IN THE MATTER OF :

A In 1956 the Parliament enacted the River Boards Act, 1956 for the purpose of regulation and development of inter-State rivers and river val.,. leys and also the Inter-State Water Disputes Act, 1956 for adjudication of ·disputes with regard to the use, distribution or control etc. of the said waters. In 1970 Tamil Nadu invoked the provisions of Section 3 of the Inter-State Water Disputes Act, 1956 and requested the Central Govern- B ment for reference of the dispute between the two States, viz. Tamil Nadu and Kamataka to a Tribunal under the Act. The Central Government initiated negotiations between the two States. Simultaneously, Tamil Nadu moved this Court by means of a suit wider Article 131 of the Constitution being Suit No. I of 1971 seeking a direction to the Union Government to constifute a Tribunal and to refer the dispute to it. In the said suit, Tamil c Nadu applied for an interim order to restrain the S!ate of Karnataka from proceeding with and executing the projects mentioned therein. This Court by its Order of 25th January, 1971 dismissed .the application for interim relief. It appears that the negotiations between the two states which were D going on in the meanwhile, resulted in the constitution of a Fact Finding Committee in June 1972 which was set up to ascertain facts, amongst others as to the availability of water resources, the extent of utilisation and the nature of the areas in the respective States within the river basin, and their requirements. In view of the constitution of the Committee, Tamil Nadu withdrew its suit. E. The. Fact Finding Committee submitted its Reports in December, 1972, and August 1973. A Central Study Team headed by Shri CC. Patel, then Addi. Secretary to Government of India, in the Ministry of Irrigation was also set up to examine the question of assessing the savings of water in the existing and. planned projects of the three States in the Cauvery F basin. The recommendation of the Study Team on improvement and mod- ernisation of the irrigation system including the strengthening of the works and the lining of channels, integrated operations of the reservoirs within the Cauvery basin., scientific assessment of water requirement in the com- mand area and for monitoring the releases from the reservoirs for an efficient tie up between the rainfall and command, water requirement and release were announced at the Inter-State Conference of June 1974. r-·

Further negotiations resulted in what is known as "the 1976 Under- ,-- standing". This Understanding envisaged the apportionment of the surplus \- water in the ratio of 30:53: 17 amongest the States of Tamil Nadu, Karnataka and Kerala respectively. In the case of savings, the Study Team proposed the apportionment in the ratio of 87 TMC to Kamataka, 4 TMC to Tamil Nadu and 34 TMC to Kerala.

' CAlNERY WATER DISPUTES TRIBUNAL [SAWANI, J.] 519

It appears that in spite of the information gathered through the Fact A Finding Committee and the Study Team set up by the Union Government, the negotiations were not fruitful. In 1983, Tamil Nadu Ryots Association presented a petition to this Court under Article 3.2 of the Constitution being Writ Petition No. 13347 of 1983. The petition sought issue of a writ of mandamus to the Central Government requiring it to refer the dispute to a Tribunal under the Act. The petition was also accompanied by an B application seeking interim relief. The State of Tamil Nadu supported the Writ Petition. Notices were issued to the respondents including the Union Government and the State of Karanataka. The petition remained pending in this Court for nearly seven years. No application for interim relief was moved during this period.

Although the inter-State meetings continued to be held during this period, nothing worthwhile emerged out of them. Hence, in June 1986, the State of Tamil Nadu lodged a Letter of Request under Section 3 of the Act with the Central Government for the Constitution of a Tribunal and for reference of the water dispute for adjudication to it. In the said letter, Tamil Nadu primarily made a grievance against the construction of works D in the Karnataka area and the anpropriaion of water upstream so as to prejudice the interests down-stream in the State of Tamil Nadu. It also sought the implementation of the agreements of 1892 and 1924 which had expired in 197 4.

At the hearing of the Writ Petition filed by the Tamil Nadu Ryots E Association, the Central Government left the matter to the Court. This Court taking into consideration the course of negotiations and the length of time which had passed, by its judgment dated May 4, 1990 held that the negotiations between the two States had failed and directed the Union Government to constitute a Tribunal under Section 4 of the Act. In pursu- ance of the directions given by this Court, the Union Government by its F notification dated June 2, 1990, constituted the Cauvery Water Disputes Tribunal and by another Notification of the even date referred to it the water dispute emerging from Tamil Nadu's Letter of Request dated July 6, 1986.

2. The Cauvery Water Disputes Tribunal ·(hereinafter referred to as the G "Tribunal") commenced its first sitting on 20th July, 1990. On that day, Tamil Nadu submitted a letter before the Tribunal seeking interim reliefs. The Tribunal directed Tamil Nadu to submit a proper application. There- upon Tamil Nadu and the Union Territory of Pondicherry submitted two separate applications for interim reliefs being CMP Nos. 4 and 5 of 1990. H

520 SUPREME COURT REPORTS {19911 SUPP.2 S.C.R.

A The interim relief claimed by Tamil Nadu was that Kamataka be directed not to impound or utilise water of Cauvery river beyond the extent impounded or utilised by them as on 31-5-1972, as agreed to by the Chief Ministers of the basin States and the Union Minister for Irrigation and Powers. It further sought passing of an order restraining Kamataka . from undertaking any new projects, dams, reservoirs, canals and/or from B proceeding further with the construction of projects, dams, reservoirs, canals etc. in the Cauvery basin.

In its application for interim relief Pondicharry sought a direction from the Tribunal both to Kamataka and Tamil Nadu to release the water already agreed to i.e., 9.355 TMC during the months of September to C March.

The Tribunal considered simultaneously both the applications for interim reliefs as well as the procedure governing the trial of the main dispute. It directed the disputant States to file their pleading by way of statements of cases and also required the States of Kamataka and Kerala D. to submit their replies to the applications for interim reliefs made by tamil Nadu and Pondicherry. By September 1990, all the disputant States submitted their first round of pleadings or statements of cases. By Novem- ber 1990, Karnataka and Kerala also submitted their replies to the applica- tions for interim reliefs. The Tribunal gave time to the States to submit their respective counter statements in reply to the Statements of cases filed earlier in the main dispute.

Jt appears that before the disputant states submitted their counter statements in the main dispute, the Tribunal heard the applications for interim reliefs since Tamil Nadu had, in the meanwhile, filed an applica- tion being CMP No.9 of 1990 as an urgent petition to direct Karnataka as an emergent measure to release at least 2~ TMC of water as the first instalment, pending final orders on their interim application CMP No.4/

90. It appears that this application was filed on the ground that the samba crop could not be sustained without additional supplies at Mettur reservoir in the Tami! Nadu State. Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary objection to the jurisdic- G tion of the Tribunal to entertain the said application and to grant any interim relief. The preliminary objection was that the Tribunal constituted under Act, had a limited jurisdiction. It had no inherent powers as an ordinary Civil Court bas, and there was no provision of law which author- ised or conferred jurisdiction .on the Tribunal to grant any interim relief. The Tribunal heard the parties both on the preliminary objection as well H

CAlNERY WATER DISPUTES TRIBUNAL [SA WANT, J.) 521

as <;n merits, and by its Order of January 5, 1991, held, among other A

- things, as follows :-

" ...... This Act is a complete code in so far as the reference of a dispute is concerned. In the circumstances, in our opinion, the Tribunal is authorised to decide only the 'water dispute' or disputes which have been referred to it. If the Central Govern- B ment is of the opinion that there is any other matter connected. with or relevant to the ·water dispute' which has already been referred to the Tribunal, it is always open to the Central Gov- . ernment to refer also the said matter as a dispute to the Tribu- nal constituted under Section 4 of the Act. Further, no water dispute can be referred by the Central Government unless the : C Central Government is of the opinion that the said dispute · cannot be settled by negotiations. In fact, no water dispute can be adjudicated without its reference to the Tribunal. · The interim reliefs which have been sought for even if the same are connected with or relevant to the water dispute al- D ready referred, cannot be considered because the disputes in respect of the said matters have not been referred by the Cen- tral Government to the Tribunal. Further, neither there is any averment in these petitions that the dispute related to interim relief cannot be settled by negotiations and that the Central Government has already fom1ed the opinion that it shall be . E referred to the tribunal. In case the petitioners of CMP Nos. 4,5 and 9 of 1990 are aggrieved by the conduct of the State of Karnataka and an emergent situation had arisen, as claimed, they could have raised a dispute before the Central Govern- ment and in case the Central Government was of the opinion that the said dispute could not be settled by negotiations, the said dispute could also have been referred by the Central Gov- f ernment to the Tribunal. In case such a dispute bad been re- ferred then it would have been open to the Tribunal to decide the said dispute which decision would then be final 'and bind- ing on-the parties. x x x x x x x x From the letter dated 6.7.1986. which was the request made on behalf of the State of Tamil Nadu to the Central Government for referring the dispute to the Tribunal, it is clear that the dispute which has been referred to this Tribunal in regard to the executive action taken by the Kamataka State in construct- H

522 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A ing Kabini, Hemavathi, Harangi, Swarnavathi and other projects and expanding the ayacuts and the failure of the Karnataka Government to implement the agreements of 1892 and 1924 relating to the use, distribution and the control of Cauvery waters. No interim dispute iti regard to the release of waters by the Karnataka Government from year to year subsequent to the B date of the request made by the State of Tamil Nadu was at all referred to the Tribunal. The Tribunal has been called upon to decide the main water dispute, which, when adjudicated upon, would undoubtedly be binding on the parties. In view of the above, we are of the opinion that the Tribunal cannot entertain the prayer for interim relief unless the dispute relating to the c same is specifically referred to the Tribunal. x . x x x x x x x x

