for the city of Bengaluru, as an evident phenomenon, has burgeoned over the years and has grown today into a progressively sophisticated, sprawling, vibrant and a much aspired seat of intellectual excellence particularly in information technology and commercial flourish. It has transformed into a nerve centre of contemporaneous significance and its population is daily on the rise, thus, registering an ever enhancing demand for all civic amenities. Having regard to its exclusive attributes, it is incomparable in many ways not only to other urban areas in the State, but also beyond. The requirements of its dependent population as a whole for drinking and other domestic purposes, therefore, cannot justifiably, in the prevailing circumstances, be truncated to their prejudice only for consideration of its physical location in the context of the river basin. We think so since the city of Bengaluru cannot be segregated having an extricable composition and integrated whole for the purposes of the requirements of its inhabitants, more particularly when the same relates to allocation of water for domestic purposes to meet their daily errands. It will be inconceivable to have an artificial boundary and deny the population the primary need of drinking water. We hold so in the special features of the case keeping in view the global status the city has attained and further appreciating the doctrine of equitable proportionality on the bedrock of pressing human needs. F

391Copy pinpoint391. At this juncture, we need to recount that as per the national water policies, not only drinking water has been placed at the top of the other requirements in the order of priority, but it has also been predicated that adequate drinking water facilitates should be provided to the entire population, both in urban and rural areas and that drinking water should be made a primary consideration. It was declared as well that drinking G water needs of human beings and animals should be the first charge on any available water. Article 14 of the Berlin Rules also mandates that in determining an equitable and reasonable use, the States shall first allocate water to satisfy vital human needs. H

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392Copy pinpoint392. In view of the above, we are constrained to observe that the approach of the Tribunal cannot be approved in the facts and circumstances indicated hereinabove. We are, thus, of the considered opinion that the allocation of water for drinking and domestic purposes for the entire city of Bengaluru has to be accounted for. Noticeably, Karnataka had claimed 14.52 TMC, i.e., 6.52 TMC for existing water schemes for Bengaluru and 8.00 TMC for the ongoing drinking water schemes for the city as in June, 1990. It had demanded 30 TMC as drinking water requirement for the city with the projection of 2025. Having regard to the percentage of decennial growth, as has been adopted by the Tribunal, in 2011, the demand of Karnataka for drinking water requirement for Bengaluru city would be in the vicinity of 24 TMC. Even excluding the computation for urban population of the State to be 8.70 TMC as arrived at by the Tribunal and that too without any basis and accepting the water requirement of rural population to be 8.52 TMC though also without any basis, the total figure representing drinking and domestic water requirement of the urban and rural population would be D 32.5 TMC rounded upto 33 TMC in comparison to 46 TMC as claimed by Karnataka in its statement. Having rejected the assumption that 50% of the drinking water requirement would be met from ground water, this 33 TMC would, in our estimate, be a safe and acceptable figure qua drinking and domestic water requirement of the State of Karnataka for its urban and rural population. By applying the consumptive percentage of 20%, the volume of water to be allocated to Karnataka on this count would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase by 4.75 TMC.

393Copy pinpoint393. Qua the view against transbasin diversion, suffice it to state that not only in the context of Bengaluru city, for the reasons cited hereinabove, a digression from the confines of the concept of in-river basin would be justified, since the National Water Policy of 1987, in categorical terms, enjoined that water should be made available to water short areas by transfer from other areas including transfers from one river basin to another. This very conspicuously emphasizes on an inclusive comprehension and in a deserving case like Bengaluru city, it would not be incompatible with the letter and spirit of the factors that ought to inform the determination of reasonable and equitable share of water in an interstate river as well as of the national policies formulated for planning and development of the precious natural resource involved. H

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X.9 Allocation of water towards environmental protection: A

394Copy pinpoint394. On the aspect of allocation qua environmental protection, the Tribunal, in order to secure the purity of environmental and ecological regime in view of the injudicious use of available resources by human beings compounded by population explosion and distorted lifestyles and having regard to the spectre of river water pollution on account of industrial development and deforestation leading to siltation of reservoirs, etc., assigned 10 TMC to be reserved from the common pool to meet the environmental aspects.