The observations made by Hon 'ble Supreme Court in Union of India v. Paras Lamines (P) Ltd., [1990] 4 SCC 453-supplied were in relation to the Appellate Tribunal constituted under D the Customs Act, 1962. It was held that the Tribunal functions is a court within the limits of its jurisdiction. Its area of juris- diction.is defined but within the bounds of its jurisdiction it has all the powers expressly and impliedly granted. The Su- preme Court while discussing the extent of the power of the E Tribunal in respect of the grant made by a particular Statute held that the Tribunal will have all incidental and ancillary powers for doing of such acts or employing all such means as are reasonably necessary to make the grant effective. The im- port of the decision of the Hon'ble Supreme Court is that the Tribunal will have incidental and ancillary powers while exer- F cising the powers expressly conferred. These incidental and ancillary powers must relate to the actual dispute referred and not to any other matter including granting of interim reliefs which are not at all subject matter of reference. In our opinion what the Supreme Court intended to hold was that the Tribunal has incidental and ancillary powers to pass orders in respect of a reference for adjudication of which it has been constituted. It·has not, however, further laid (sic.) that it has also incidental and ancillary powers to grant relief in re- spect of a dispute which has not at all been referred. In the instant case, the water dispute which has been referred to us is that which emerges from the letter of the State of

CAUVERY WATER DISPUfES TRIDUNAL (SAWANT, J.) 523

Tamil Nadu dated 6th July, 1986. The Tribunal will have the power to pass such consequential orders as are required to be , made while deciding the said dispute and will also have inci- dental and ancillary powers which will make the decision of the reference effective but these powers are to be exercised' only to enable it to decide the reference effectively but not to decide disputes not referred including a dispute in regard to grant of interim relief/interim reliefs.

x x x x x x x x x

The Second submission raised by the learned counsel for Tamil Nadu namely to the effect that the Tribunal alone could exer- C cise jurisdiction in respect of a water dispute by virtue .of Article 262 of the Constitution of India and in case Tribunal holds otherwise the State of Tamil Nadu will be left with no remedy available to it, it may be stated that since we have taken the view that in case a water dispute really arises and such water dispute could not be resolved by negotiations then it will be open to the Central Government to refer the said dispute to the Tribunal for adjudication, the question of not having a remedy for a wrong does not arise before the Tribu- nal. The Central Government if it finds that the dispute is connected with or related to the water dispute already referred to the Tribunal, it is open to it to refer the said dispute also to the Tribunal in regard to the granting of an interim relief." ·

In the view that it took, as above; the Tribunal held that it could not entertain the said applications for grant of interim reliefs as they were not maintainable in law, and dismissed the same. F

3. Being aggrieved, the State of Tamil Nadu approached this Hon'ble Court by means of special leave petitions under Article 136 of the Consti- tution against the orders passed both in the original application for interim relief being CMP No.4 of 1990 as well as in the application for urgent . interim relief being CMP No.9 of 1990. So did the Union Territory of Pondicherry against the order passed by the Tribunal in its application for G interim relief being CMP No.5 of 1990. These special leave petitions which were later on converted into Civil Appeals Nos.303-04 of 1991 and Civil Appeal No. 2036 of 1991 respectively, were heard together and disposed of by this Court by its judgment dated April 26, 1991. While allowing the appeals this Court held as follows: H

524 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A "Thus, we hold that this Court is the ultimate interpreter of the provisions of the Inter-State Water Disputes Act, 1956 and has an authority to decide the limits, powers and the. jurisdiction of the Tribunal constituted under the Act. This Court has not only the power but obligation to decide as to whether the Tribunal has any jurisdiction or not under the Act, to entertain any B interim application till it finally decides the dispute referred to it. x x x x x x x x x A perusal of the order of reference dated 2.6.90 as already extracted above clearly goes to show that the Central Govern- C ment had referred the water disputes regarding the inter-State river Cauvery and the river valley thereof, emerging from let- ter dated 6th July, 1986 from the Government of Tamilnadu. Thus all the disputes emerging from letter dated 6th July, 1986 had been referred to the Tribunal. The Tribunal committed a serious error in omitting to read the following-important para- D graph contained in the aforesaid letter dated 6.7.86." This Court then quoted the said paragraph from· the said letter of6.7.1986 which reads as follows:

"REQUEST FOR EXPEDITIOUS ACTION IN REFERRING THE DISPUTE TO TRIBUNAL: E From 1974-75 onwards, the Government of Karnataka has been impounding all the flows in their reservoirs. Only after their reservoirs are filled up, the surplus flows are let down. The injury inflicted on this State in the past decade due to the unilateral action of Karnataka and the suffering we had in F running around for :i few TMC of water every time and crops reached the withering stage has been briefly stated in note (Enclosure-XXVIII). It is patent that the Government ofKarnataka have badly violated the inter-State agreements and caused ir- reparable harm to the age old irrigation in this State. Year after year, the realisation at Mettur is falling fast and thou- G sands of acres in our ayacut in the basin are forced to remain fallow. The bulk of the existing ayacut in Tamil Nadu concen- trated mainly in Thanjavur and Thiruchirappalli districts is already gravely affected in that the cultivation operations are getting long delayed, traditional double crop lands are getting reduced to single crop lands and crops even in the single crop H lands are withering and falling for wmtt of adequate wettings

CAUVERY WATER DISPUTES TRIBUNAL (SAWANT, J.] 525

at crucial times. We are convinced that the in ordinate delay in ' .< • ... solving the dispute is taken advantage of by the Government \ of Karnataka in extending their canal systems and their ayacut _,Jo ' in the new projects and every day of delay in adding to the '

,.,., injury caused to our existing irrigation." The Court then proceeded to observe as follows: B "The above passage clearly. goes to show that the State of Tamilnadu was claiming for an immediate relief as year after year. the realisation of Mettur was falling fast and thousands of acres in their ayacut in the basin were forc£·d to remain .,;._ fallow. It was specifically mentioned that the inordinate delay .in solving the dispute is taken advantage of by the Government c of I<.arrtataka in extending their canal systems and their ayacut in the new projects and every day of delay is adding to the injury caused to their existing irrigation. The Tribunal was thus clearly wrong in holding that the Central Government had not made any reference for granting.any interim relief. We are not concerned, whether the appellants are entitled or not, for any interim relief on merits, but we are clearly of the view that the reliefs prayed by_the appellants in their C.M.P. Nos. 4, 5 "' and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government under Section 5 of the Act. The Tribunal has not held that it had not incidental and ancillary powers for granting an interim relief, but it has re- fused to entertain the C.M.P. Nos.4,5 and 9 on the grow1d that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circum- stances we think it is not necessary for us to decide in this -t case, the larger question-whether the Tribunal constituted un- F der the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become enti- tied to succeed on the basis of the finding recorded by us in their favour that the reliefs prayed by them in their C.M.P. Nos. 4,5 and 9 of 1990 are covered in the reference made by the Central Government. It may also be noted that at the fag .. ~ end of the arguments it was submitted before us on behalf of G I

the State of Karnaiaka that they were agreeable to proceed with the C.M.P.s on merits before the Tribunal on the terms that all party States agreed that all questions arising out of or connected with or relevant to the water dispute (set out in the respective pleadings of the respective parties), including all H

526 SUPREME COURT REPORTS [1991) SUPP. 2 S . C.R.

A applications for interim directions/reliefs by party States be determined by the Tribunal on merits. However, the above terms were not agreeable to the State of Tamilnadu as such we have decided the appeals on merits." (_ In view of its findings as above, this court by the said order directed the Tribunal to decide CMPs Nos. 4, 5 and 9 of 1990 on merits. In B pursuance of these directions, the Tribunal heard the said applications of Tamil Nadu and Pondicherry. It appears that before the Tribunal, objec~ tions were again raised o:ii behalf of the State of Kamataka with regard to the maintainability of the applications filed by Tamil Nadu and Pondicherry for interim reliefs. The Tribunal did not countenance the said objections holding that the direction given by this Court was binding on it. The c Tribunal then proceeded to decide the applications on merits and by its order dated June 25, 1991 held as follows: "When we are deliberating whether any emergent order ought to be passed, our prime consideration ought to be to preserve, as far as possible, pending final adjudication the rights of the o- parties and also to ensure that by unilateral action of one party other party is not prejudiced from getting appropriate relief at the time of tte passing of the final orders. We ought to also . endeavour to prevent the commission of any act by the parties which might impede the Tribunal from making final orders in conformity with the principles of fair and equitable distribu- E tion of the waters of this inter-State river. x x x x x x x x x ...... At this stage it would be neither feasible nor reasonable to determine how to satisfy the needs of the each State to the greatest extent possible with a minimum of detriment to oth- F ers. We do not also propose at this stage to enter into the question whether the present use of water of the river Cauvery either by the State of Tamil Nandu or the State ofKarnataka fa the most beneficial use to which the water could be put to. . X X X X X X X Xe X ...... We do not propose to examine at this stage the legality or G justifiability of erection of these reservoirs, dams, canals, etc. The said matters may be gone into if found necessary at the appropriate stage. In this case it would be in accordance with justice to fix the annual releases into Mettur Dam by making average of the same for a number of normal years in the im- mediate past. H x x x x x x x x x

CAWERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 527

...... We have already mentioned that at the present stage we A

.. would be guided by consideration of balance of convenience and maintenance of the existing utilisation so that rights of the parties may be preserved till the final adjudication .... ". 1

The Tribunal then directed the State of Kamataka to release water, from its reservoirs in Kamataka so as to ensure that 205 TMC water is available in Tamil Nadu's Mettur reservoir in a year from June to May. B The Tribunal further directed Kamataka to regulate the release of water; every year in the manner stated in the order. The monthly quota of the water was to be released in four equal instalments every week, and if there was not sufficient water available in any week the deficit was di-: rected to be made good in the subsequent week. The Tribunal also di- rected Tamil Nadu to deliver to Pondicherry 6 TMC water for its Karaikal C 1

region in a regulated manner. In addition, the Tribunal directed Karnataka not to increase its area under irrigation by the waters of Cauvery, beyond the existing 11.2 lakh acres. The Tribunal then observed that its said order would remain operative till the final adjudication of the dispute referred to it. c Thereafter. on July 25, 1991 the Governor of Kamataka issued an Ordinance named "the Kamata.ka ·'.:.'auvery Basin Irrigation Protection Or~ dinance, 1991" which reads as follows: '

"An Ordinance to provide in the interest of the general public for the protection and preservation of irrigation in irrigable areas of the Cauvery basin in Kamataka depender.t on the waters of the Cauvery river and its tributaries. Whereas the karnataka Legislative Councii is not in Session and the Governor of Karnataka is satisfied that circumstanc~s exists which render it necess~JY for him to take immediate action, for the protection and preservation of irrigation in the irrigable areas of the Cauvery basin in Kamataka dependent on the water of Cauvery river and its tributaries. Now, therefore, in exercise of the power conferred under clause (l) of Article 213 of Constitution oflndia, I, Khurshed Alam G Khan. Governor of Kamataka, am pleased to promulgate the following Ordinance, namely:- '

1Copy pinpoint1. Short title, extent and commencement:- ( I) This Ordinance may be called the Karnataka Cauvery Ba- sin Irrigation Protection Ordinance, 1991. H

528 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A (2) It extends to the whole of the State of Karnataka. (3) It shall come into force at once.

2Copy pinpoint2. Definition: Unless the context otherwise requires:- (a) "Cauvery basin" means the basin area of the Cauvery -.:.. \- ;:: ,__ t- river and its tributaries_ lying within the territory of the B • .,.·- State of Kamataka. }

{b) "Irrigable area" means the are_as specified in the Sched- ule. (c) "Schedule" means the Schedule annexed to this Ordinance. ,.L c (d) "Water year" means the year commencing with the lst of June of a Calendar year and ending with the 31st of May of the next Calendar year.

3Copy pinpoint3. Protection of Irrigation in irrigable area: •• (I) It shall be the duty of the State Government to protect, ,- D preserve arid maintain .irrigation from the waters of the '..- Cauvery river and its tributaries in the irrigable area w1- der the various projects specified in the Schedule. ..... (2) For the purpose of giving effect to sub-section (I) the State Government may abstract or cause to be abstracted, during every water year, such quantity of water as it may E deem requisite, from the flows of the Cauvery river and its tributaries, in such manner and during such intervals as the State Government or any Officer, not below the rank of an Engineer-in-Chief designated by it, may deem fit and proper. 'lo--

4Copy pinpoint4. Overriding effect of the Ordinance:- The provisions of this Ordinance, (and of any Rules and Or- ders made thereunder), shall have effect notwithstanding any- thing contained in any order, report or decision of any Court or Tribunal (whetl1er made before or after the commencement of G this Ordinance), save and except a final decision under the provisions of sub-section (2) of section 5 read with section 6 of the Inter-State Water Disputes Act, 1956.

5Copy pinpoint5. Power to remove difficulties:- If any difficulty arises in giving effect to the provisions of this H Ordinance, the State Government may,. by order, as occasion

CAUVERY WATER DISPUfES TRIBUNAL [SAWANf, J.] 529

requires, do anything (not inconsistent with the provisions of A this Ordinance) which appears to be necessary for purpose of removing the difficulty. ' 6. Power to make rules:- (1) The State Government may, by Notification in the Offi- cial Gazette make rules to carry out the purpose of this B Ordinance. (2) Every rule made under this Ordinance shall be laid as may be after it is made, before each House of the State Legislature while it is in Session for a total period of i

thirty days which may be comprised in one Session or in two or more Sessions and if before the expiry of the said period, either House of the State Legislature makes any modification in any rule or order directs that any rule or order shall not have effect, and if the modification or direction is agreed to by the other House, such rule or order shall thereafter have effect only in such modified form or be no effect, as the case may be." { -'• The Schedule mentioned in the Notification refers to the irrigable areas in Cauvery basin of karnataka under various projects including mi- nor irrigation works.

Hot on the heels of this Ordinance, the State of Kamataka instituted E a suit under Article 131 against the State of Tamil Nadu and others for a declaration tht the Tribunal's order granting interim relief was without jurisdiction and, therefore, null and void etc.

Another development which may be noticed is that the Ordinance has since been replaced by Act No.27 of 1991. The provisions of the Act F are a verbatim reproduction of the provisions of the Ordinance except that in Section 4 of the Act the words "any court or" are omitted and Section 7 is added repealing the Ordinance. The omission of the above words ex- cludes this court's order dated April 26, 1991 from the overriding effect of the said provision. Reference to the OrdiJ¥lllCe hereafter will include ref- erence to the Act also unless the conte~t otherwise requires. G

4. It is in the context of these developments that the President has made the Reference which is set out in the beginning.

5. Before us are arraigned the State of Trunil Nadu and the Union Terri- tory of Pondicherry on the one hand the States of Karnataka and Kerala on · H

530 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A the other with the Union of Indian talcing no side on the issues arising out of the Reference. There are also interveners on both sides. The conten- tions of the pa.'iies are summarised hereafter. The contentions also include a plea on both sides not to answer either all or one or the other question raised in the Reference for reasons differently advanced. These pleas will also be dealt with at their proper places. Before we deal with the conten- B tions, it is necessary to note certain features of the Reference which are also alluded to in the contentions of the parties. The Reference is made under Article 143 (1) of the Constitution of India seeking opinion of this Court under its advisory jurisdiction. As has been stated in the preamble of the Reference and is also not disputed before us, the first two questions are obviously the outcome of the dispute relating to the sharing of waters between Tamil Nadu and Pondicherry on the one hand and Kamataka and Kerala on the other and the developments that took place in the said dispute till the date of Reference. As has been contended on behalf of Tamil Nadu and Pondicherry, even the third question has a relation to the dispute and the said events, and is not general in nature though it is couched in general terms. According to them, the question has been posed with an oblique motive of getting over the judgement of this Court dated April 26, 1991 and the consequent order of the Tribunal dated June 25,

1991. Hence the said question should not be answered. Their other con- tention is that if the question is general in nature, it requires no answer at all.

6Copy pinpoint6. The contentions of the parties on the questions referred may now be summarised.

With reference to Question l the State of 1(;1111ataka contends, in the light of the presumption of constitutional validity which ordinarily at- taches to a legislation, that the onus lies heavily on the party challenging F the same to show that the impugned Ordinance (now Act) is ultra vires the Constitution. The impugned legislation clearly falls within the compe- tence of the State legislature under Entry 17 as well as Entries 14 and 18 of List II i1i the Seventh Shedule of the Constitution. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power fall within Entry 17 of List II (hereinafter re- G ferred to as 'Entry 17') and the State Legislature has every right t6 legis- late on the subject and this legislative power is subject only to Entry-56 of List I (hereinafter referred to as 'Entry 56'). That Entry deals with regula- tion and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. H This Entry, it is contended, does not denude the States of the power to

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 531

legislate under Entry 17, since it merely empowers the Union, if Parlia-. A ment has by law declared it to be in public interest, that the 'regulation and development of inter-State rivers and river valleys . should, to the extent the declaration permits, be taken under the ·control of tte Union. 1 On a plain reading of the said Entry it is evident that barring regulation and development' of an inter-State river, subject to the declaration, the Central Government is not conferred with the power to legislate on water, JJ etc., which is _within the exclusive domain of the State legislatures. The River Boards Act, 1956 beir.g the only legislation made by Parliament under Entry 56, and the scope of the declaration in section 2 thereof being limited 'to the extent hereinafter provided', that is to say provided by that statute, and no River Board having been constituted thus far in respect of and inter-State river under the said law, the power to legislate under Entry c 17 is not whittled down or restricted. Thus, contends the State of Karnataka, the River Boards Act merely authorises the Union to set up a River Board with a view to take under its control the regulation and development of inter-State rivers without in any manner restricting or controlling the leg- islative power under Entry 17. But in the absence of the constitution of a River Board for Cauvery, it is contended that the State of Karnataka D retains full legislative power to make laws as if Entry 17 has remained •' untouched. Further, the executive power of the Union under Article 73 ca1U1ot extend to any State with respect to matters on which the State alone can legislate in view of the field having been covered by Article 162 of the Constitution. Since the Act enacted under Article 262 of the Constitution does not attract any Entry in list I, it is a law essentially meant to provide for the adjudication of a dispute with respect to the use, distribution or control of waters of, or in, any inter-State river or river valley and does not, therefore, step on the toe of Entry 17. What the Ordinance (now Act) seeks to do is to impose by section 3 a duty on the State Government to protect, preserve and maintain irrigation from Cauvery waters in the irrigable areas falling within the various projects specified in the Schedule to the said legislation. The State of Karnataka, therefore, contends that the impugned legislation is clearly within the scope of the State's power to legislate and is, therefore, intra-vires the· Constitution. A forteriori, the power to legislate conferred on the State legislature by Entries 14, 17 and 18 of List II, cannot be inhibited by an interim order of the Tribunal since the scheme of the Act envisages only one final report G "' or decision of the Tribunal under section 5 (2) which would have to be gazetted under section 6 thereof. Until a final adjudication is made by the Tribunal determining the shares of the respective States in the waters of an inter-State river, the States would be free to make optimum use of water within the State and the Tribunal cannot interfere with such use under the guise of an interim order. Consequently it was open to the H