395Copy pinpoint395. We appreciate the endeavour and the initiative of the Tribunal having regard to the sustenance of purity of environment to which every individual is entitled and also simultaneously obliged to contribute to cultivate the feeling of environmental morality. That is the constant need of the present. In view of such an obtaining situation, we are not inclined to interfere in any manner in the allocation of the quantum of 10 TMC towards environmental protection. It stands affirmed. D X.10 Revised water allocation amongst competing States:

396Copy pinpoint396. The river Cauvery originates in Karnataka and eventually after its full flow through the other riparian States of the basin assimilates in the Bay of Bengal. With the evolution of the principle of equitable apportionment which is really to ensure equal justice to the basin States, E the concept of prescriptive right or right to the natural flow of any inter- state river has ceased to exist. Having regard to the historical facts which demonstrate the constraints suffered by Karnataka resulting in its limited access and use of the surface flow of Cauvery in spite of being the upper riparian state, compared to Tamil Nadu, then Madras presidency, as well as severally drought conditions in its 28 districts/taluks, we are inclined to award an additional quantity of water to it in the measure of 14.75 TMC in all, i.e., 10 TMC (on account of availability of ground water in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes including such need for the whole city of Bengaluru). On these considerations, we consider Karnataka to be more deserving amongst the competing States to be entitled thereto. Out of this, 14.75 TMC would be deducted from the quantum allocated by the Tribunal in favour of Tamil Nadu. In other words, the final allocation of the shares in view of this determination would be as hereunder:-

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A Karnataka : 284.75 (270 + 14.75) TMC Tamil Nadu : 404.25 (419 – 14.75) TMC Kerala : 30 TMC UT of Pondicherry : 7 TMC B Environmental Protection : 10 TMC Inevitable escapagaes into sea : 4 TMC Total : 740 TMC

397Copy pinpoint397. As a consequence of the aforesaid allocation, the State of C Karnataka would now be required to make available at the interstate border with Tamil Nadu, i.e., at Billigundulu, 177.25 TMC of water for the basin. Apart from the modifications effected hereinabove, no interference with the determination and findings recorded by the Tribunal, in view of the scrutiny of the available materials on record, is called for.

398Copy pinpoint398. At this stage, we may reproduce how the Tribunal has dealt with monthly deliveries by the State of Karnataka which is as follows:- “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 E the State of Karnataka at the inter-State contact point presently identified as Billigundulu gauge and discharge station located on the common border as under: Month TMC Month TMC June 10 December 8 F July 34 January 3 August 50 February 2.5 September 40 March 2.5 October 22 April 2.5 G 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 H water allocated for environmental purposes.”

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399Copy pinpoint399. The Tribunal directed appointment of a Regulatory Authority A to properly monitor the working of monthly schedule with the help of the concerned States and Central Water Commission and further directed that the upper riparian State shall not take any action so as to affect the scheduled deliveries of water to the lower riparian States. The other directions which had been issued by the Tribunal, we think it appropriate to reproduce, are as under:- “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 State in that water year. D

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 E reservoirs, it shall be at liberty to make use of its unutilized share in any other subsequent month during the same water year provided this arrangement is approved by the implementing Authority. Clause-XVI F 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. G x x x x x x 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 H

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A 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.”