532 SUPREME COURT REPORTS [1991] SUPP. 2 S.C;R.

A Kamataka Legislature to make a law ignoring or overriding the interim order of the Tribunal. · ·

With regard to Question 2 (i) of the Reference, the State ofKarnataka: contends that the scheme of the Act does not envisage the making of an interim order by the Tribunal. Section 5 of the Act provides that after a B · Tribunal has been constituted under section 4, the Central Government <>hall refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication. On such Reference the Tribunal must investigate the matters referred to it and forward a report setting out the facts found by it and giving its decision on the matters referred to it. If upon consideration of the decision; the Cen- c tral Government or any State Government is of opinion that anything contained therein requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, such Government may within three months .from the decision again refer the matter for further consideration, and on such reference, the Tribunal may forward a further report giving such explanation and guidance as it deems fit and thereupon D the decision of the Tribunal shall be deemed to be modified accordingly. Section 6 then enjoins upon the Central Government to publish the deci- sion of the Tribunal in the Official Gazette and on such publication 'the decision shall be final and binding on the parties to the dispute and shall be given effect to by them'. It is contended by the State of Karnataka that the scheme of the aforestated provisions clearly envisages that once a E water dispute is referred to the Tribunal' the Tribunal must 'investigate' the matters referred to it and forward a report to the Central Government 'setting out the facts found by it' and 'giving its decision' on the matters referred to it. It is this decision which the Central Government must publish in the Official Gazette to make it final and binding on the parties ~· to the dispute. The State of Karnataka, therefore, contends that the scheme of the Act contemplates only one final report made after full investigation in which findings of fact would be set out along with the Tribunal's decision on the matters referred to it for adjudication, and does not con- template an interim report based on half-baked information. Finality is attached to that report which records findings of facts based on investiga- tion and not an ad hoc, tentative and prima facie view based on no investigation or cursory investigation. The State of Karnataka, therefore, contends that since the interim order was not preceded by an investigation of the type contemplated by the Act, the said order of 25th June, 1991 r-' \ could not be described as 'a report' or 'a decision' under section 5(2) of the Act and hence there could be no question of publishing it in the \ H gazette. It is, therefore, conte1ided that no finality can attach to such an order which is neither a report nor a decision and even if published in the \' \

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 533

gazette it cannot bind the parties to the dispute and can have no efficacy in law/. On Question 2(ii), it is, therefore, contended that since there was no in4.restigation, no findings on facts, no report and no decision, the Central Government is under no obligation to publish the interim order of the Tribunal.

With reference to Question 3, the State of Karnataka reiterates that the scheme of the Act clearly envisages a final report to be given by the Tribunal on conclusion of the investigation and after the Tribunal has reached firm conclusions on disputed questions of fact raised before it by the contesting parties. It is only thereafter that it can in its report record its decision which on being gazetted becomes· final and bindiLg on the parties. The words 'any matter appearing to be connected with or relevant to water dispute' employed in section 5(1) of the Act, do not contemplate reference of an interim relief matter nor can the same empower the Tribu- nal to make an interim order pendente lite. The Act has deliberately not conferred any power on the Tribunal to make an interim order for the simple reason that a water dispute has many ramifications, social, eco- nomic and political, and involves questions of equitable distribution of water which cannot be done without a full-fledged investigation of the relevant data-material includin~ statistical information. In the very nature of things, therefore, it is impossible to think that the Act envisaged the making of an interim order. While conceding that certain kinds of inter- locutory orders which are processual in nature can be made by the Tribu- nal to effectuate the purpose of the Act, namely, adjudication of a water dispute, no interim relief or order can be granted which will affect the existing rights of the parties because that would in effect deprive the concerned State of the power to legislate in respect of water under Entry 17 and/or make executive orders in that behalf under Article 162 of the Constitution. The jurisdiction conferred on the Tribunal under the Act to adjudicate upon a water dispute does not extend to grant of interim relief. F The State of Karnataka, therefore, contends that having regard to the purpose, scope and intendment of the Act, the Tribunal constituted there- under has no power or authority to grant any interim relief which would have the effect of adversely interfering with its existing rights, although while finally adjudicating the dispute it can override any executive. or legislative action taken by the State. Since .the allocation of flow waters G between the concerned States is generally based on the principle of 'equi- I

table apportionment', it is incumbent on the Tribunal to investigate the facts and all relevant materials before deciding on the shares of the con- cerned States which is not possible at the interim stage and hence the legislature has advisedly not conferred any power on the Tribunal to make an interim order affecting the existing rights of the concerned parties. The H

534 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A State of Kamataka, therefore, urges that this question deserves to be an- swered in the negative.

The State of Ker.ala has in its written submissions of l 0th August, 1991 by and large supported the stand taken by the State of Kamataka. It contends that the provisions of the Act enacted under Article 262 of the B Constitution constitute a complete Code and the Tribunal has been con- ferred the powers of a civil court under the Civil Procedure Code only in respect of matters enumerated in section 9( l) of the Act. The power to grant interim relief is conspicuously absent and in the absence of an express provision in this behalf, the Tribunal, which is a creation of the Act, can have no jurisdiction to grant interim relief. It would be advanta- C geous to state the contention of the State of Kerala in its own words:

" ..... Tribunal has no jurisdiction or power to make an interim award or grant any interim relief to a party unless the dispute relating to the interim relief has itself been referred to the TribWlal." (Paragraph 1.5) D This is further amplified in paragraph 3.3 of its submissions as un- der.:

"Such a relief can be granted to a party if that forms the subject matter of a separate reference to the Tribunal by the Central Government. In such a situation, the order of the Tri- E bunal, would constitute a separate report and decision within section 5(2) of the Act which would then be published by the Central Government and would, therefore, be binding on the parties." It is, however, the stand of Kerala that no specific reference for grant of interim relief was made to the Tribunal and hence the interim order of 25th June, 1991 does not constitute a report and a decision within the meaning of section 5(2) and hence the Central Government is not ex- pected to gazette the same. Unless the same is gazetted finality cannot attach to it nor can it bind the parties. Therefore, contends the State of Kerala, the Tribunal ltad no jurisdiction to grant interim relief which it has granted by its aforesaid interim order. Hence the said order has no effi- cacy in law nnd can be ignored.

On the question of issuance of the Ordinance, the State of Kerala --- 1·

\ contends, that such a legislation falls within the scope and ambit of Entry \ H 17 and is. therefore, perfectly legal and constitutional and is not in any manner inconsistent with Entry 56 nor does it trench upon any part of the \ \

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 535

declaration in section 2 of the River Boards Act or any of the provisions A thereof. Thus according to Kerala, the legislative competence to pass such a statute vests in the State legislature under Entry 17 and, therefore, the, Govemor of Karnataka was competent to issue the Ordinance under Arti- cle ii 3 of the Constitution. '

However, in the course of his submissions before this Court, Mr. B Shanti Bhushan, counsel for the State of Kerala departed from the stand · taken in the written submission and contended that the scheme of the. Act , does not confer any power whatsoever on the Tribu1_1al to make an interim order and, therefore, the only remedy available to a State which appre- , bends any action by the upper riparian State likely to adversely affect its right, i.e. the rights of its people, is to move the Supreme Court under C Article 131 of the Constitution notwithstanding the provisions of Article 262 and section 11 of the Act. According to the learned counsel since the scope of Article 262 read with the scheme of the Act does not contemplate 1

a Reference regarding the grant of interim relief to the Tribunal consti- tuted under the Act, the field is left open for a suit to be instituted under Article 131 of the Constitution. Mr. Shanti Bhushan went so far as to D contend that even if the Act had invested power in the Central Govern- ment such a provision would have been hit by Article 262 itself as the scope of that Article is limited while Article 131 is wider in scope. Thus, according to counsel, this Court's majority view expressed by Kasliwal, J. in Civil Appeals Nos. 303, 304 & 2036 of 1991 which held that there was a reference to the Tribunal for grant of interim relief is not consistent with ·E the true meaning and sope of Article 262 and the provisions of the Act and this Court should not feel bound by it if it agrees with counsel's interpretation for to do so would be to render wrong advice to the Presi- dent. It is thus manifest that counsel's submissions are a clear departure from the written submission filed by the State on I 0th August, 1991. F The State of Tamil Nadu contends that ordinarily a dispute between (i) the Government of India and one or more States or (ii) between the Government of India and any State or States on one side and one or more other States on the other or (iii) between two or more States would be governed by Article 131 of the Constitution and, subject to the provisions of the Constitution, the Supreme Court alone would have jurisdiction if G and insofar as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. Article 131 begins with the words 'subject to the provisions of the Constitution' and hence it must be read subject to Article 262 of the Constitution. Article 262 enables Parliament to provide by law for the adjudication of any dispute or complaint with respect to the use, distribution or control of the H

536 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A waters of, or in, any inter-State river or river valley. That law may, notwithstanding anything contained in the Constitution, provide that nei- ther the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to above. In exer- cise of power conferred by this provision., t.he Parliament enacted the Act and by section I I provided as under : B "Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be re- ferred to a Tribunal under this Act."

C While Article 262(2) begins with the words 'notwithstanding any- thing in this constitution', section 11 begins with the words 'Notwith- standing anything contained in· any other law' which conveys that all courts including the Supreme Court are debarred from exercising jurisdic- tion in respect of any water dispute which may. be referred to the tribunal for adjudication. D It is, therefore, contended that the Tribunal required to perform a purely judicial function which but for Article 262 and section 11 of the Act would have been performed by a Court of law. An independent high level machinery consisting of a Chairman and two other members nomi- nated by the Chief Justice of India from amongst sitting Judges of the E Supreme Court or of a High Court is to constitute the Tribunal for adjudi- cating the water dispute. As the Tribunal is invested with the State's judicial function it has all the trappings of a civil court and it is inconceiv- able that such a high powered judicial body would not be empowered to make interim orders or grant interim relief, particularly when it is empow- ered even to override an existing legislation or interfere with a future F legislation. Since the Tribunal is a substitute for the Supreme Court (but for Article 262 and section I I of the Act, Article 131 would have applied) it is reasonable to infer that all the powers which the Supreme Court under Article 131 can be exercised by the Tribunal while adjudicating a water dispute and, therefore, the ·power to grant interim relief inheres in such a Tribunal without the need for an express provision in that behalf. A Tribu- G nal on which is conferred a jurisdiction to adjudicate as to the prejudicial ,... effect of a futurelegislation or executive action must of necessity possess I

the power to make interim orders interdicting a prejudicial act. The State of Tamil Nadu, therefore, contends that a high powered Tribunal like the present one which is a substitute for this Court must be presumed to have jurisdiction to grant an appropriate interim relief. Such an ancillary and H incidental power always inheres in a Tribunal which discharges judicial

C.AlNERY W.ATER DISPUfES TRIBUNAL [SAWANT, J.] 537

functions. It is, therefore, contended that Question 3 must be answered in . A the affinnative.

Without prejudice to the generality of the above submission, the State of Tamil Nadu contends that insofar as the question of jurisdiction to grant interim relief concerning the Cauvery water disp\;<e is concernced, the decision of this Court dated 26th April, 1991 in Civil Appeals Nos. B 1

303, 304 and 2036 of 1991 operates as res judicata and is binding on the contesting parties regardless of the view that this Court may take on the generality of the question referred for decision. It must be recalled that this Court in its judgment of 26th April, 1991 came to the conchJ.sion that -, -" ttie reference made to the Tribunal included the question of. grant of interim relief and this conclusion based on the interpretation of the terms C of the reference dated 2nd June, 1990 read with letter dated 6th July, 1991 was cleady binding on the concerned parties and the Tribunal's interim order on the merits of the matter made in p~suance of this Court's direc- ' tive to decide on merits is equally binding and cannot be disturbed in proceedings arising out of a Reference under Article 143 (1) of the Con- stitution. If the question of grant of interim relief fonns part of the Refer- D ence, the Tribunal is duty bound to decide the same and such decision would constitute a report under Section 5(2) of the Act which the Central Government would be duty bound to publish as required by section 6 of the Act. It is further contended that in the view of the State of Tamil Nadu a Tribunal constituted under ·the Act has inherent jurisdiction to grant 1

interim relief as pointed out earlier, whether or not the question regarding E grant of interim re!ief is specifically referred, and its decision thereon would constitute a report under section 5(2) of the Act liable to be pub- lished in the official Gazette as required by section 6 thereof. If there is any ambiguity in the interim order the same can be taken care of under section 5(3) of the Act. The State of Tamil Nadu, therefore, contends that both parts of Question 2 deserve to ~ answered in the affinnative. F

So far as Question 1 of the Reference is concerned, the State of Tamil Nadu contends that the Kamataka Ordinance (now Act) is ultra vires the Constitution for diverse reasons. It is contended that the real object and purpose of the legislation is to unilaterally 11ullify ·the Tribu- -; nal's interim order after having failed in the first round of litigation. It is G ' contended that the State of Karnataka had and has no right to unilaterally decide the quantum of water it will appropriate or the extent to which it will diminish the flow of Cauvery waters to the State of Tamil Nadu and thereby deny to the people of Tamil Nadu their rightful share in the Cauvery waters. The right to just and reasonable use of water being a matter for adjudication by the Tribunal, no single State can by the use of H

538 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A its legislative power arrogate upto itself the judicial function of equitable apportionment and decide for itself the quantum of water it will use from the inter-State river regardless of the prejudice it would cause to the other State by its unilateral action. Such a power cannot be read in entry 17 as it will l?e destructive of the principle that such water disputes are justiciable and must be left for adjudication by an independent and impartial special B forum to which it is referred, namely, the Tribunal constituted for resolv- ing the dispute, and not by unilateral executive or legislative interference. It is, therefore, contended that the object of the legislation not being bona fide, the same cannot be allowed to stand as it has the effect of overruling a judicial order passed by a Tribunal specially appointed to adjudicate on the water dispute between the parties thereto. c On the question of legislative competence, the State of Tamil Nadu contends that the statute is ultra vires the Constitution for the following reasons:

D (a) the Ordinance (now Act) is ultra vires the Constitution as it seeks to override or neutralise the law enacted by Par- Iiame.nt in exercise of power conferred by Article 262 (and not Article 246 read with the relevant entry in. the Seventh Sechedule) of the Constitution. A State Legisla- ture can have no power to legislate with regard to a water .. .',__ \ .

dispute as it would be incongruous to confer or infer such power in a State legislature to destroy what a judicial body has done under a Central law;

(b) the impugned legislation purporting to be under Entry 17 of List II has extra-territorial operation, in that, it directly impinges on the rights of the people of Tamil Nadu to the use of Cauve!"y waters.

(c) the impugned legislation is contrary to the Rule of Law and a power not comprehended even by Article 262 can- not be read into the legislative power of the State for it would pervert the basic concept of justice, and G t (d) the impugned legislation is viofative of the fundamental rights of the inhabitants of Tamil Nadu guranteed by Arti- cles 14 and 21 of the Constitution, in that, the action of Karnataka is wholly arbitrary and in total disregard of the ,/ right to life of those inhabitants in Tamil Nadu who sur- H vive on Cauvery waters.

CAUVERY WATER DISPUTES TRIBl.J?l!AL [SAWANT, J.] 539

The State of Tamil Na.du strongly contends that in a civilised society A g~verned by the Rule of Law, a party to a 'lis'-water dispute-cannot be ~ho\Ved to arrogate to itself the right to decide on the dispute or to nullify an interim order ma.de by a Tribunal in obedience to the decision of the apex court by abusing the legislative power under Entry 17 under whicl\ the impugned legislation purports to be. B Without raising any preliminary objection and without prejudice to its afore-mentioned contentions, the State of Tamil Nadu contends that the jurisdictioti of this Court under Article 143 of the Constitution is discre- tionary and this Court should refrain from answering a Reference which is in general terms without backgro'lind facts and is likely to entail a roving inquiry which may ultimately prove academic only. Secondly, the State M C .Karnataka has immediately after the interim order instituted a suit, beirig Original Suit No. I of 1991, in this Court in which it has prayed for a declaration that the interim order of tht: Tribunal dated 25th June, 1991 is without jurisdiction, null and void, and for setting aside the said order. It is contended that while on the one hand the decision of this Court, per Kasliwal, J., has become final and is res judicate between the parties D thereto, on the other hand the State of .Kamataka is raking up the sa~e question of jurisdiction before this court in a substantive suit with a view to overreaching this Court's earlier order. The Presidential Reference in terms refers to disputes and differences having arisen out of the Tribunal's interim order which, it is said, has given rise to a public controversy likely to result in undesirable consequences. Such matters, contends the State of E Tamil Na.du, can be effectively countered by the concerned Government and do not call for a Presidential Reference. If there is any doubt br difficulty in the implementation of the impugned order recourse can al- ways be had to section 5(3) of the Act. In< the circumstances it is urged that this Court should refuse to answer the Reference. F The Union Territory of Pondicherry contends that the promulgation of the Ordinance (now Act) is intended to further protract the long stand- ing water dispute which came to be referred to the Tribunal only after this Court issued a mandamus in that behalf and is likely to prejudicially affect the interest of the State as well as the farmers and other inhabitants who utilise the water from river Cauvery. It is contended that the said G legislation is unconstitutional and is a piece of colourable legislation for the following reasons:

(a) the power of the State Legislature to enact a law on the subject falling in Entry 17 List II, is subject to the provi- sions of Entry 56 in List I, and once Parliament had made H a declaration in that behalf in section 2 of the River Boards

540 · SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A Act, the State Legislature was not competent to enact the impugned law, (b) once the Central Government had entrusted the Cauvery water dispute to an independent Tribunal under the provi- · sions of the Act, it was not constitutionally permissible B for Karnataka to enact the impugned law, (c) in the case of flowing water the riparian States have no ownership or proprietary right therein except in the usufruct thereof and, therefore, the power to legislate therein un- der Entry 17 of List II can extend to only the usufructurary right subject to the right of a riparian State to get the c customary quantity of water, (d) the objective of the impugned legislation is to set at naught the interim order of the Tribunal and to the extent it seeks to interfere with the exercise of judicial powers it is un-

D constitutional, (e) the impugned legislation is violative of Article 21 of the Constitution as it is intended to diminish the supply of water to Tamil Nadu and Pondicherry which is also against the spirit of Articles 38 and 39 of the Constitution, and ... (t) the impugned legislation seeks to eclipse the interim or- E der of the Tribunal constituted under an Act made in virtue of Article 262 of the Constitution and being in conflict with the Central legislation is void for repug- nancy. For the above reasons, Pondicherry contends that the Ordinance (now the Act) is constitutionally invalid.