400Copy pinpoint400. In view of the reduction in the quantum of water, now required to be released by Karnataka at the inter-State border with Tamil Nadu, i.e., at Billigundulu, there would be, logically, a proportionate B decrease in the monthly releases as worked out by the Tribunal. However, the same pattern therefor, as modeled by it would be maintained for the reduced releases. Y. Interpretation of Section 6A of the 1956 Act

401Copy pinpoint401. Now we shall deal with the provisions of Section 6A of 1956 C Act. It reads as under:- “Section 6A. Power to make schemes to implement decision of Tribunal. (1) Without prejudice to the provisions of section 6, the Central D Government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal. (2) A scheme framed under sub- section (1) may provide for— (a) the establishment of any authority (whether described as such or as a committee or other body) for the implementation of the decision or directions of the Tribunal; (b) the composition, jurisdiction, powers and functions of the authority, the term of office and other conditions of service of, the procedure to be followed by, and the manner of filling vacancies among, the members of the authority; (c) the holding of a minimum number of meetings of the authority every year, the quorum for such meetings and the procedure thereat; (d) the appointment of any standing, ad hoc or other committees by the authority; (e) the employment of a Secretary and other staff by the authority, the pay and allowances and other conditions of service of such staff;

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(f) the constitution of a fund by the authority, the amounts that may be credited to such fund and the expenses to which the fund may be applied; (g) the form and the manner in which accounts shall be kept by the authority; (h) the submission of an annual report by the authority of its activities; (i) the decisions of the authority which shall be subject to review; (j) the constitution of a committee for making such review and the procedure to be followed by such committee; and C (k) any other matter which may be necessary or proper for the effective implementation of the decision or directions of the Tribunal. (3) In making provision in any scheme framed under sub- section (1) for the establishment of an authority for giving effect to the decision of a Tribunal, the Central Government may, having regard to the nature of the jurisdiction, powers and functions required to be vested in such authority in accordance with such decision and all other relevant circumstances, declare in the said scheme that such authority shall, under the name specified in the said scheme, have capacity to acquire, hold and dispose of property, enter into contracts, sue and be sued and do all such acts as may be necessary for the proper exercise and discharge of its jurisdiction, powers and functions. (4) A scheme may empower the authority to make, with the previous approval of the Central Government, regulations for giving effect to the purposes of the scheme. (5) The Central Government may, by notification in the Official Gazette, add to, amend, or vary, any scheme framed under sub- section (1). G (6) Every scheme framed under this section shall have effect notwithstanding anything contained in any law for the time being in force (other than this Act) or any instrument having effect by Virtue of any law other than this Act.

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A (7) Every scheme and every regulation made under a scheme shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the scheme or the regulation or both Houses agree that the scheme or the regulation should not be made, the scheme or the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that scheme or regulation.”

402Copy pinpoint402. We have already noted the submissions of the learned Solicitor General. His submission, in essentiality, is that the Court should not issue any direction to the Central Government and allow the discretion to be exercised by it as the provision uses the word may. The said argument, as we perceive on a first blush, may look quite attractive or for a while impressive but really cannot stand the substance test. In State of Karnataka (supra) while interpreting the said provision in the context of maintainability, we had held:- E “….The learned Senior Counsel for the respondent has drawn a distinction between the conferment and the exclusion of the power of the Supreme Court of India by the original Constitution and any exclusion by the constitutional amendment. Be that as it may, the said aspect need not be adverted to, as we are only required to interpret Section 6(2) as it exists today on the statute F book. The said provision has been inserted to provide teeth to the decision of the Tribunal after its publication in the Official Gazette by the Central Government and this has been done keeping in view the Sarkaria Commission’s Report on Centre- State Relations (1980). The relevant extract of the Sarkaria G Commission’s Report reads as follows: “17.4.19. The Act was amended in 1980 and Section 6-A was inserted. This section provides for framing a scheme for giving effect to a Tribunal’s award. The scheme, inter alia provides for the establishment of the authority, its term of office and H other conditions of service, etc. But the mere creation of such

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an agency will not be able to ensure implementation of a A Tribunal’s award. Any agency set up under Section 6-A cannot really function without the cooperation of the States concerned. Further, to make a Tribunal’s award binding and effectively enforceable, it should have the same force and sanction behind it as an order or decree of the Supreme Court. We recommend B that the Act should be suitably amended for this purpose. * * * 17.6.05. The Inter-State Water Disputes Act, 1956 should be amended so that a Tribunal’s award has the same force and sanction behind it as an order or decree of the Supreme Court C to make a Tribunal’s award really binding.”