As regards Question 2 it is contended that the water dispute referred to the Tribunal comprised the issue regarding the grant of interim relief as held by KasJiwal, J. and hence the interim order made by the Tribunal constitutes a report within the meaning of section 5(2) of the Act and consequently the Central Government is obliged to publish it is required by section 6 of the Act. Once. '"if. is so published it will operate as a decision in rem but even without publication it is binding on Kamataka as a decision in personam. If any explanation or guidance is required it can be had from the Tribunal by virtue of section 5(3) of the Act. Once the time for seeking explanation or guidance is over the law enjoins on the H. Central Government the obligation to publish the report under section 6 of

CAUVERY WATER DISPUTES TRIBUNAL [SAWANf, J.] 541

the Act. Both the elements of Question 2 must, contends Pondicherry, be answered in the affirmative.

So far as Question 3 is concerned, it is contended that the Tribunal constituted under the Act, though not a Court, has all the attributes of a Court since it is expected to discharge a judicial function and must, there- fore, be presumed to have 'incidental and ancilliary powers' to grant interim relief, if equity so demands. That is so because the jurisdiction of all-courts including this Court is taken away by virtue of section 11 of the Act read with Article 262(2) of the Constitution. The Tribunal is, there- fore, required to discharge the judicial function of adjudicating a water dispute between two or more States atid must, therefore, be deemed to possess the inherent power to grant interim relief which inheres in all such !: judicial bodies. Absence of an express provision conferring power to grant interim relief does not detract from the view that such power inheres in a Tribunal which is called upon to discharge an essentially judicial function. For discharging such a function it is essential that the Tribunal must possess inherent power to pass interim orders from time to time in aid of adjudication. The Union Territory of Pondicherry is, therefore, of the view that Question 3 must be answered in the affirmative.

Six intervention applications have been filed by different persons and bodies from Karnataka including the Advocate General of the State in support of the case of Karnataka raising contentions more or less similar to those raised by the State itself. One intervention application is filed by the Tamil Nadu Society which had preferred the original Writ Petition in which a mandate to constitute a Tribunal under the Act was given. The contentions raised by the interveners are covered in the written submis- sions filed by the State of Tamil Nadu and need not be reiterated. The said intervener has also filed written submissions through counsel Shri Ashok Sen which we shali deal with in the course of this judgment. F

Of the three questions which have been referred to this Court under Article 143(1) of the Constitution, there can be no dispute, and indeed there was none, that question 2 arises solely and entirely out of the Tribu- nal's order granting interim relief. The question is whether that order constitutes a report within the meaning of section 5(2) of the Act and is G required to be published in the gazette.of the Central Goverilment to make it effective. The first question refers t0 the constitutional validity of the Karnataka Ordinance (now the Act). Although this question does not spe- cifically refer to the Cauvery water dispute or the ·interim order passed by the Tribunal, the preamble of the said statute leaves no doubt that- it is concerned with 'the protection and preservation of irrigation in irrigable ~

542 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A areas of the Cauvery basin in Karnataka dependent on the waters of the Cauvery river and Its tributaries'. The provisions of the said law extracted earlier leave no manner of doubt that the State Government has been charged with the duty to abstract or cause !O be abstracted, during every water year, such quantity of water as it may deem requisite, from the flows of river Cauvery and its tributaries, 'notwithstanding anything con- B tained in any order, report or decision of any ...... Tribunal ', whether made before or after the commencement of the said law, save and except a final decision under section 5(2) read with section 6 of the Act. There can, therefore, be no doubt that if the provisions of this special K&nataka enactment become legally effective, the Tribunal's order dated 25th June, 1991 granting interim relief would stand eclipsed. In that view of the matter Question 1 is clearly intertwined with the Cauvery water dispute referred to the Tribunal and the interim order made by that body. The third question, it was contended by Tamil Nadu and Pondicherry, though innocent in appecrance and apparently general in nature, is in fact likely to nullify the interim order of the Tribunal. There can be no doubt that this Court's opinion on Question 3 will certainly have a bearing on the interim order of the Tribunal. Bearing this in mind we may now proceed to deal with the questions referred to this Court in the light of the submis- sions made at the Bar.

7Copy pinpoint7. We will deal with the respective contentions with reference to each of the questions. E Question No. I

To examine the validity of the contentions advanced on this ques- tion it is first necessary to analyse the relevant provisions of the Constitu- tion. F The distribution of legislative powers is provided for in Chapter I of Part XI of the Constitution. Article 245, inter alia states that subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of the State may make laws for the whole or any part of the State. Article 246 provides, among other things, that subject to clauses (l)and (2) of the said Article, the legislature of any State has exclusive power to make laws for such State or any p~rt thereof with respect to any of the matters enumerated· in the State List in the Seventh Schedule. Clauses (I) and (2) of the said Article refer to the Parliament's exclusive powers to make laws with respect to any of the matters enumerated in the Union List and the power of the Parliament and the legislature of the State to make laws with respect to any of the matters enumerated in the Concurrent List. Article 248 gives

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.] 543

the Parliament exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List. I

Entry 56 of the Union List reads as follows:

"Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest." ·

A reading of this Entry shows that so far as inter-State rivers and river valleys are concerned, their regulation and development can be taken ~ over by the Union by a Parliamentary enactment. However, that enact- C 1

ment must declare that such regulation and development under the control of the Union is expedient in the public interest.

Entry 17 in the State List reads as follows:

"Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I." ) An examination of both the Entries shows that the State has compe- tence to legislate with respect to all aspect of water including water flow- ing through inter-State rivers, subject to certain limitations, viz. the con-_ trol over the regulation and development of the inter-State river waters should not have been taken over by the Union and secondly, the State cannot pass legislation with respect to or affecting any aspect of the waters beyond its territory. The competence of the State legislature in respect of inter-State river waters is, however, denuded by the Parliamen- tary legislation· only to the extent to which the latter legislation occupies the field and no more, and only if the Parliamentary legislation in ques- F tion declares that the control of the regulation and development of the inter-State rivers and river valleys is expedient in the public interest, and not otherwise. In _other words, if a legislation is made which fails to make the said declaration it would not affect the powers of the State to make legislation in respect of inter-State river water under Entry 17. G Entry 14 of List II relates, among other things, to agriculture. In so far as agriculture depends upon water including river water, the State legislature while enacting legislation with regard to agriculture may be competent to provide for the regulation and development of its water resources including water supplies, irrigation and canals, drainage and embankments, water storage and water power which are the subjects men- H

544 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A tioned in Entry 17. However, such a legislation enacted under Entry 14 in so far as it relates to inter-State river water and its different uses and the manners of using it, would also be, it is needless to say, subject to the provisions of Entry 56. So also Entry 18 of List II which speaks, among · ~ other things, of land improvement which may give the State Legislature ·· the powers to enact similar legislation as under Entries 14 and 17 and subject to the same re'strictions. .

Entry 97 of the Union List is residuary and under it the Union has the power to make legislation in respect of any matter touching inter-State river water which is not enumerated in the State List or the Concurrent List. Correspondingly, the State legislature cannot legislate in relation to the said aspects or matters.

8Copy pinpoint8. Article 131 of the Constitution deals with original jurisdiction of the Supreme Court and states as follows:-

"131. Original Jurisdiction of the Supreme Court:- Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of ariy other court, have original jurisdiction in any dispute- (a) between the Government of India and one or more States; or E (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question F (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar in- G strument which, having been entered into or ex- ecuted before the commencement of this Constitu- !' tion, continues in operation after such commence- ment, or which provides that the said jurisdiction shall not extend to stach a dispute." It is clear from the Article that this Court has original jurisdiction, H among other things, in any dispute between two or more States where the

CAUVERY WATER DISPUTES .TRIBUNAL [SA WANT, J.] · 545

dispute involves any question whether of law or fact onwhich the exist- A ence and· extent of a legal right depends except those matters which are specifically excluded from the said jurisdiction by the J>roviso. However, the Parliament has also been given power by Article 262 of the Constitu- tion to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint with respect to the use, distribution or control of the water of, or in, any inter- ,B State river or river valley. Section 11 of the Act, nainely, the Inter-State Water Disputes Act, 1956 has in terms provided for such exclusion of the jurisdiction of the courts. It reads as follows:-

"Sec.11- Notwithstanding anything contained in any other law, ' " neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act."