74. The Report of the Commission as the language would suggest, was to make the final decision of the Tribunal binding on both the States and once it is treated as a decree of this Court, then it has the binding effect. It was suggested to make the award effectively enforceable. The language employed in Section 6(2) suggests that the decision of the Tribunal shall have the same force as the order or decree of this Court. There is a distinction between having the same force as an order or decree of this Court and passing of a decree by this Court after due adjudication. Parliament has intentionally used the words from which it can be construed that a legal fiction is meant to serve the purpose for which the fiction has been created and not intended to travel beyond it. The purpose is to have the binding effect of the Tribunal’s award and the effectiveness of enforceability. Thus, it has to be narrowly construed regard being had to the purpose it is meant to serve.”

403Copy pinpoint403. We have referred to the aforesaid passages as the award of the Tribunal has to be treated as decree of the Supreme Court. It is so stated in Section 6(2) to give teeth to the award passed by the Tribunal so that none of the States can raise objection to the same and be guided by the directions of the Tribunal. The purpose of framing the scheme is exclusively for implementation of the award. The authorities cited by Mr. Ranjit Kumar, we are afraid, are of no assistance in the present context. It needs no special emphasis to state that the purpose of Section 6A is to act in the manner in which the award determines the allocation and decides the dispute with regard to allocation or sharing of water. H

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A Keeping that in view, we direct that a scheme shall be framed by the Central Government within a span of six weeks from today so that the authorities under the scheme can see to it that the present decision which has modified the award passed by the Tribunal is smoothly made functional and the rights of the States as determined by us are appositely carried out. When we say so, we also categorically convey that the B need based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the scheme on any ground. Z. The conclusions in seriatim

404Copy pinpoint404. In view of our aforesaid analysis we record our conclusions in seriatim:- (i) After coming into force of the 1947 Act, the doctrine of paramountcy has no room for application as the Government of India became the full sovereign authority. The two D agreements of 1892 and 1924 had neither any political arrangement nor touched any facet of sovereignty of India. Per contra, the agreements cover the areas of larger public interest which do not have any political element and in this backdrop, the agreements are neither inoperative nor completely extinct. E (ii) The issues in this case have no connection, whatsoever, with the concepts of sovereignty and integrity of India and, therefore, the bar under Article 363 of the Constitution of India is not attracted.

F (iii) Even if we accept the contention that the State of Karnataka did not have any bargaining power at the time of entering into the agreements, but, the State of Karnataka acquired the said bargaining power after the 1947 Act, and definitely after coming into force the Constitution of India. Regardless of the same, the State of Karnataka chose not to denounce the said agreements. Therefore, the said agreements cannot be said to be unconscionable. (iv) The newly formed States never belied the agreements of 1892 and 1924 after the Reorganization Act, 1956. Ergo, both the agreements remained in force despite coming into effect of the Reorganization Act, 1956.

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(v) A scrutinized perusal of the 1924 Agreement reveals that A the said Agreement was never intended to be of permanent character. On the contrary, it contemplated a fixed term of 50 years. Therefore, the said agreement expired after 50 years in the year 1974. (vi) The Tribunal in its approach primarily referred to Helsinki B Rules, 1966 which rejected the Harmon doctrine and laid stress on equitable utilization of international rivers. We are of the opinion that the Tribunal was correct in its approach. For determining reasonable and equitable shares, relevant factors have to be considered together, in reaching a conclusion. Keeping in view the various intricacies involved in the case at hand and the duty ordained upon this Court by the Constitution of India, the matter deserved to be adjudicated on the bedrock of equal status of the states and doctrine of equitability. Resultantly, the submission that the complaint of the State of Tamil Nadu did not warrant any adjudication, does not commend any acceptation. (vii) This Court in In Re: Presidential Reference (Cauvery Water Disputes Tribunal) has held that waters of an inter- state river passing through corridors of the riparian states constitute a national asset and no single State can claim exclusive ownership of its water. In this context, the principle of equitable apportionment internationally recognized by the Helsinki Rules, Compione Rules and Berlin Rules which have also been incorporated in the 1987 to 2002 National Water Policies, have been regarded to be the guiding factor for resolving disputes qua apportionment of water of an inter-state river. (viii) After considering all relevant materials brought on record, we are of the view that having regard to imperative of economy of consumption of water, the final determination of irrigated area arrived at by the Tribunal for Tamil Nadu, G cannot be declared incorrect or fallacious. (ix) We do not find any perversity of approach in the Tribunal’s findings with regard to the allocation of water for domestic and industrial purposes in the State of Tamil Nadu. Hence, the same requires no interference. H

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A (x) Drinking water requirement of the overall population of all the States has to be placed on a higher pedestal as we treat it as a hierarchically fundamental principle of equitable distribution (xi) The rejection of the stand of Kerala seeking trans-basin B diversion for hydro-power projects by the Tribunal is justified. The Tribunal has allocated a total of 30 TMC of water towards the overall needs of the State of Kerala and we concur with the said conclusion of the Tribunal. (xii) We concur with the Tribunal’s findings that the Union C Territory of Puducherry is entitled for a “second crop”, having regard to its unique geographical position and its irrigated area being approximately 43,000 acres. (xiii) The allocation of water in favour of Union Territory of Puducherry does not require any further enhancement. D (xiv) The admission of facts along with the confirmatory empirical data suggests that around 20 TMC of groundwater is available beneath the surface in Tamil Nadu which the Tribunal has not taken into account citing it as a conjecture. We, while keeping in mind the risks associated with over E extraction of underground water, deem it fit that 10 TMC of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in the final determination of its share. (xv) The Tribunal had drastically reduced the share of Karnataka F towards Domestic and Industrial purpose for the reason being that only 1/3rd of the city of Bangaluru falls within the river basin and also on the presumption that 50% of the drinking water requirement would be met from ground water supply. The said view taken by the Tribunal ignores the basic principle pertaining to drinking water and is, thus G unsustainable. Keeping in mind the global status that the city has attained, an addition of 4.75 TMC is awarded to Karnataka. (xvi) The perspective of the Tribunal to assign 10 TMC of water for environmental protection does not require to be revisited, H

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OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]

405Copy pinpoint405. It is obligatory to clearly state that in view of the acute scarcity of the water resources and the intensely contested claims of the States, it is expected that the allocations hereby made would be utilized for the purposes earmarked and accepted and no deviancy is shown in carrying out the verdict of this Court.

406Copy pinpoint406. Before parting with the case, we record our unreserved and uninhibited appreciation for Mr. Fali S. Nariman, Mr. S.S. Javali, Mr. A.S. Nambiar, Mr. Rakesh Dwivedi, Mr. Shekhar Naphade, Mr. Shyam Divan, Mr. Jaideep Gupta, learned senior counsel, Mr. Ranjit Kumar, learned Solicitor General of India, Mr. Mohan V. Katarki, Mr. G. Umapathy, Mr. M.R. Naik and Mr. S.C. Sharma learned counsel H

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A for their able assistance without which it would have been extremely difficult on our part to write this judgment.

407Copy pinpoint407. In the ultimate analysis, Civil Appeal No. 2453 of 2007 filed by the State of Karnataka is partly allowed and all others Appeals stand disposed of accordingly. There shall be no order as to costs. B

Kalpana K. Tripathi Appeals disposed of.