This provision of the Act read with Article 262 thus excludes origi- 11al cognizance or jurisdiction of the inter-State water dispute which may be referred to the Tribunal established under the Act, from the purview of any Court including the Supreme Court under Article 131.

9Copy pinpoint9. We may now analyse the provisions of the Karnataka Ordinance in · question the text of which is already reproduced. Its preamble states, that it is issued (i) to provide for the protection and preservation of irrigation in irrigable areas of the Cauvery basin in Kamataka dependent on the waters of the Cauvery river and its tributaries, and (ii) that the Governor of Karnataka was satisfied that circilmstances existed which rendered it necessary for him to take immediate action for the said protection and . ' preservation. The irrigable areas of which protection and preservation is sought by the Ordinance are mentioned in the Schedule to the Ordinance. Admittedly the Schedule includes the irrigable area as. existing in 1972 during the tenure of the agreement of 1924. between Kamataka and Tamil Nadu as well as the increase in the same since 1972 till the date of the Ordinance as well as the areas which are committed to be brought under irrigation on account of some of the projects mentioned in Column II of the Schedule. Clause 3(1) of the Ordinance then makes a declaration of the duty of the State Government to protect, preserve and maintain irriga- tion from the waters of the Cauvery river and its tributaries in the said 0 irrigable area. Sub-clause (2) of the said clause then gives powers to the State Government to abstract or cause to be abstracted during every water year (which is defined as the year commencing with 1st of June of a calendar year and ending with 3 lst May of next calendar year), such quantity of water as it may deem requisite, from the flows of the Cauvery river and its tributaries and in such manner and during such intervals as H

546 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A the State Government or any officer not below the rank of an Engineer-in- Cbief designated by it may deem fit and proper. (Emphasis supplied). This clause, therefore, vests in the State Government or the Officer designated by it, an absolute power to appropriate any quantity of water from the Cauvery river and its tributaries and in any manner and at any iilterval as may be deemed fit and proper. The power given by the clause is unre- B stricted arid uninhibited by any consideration save and except the protec- tion and preservation of the irrigable area of the Karnataka State. Clause 4 is still more absolute in its terms -and operation inasmuch as it declares that the Ordinance and any rules and orders made thereunder shall have effect notwithstanding anythng contained in any Order, report c or decision of any court or tribunal (whether made before or after the commencement of the Ordinance) save and except a final decision under the provisions of sub-Section (2) of Section 5 read with Section 6 of the Inter-State Water Disputes Act. ·

Clause (5) states that when any difficulty arises in giving effect to the provisions of this Ordinance, the State Government may, by order, as D occasion requires, do anything which appears to· be necessary for the purpose of removing the difficulty, and clause (6) gives power to the State Government to make rules to carry out the purpose of the Ordinance. Clauses (4), (5) and (6) read together show that the Ordinance, Rules and Order made thereunder will prevail over any order, report or decision of any court including the Supreme Court and, of course, of the Tribunal E under the Inter-State Water Dispute Act. The only decision which is excluded from the overriding effect of the Ordinance"is the final decision of the Water Disputes Tribunal given under Sectiori 5 (2) read with Sec- tion 6 of the Inter-State Water Disputes Act.

10Copy pinpoint10. The object of these provisions of the Ordinance is obvious. Coming F close on the Order dated 25th June, 1991 of the Tiibunal and in the context of the stand taken by the State of Kamataka that the Tribunal has no power or jurisdiction to pass any interim order or grant ady interim relief, it is to override the said decision of the Tribunal and its implementation. The Ordinance has thus the effect of defying and nullifying any interim order of the Tribunal appointed under a law of the Parliament. This position G is not disputed before us on behalf of the State of Kamataka. The other effect of the Ot:dinance is to reserve to the State ofKamataka exclusively the right to appropriate as much of the water of river Cauvery and its tributaries as it deems requisite and in a manner and at periods it deems fit and proper, although pending the final adjudication by the Tribunal.

11Copy pinpoint11. It cannot be disputed that the Act, viz., the Inter-State Water Disputes Act, 1956 is not a legislation under Entry 56. In the first instance Entry 56

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.J 547

speaks of regulation and development of inter-State rivers and river val- A leys and does not relate to the disputes between the riparian States with l, regard to the same and adjudication thereof. Secondly, and even assuming that the expression "regulation and development" would in its width, in- clude resolution of disputes arising therefrom and a provision for adjudi- cating them, the Act does not make the' declaration required by Entry 56. This is obviously not an accidental omission but a deliberate disregard of B the Entry since it is not applicable to the subject-matter of the legislation. Thirdly, no Entry in either of the three Lists refers specifically to the adjudication of disputes with regard to inter-State river waters.

The reason why none of the Entries in the Seventh Schedule men- tion the topic of adjudication of disputes relating to the inter-State river c waters is not far to seek. Article 262 of the Constitution specifically provides for such adjudication. The Article appears under the heading "Disputes relating to Waters'', and reads as follows:

"262. Adjudication of disputes relating to waters of inter- State rivers or river valleys.- D ••••••••••••••••••••••~••••••••••

(I) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribu- tion or control of the waters of, or in, any inter-State river or river valley. E (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (I)." An analysis of the Article shows that an exclusive power is given to the Parliament to enact a law providing for the adjudication of such dis- putes. The disputes or complaints for which adjudication may be provided relate to the "use, distribution or control" of the waters of, or in any inter- State river or river valley. The words "use", "distribution" and "control" .... are of wide import and may include regulation and development of the G ' said waters. The provisions clearly indicate the amplitude of the scope of adjudication inasmuch as it would take within its sweep the determination of the extent, and the manner, of the use of the said waters, and the power to give directions in respect of the same: The language of the Article has, further to be distinguished from that of Entry 56 and Entry 17. Whereas Article 262 (1) speaks of adjudication of any dispute or complaint and that too with respect to the use, distribution or control of the waters of or

548 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

A in any inter-State river or river valleys, Entry 56 speaks of regulation and development df inter-State rivers and river valley. Thus the distinction between Article 262 and Entry 56 is that whereas former speaks of adjudi- cation of disputes with respect to use, distribution or control of the waters of any inter-State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys. (Emphasis supplied). B Entry 17 likewise speaks of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56. It does not speak either of adjudica- tion of disputes or of an inter-State river as a whole as indeed it cannot, for a State can only deal with water within its territory. It is necessary to bear in mind these distinctions between Article 262, Entry 56 and Entry C 17 as the arguments and counter-arguments on the validity of the Ordi- nance have a bearing on them.

12Copy pinpoint12. We have already pointed out another important aspect of Article 262, viz., Clause (2) of the Article provides that notwithstanding any other provision in the Constitution, Parliament may by law exclude the jurisdic- D tion of any court. including the Supreme Court in respect of any dispute or complaint for the adjudication of which the provision is made in such law. We have also noted that Section 11 of the Inter-State Water Disputes Act makes such a provjsion.

13Copy pinpoint13. The said Ac!. a:S its preamble shows, is an Act to provide for the E "adjudication of disputes relating to waters of inter-State rivers and river valleys". Clause (c) of Section 2 of the Act defines "water dispute" as follows: ·

"2. In this Act, unless the context otherwise requires,-

F (a) ················································· (b) (c) "water dispute" means any dispute or difference between two or more State Governments with respect to (i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; or (ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) the levy of any water rate in contravention of the prohibi- H tion contained in section 7 ."

CAUVERY WATER DISPUTES TRIBUNAL [SAWANT, J.) 549

Section 3 of the Act states that if it appears to the Government of any State that the water dispute with the Government of another State of the nature stated therein, has arisen or is likely to arise, the State Govern- ment may request the Central Government to refer the water dispute to a Tribunal for adjudication. Section 4 of the Act provides for the constitu- tion of a Tribunal when a request is received for referring the dispute to a Tribunal and the Central Government is of the opinin that the water dfs- · -B pute cannot be settled by negotiations. Section 5 of the Act requires the Tribunal to investigate the matter referred to it and forward to the Central Government the report of its findings and its decision. The Central Gov- ernment has then to publish the decision under Section 6.ofthe Act which decision is final and binding on the parties to the dispute and has to be given effect to by them. These dominant provisions, among others, of the C Act clearly show that apart from its title, the Act is made by the Parlia- ment pursuant to the provisons of Article 262 of the Constitution specifi- cally for the adjudication of the disputes between the riparian States with regard to the use, distribution or control of the waters of the inter-State rivers or river valleys. The Act is not relatable to Entry 56 and, therefore, does not cover either the field occupied by Entry 56 or by Entry 17. Since D the subject of adjudication of the said disputes is taken care of specifically and exclusively by Article 262, by necessary implication the subject stands excluded from the field covered by Entries 56 and 17. It is not, therefor~, · premissible either for the Parliament under Entry 56 or for a State legisla- ture under Entry 17 to enact a legislation providing for adjudication of the said disputes or in any manner affecting or interferring with the adjudica- E ti on or adjudicatory process of the machinery for adjudication established by law under Article 262. This is apart from the fact that the State legisla- ture would even, otherwise be incompetent to provide for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the inter-State river waters beyond its territory or with regard to disputes between itself and another State relating to the use, distribu- F tion or control of such waters. Any such act on its part will be extra- territorial in nature and, therefore, beyond its competence.

14-. Shri Venugopal has in this connecHon urged that it is Entry 97 of the Union List which deals with the to_pic of the use, distribution and control of waters of an inter-State river. The use, distribution and control of the G waters of such rivers; by itself is not a topic=which is covered by Article

262. It is also, accotding to him, not a topic--covered by Entry 56 which only speaks of regulation and development of inter-State rivers and river valleys meaning thereby the entirety of the rivers and river valleys and not the waters at pr in a particular place (emphasis supplied). Further, the regulation and development, according to him, has nothing to do with the H

550 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A use, distribution or allocation of the waters of the inter-State river be- tween different riparian States. That topic should, therefore, be deemed to have been covered by the said residuary Entry 97.

With respect to the learned counsel, it is not possible to accept this interpretation of the Entry ·97. This is so firstly because, according to us, B the_ expression "regulation and development of Inter-State rivers and river valleys" in Entry 56 would include the use, distribution and allocation of • the waters of the inter-State rivers and river valleys between different riparian States. Otherwise the intention of the Constituent Assembly to provide for the Union to take over the regulation and development under its control makes no sense and· serves no purpose. What is further, the C River Boards Act, 1956 which is admittedly eracted under Entry 56 for the regulation and development of inter-State rivers and river valleys does cover the field of the use, distribution and allocation of the waters of the inter-State rivers and river valleys. This shows that the expression "regu- lation and development" of the inter-State rivers and river valleys in Entry 56 has legislatively also been construed to include the use, distribution or allocation of the waters of the inter-State rivers and river valleys between riparian States. We are also of the view that to contain the operation of Entry 17 to the waters of an inter-State river and river valleys within the boundaries of a State and to deny the competence·to the State legislature to interfere with or to affect or to extend to the use, distribution and allocation of the waters of such river or river valley beyond its territory, directly or indirectly, it is not necessary to fall back on the residuary Entry 97 as an appropriate declaration under Entry 56 would suffice. The very basis of a federal Constitution like ours mandates such interpretation and would not bear an interpretation to the contrary which will destory the constitutional scheme and the Constitution itself. Although, therefore, it is possible technically to separate the "regulation and development" of the inter-State river and river valley from the "use, distribution and alloca- tion" of its water, it is neither warranted nor necessary to do so.

The above analysis of the relevant legal provisions dealing with the inter-State rivers and river valleys and their waters shows that the Act, viz., the Inter-State Water Disputes Act, 1956 can be enacted and has been· enacted only under Article 262 of the Constitution. It has not been enacted under Entry 56 as it relates to the adjudication of the disputes and with no other aspect either of the inter-State river as a whole or of the waters in it.

15Copy pinpoint15. It will be pertinent at this stage also to note the true legal position about the inter-State river water and the rights of the riparian States to tl:ie

CAUVERY WATER DISPlITES TRIBUNAL [SAWANT, J.] 551

same. In State of Kansas v. State of Colorado, [206) US 46 the Supreme A Court of the United States ha~ in this connection observed as follows: "One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others and is bound to yield its own view to B none".

" ......the action of one State reaches, through the agency of natural laws into the territory of another State, the question of the extent and the limitation of the rights of the two States becomes a matter of justiciable dispute between them ..... this court is called upon to settle that dispute in such a way as will c recognise the equal rights of both and at the same time estab- lish justice between them".

"The dispute is of a justiciable nature to be adjudicated by the Tribunal and is not a matter for legislative jurisdiction of one State ... ". Q "The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Providence, each proprietor h~ a E right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it i's mad~ than a just and reasonable use, it cannot be said to be :wrongful or injurious to a proprietor lower down". F, "The right to the use of the flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute, and exclusive right to all the water flowing past their land so that any obstruction would give a cause of action; but it is a. right to the flow and enjoyment of the water subject to a similar right in all the proprietors to the reasonable enjoyment ,..G of the same gift of providence. It is therefore only for an abstraction and deprivation of this common benefit or for an unreasonable and unauthorised use of it that an action will lie."

16Copy pinpoint16. Though the waters'.of an inte.r-State river pass through tl~e territories H of the riparian States such waters cannot be said to be located in any one ·

552 SUPREME COURT REPORTS (1991] SUPP. 2 S.C.R.

A State. They are in a state of flow and no State can claim exclusive owner- ship of such waters so as to deprive the other States of their equitable share. Heni;e in respect of such waters, no State can effectively legislate for the use of such waters since its legislative power does not extend beyond its territories. It is further an acknowledged principle of distribu- tion and allocation of waters between the riparian States that the same has B. to be done on the basis of the equitable share of each State. What the ·equitable share will be will depend upon the facts of each case. It is against the background of these principles and the provisions of law we have already discussed that we have to examine the respective contentions of the parties.

c 17. The Ordinance is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz., the Inter-State Water Disputes Act which legislation has been made under Article 262 of the Constitution. As has been pointed out above, while analysing the provi- sions of the Ordinance, its obvious purpose is to nullify the effect of the interim order passed by the Tribunal on 25th June, 1991. The Ordinance D makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of .Karnataka show that since according to the State of .Karnataka the Tribunal has no power to pass any ·interim order or grant any interim relief as it has done by the order of 25th June, 199 l, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the E meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the in- . i terim order or not and whether the order is binding on it or not. Secondly, the State has also presumed ~hat till a final order is passed by the Tribu- F nal, the State has the power to appropriate the waters of the river Cauvery to itst:lf unmindful of and unconcemed with the consequences of such action on the lower riparian States. Kamataka has thus presumed that it has superior rights over the said waters and it can deal with them in any manner. In the process, the State of Karnataka has also presumed that the lower ripar in States have no equitable rights and It is the sole judge as to the share ot the other riparian States in the said waters. What is further, r the State of Kamataka has assumed the role of a judge in its own cause. Titus, apart from the fact that the Ordinance directly nullifies the decision of the Tribunal dated 25th June,· 1991, it also challenges the decision g~ted 26th April, 1991 of this Court which has ruled that the Tribunal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordinance further has an extra-territorial

CAUVERY WATER DISPUfES TRIBUNAL [SAWANT, J.] 55l

operation insasmuch as it interferes with the equitable rights of Tamil A Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Otdinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitu- tional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judicial power of the State. B

In this connection, we may refer to a decision of this Court in Municipal Corporation of the City of Ahmedabad etc. v. Ne:.V Shot,ock Spg. & Wvg. Co., Ltd. etc., [1971] l SCR 288. The facts in this case ~ere that the High Court as well as this Court had held that property tax collected for certain years by the Ahmedabad Municipal Corporation was C illegal. In order to nullify the effect of the decision, the State Government introduced Section l 52A by amendment to the Bombay Provincial Mu- nicipal Corporation Act the effect of which was to command the Munici- pal Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. This Court held that the said provision makes a direct in road into the judicial powers of the State. The D legislatures under the Constitution have, within the prescribed limits, power to make laws prospectively as well as retrospectively. By exercis~ of ; those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legis- lature in the country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts. Consequently, the provisions of sub-section (3) of section 152A were held repugnant to the Constitution and were struck down. To the same effect is another decision 1

of this court in Madan Mohan Pathak v. Union of India & Ors. etc., [1978] 3 SCR 334. In this case a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a deci- sion of the High Court of Calcutta. This settlement was sought to be scuttled by the Corporation on the ground that they had received instruc- tions from the Central Government that no payment of bonus should be 1

made by the Corporation to its employees without getting the same cleared by the Government. The employees, therefore, moved the High Court, and the High Court allowed the petition. Against that, a Letters Patent Appeal was filed and while it was pending, the Parliament passed the Life Insur- G ance Corporation (Modification of Settlement) Act, 1976 the effect of which was to deprive the employees of bonus payable to them in accord- ance with the tenns of the settlement and the decision of the Single Judge of the High Court. On this amendment of the Act, the Corporation with- drew its appeal and refused to pay the bonus. The employees having approached this Court challenging the constitutional validity of the said H

554 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

A legislation, the Court held that it would be unfair to adopt legislative procedure to undo a settlement which had become the basis of a decision of the High Court. Even if legislation can remove the basis of a decision, it has to do it by alteration of general rights of class but not by simply excluding the specific settlement which had been held to be valid and enforceable by a High Court. The object of the Act was in effect to take B away the force of the judgment of the High Court. The rights under the judgment would be said to arise independently of Article 19 of the Consti- tution.

Yet another decision of this Court on the point is P. Sambamurthy & Ors. etc. etc. v. State of Andhra Pradesh & Anr., (1987] 1 SCR 879. In c this case what was called in question was the insertion of Article 371-D of the Constitution. Clause (5) of the Article provided that the order of the Administrative Tribunal finally disposing of the case would become effec- tive upon its confirmation by the State Government or on the expiry of three months from the date on which the order was made, whichever was earlier. The proviso to the clause provided that the State Government may by special order made in writing for reasons to be specified therein, modify· oi annul any order of the Administrative Tribunal before it became effec- tive and in such a case the order of the Tribunal shall have effect only in such modified form or be of no effect. This court held that it is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law, and the power of judicial review is conferred by the constitution with a view to ensuring that the law is observed and there is compliance with the requirement of the law on the part of the executive and other authoritie"s. It is through the power of judicial review conferred on an independtnt institutional authority such as the High Court that the rule of law is maintained and every organ of the F State is kept within the limits of the law. If the exercise of the power of judicial review can be set at. naught by the State Government by over- riding the decision given against it, it would sound the death-knell of the rule of law. The rule of law "1ould be meaningless as it would be open to the State Government to d~fy ' the law and. yet get away with it. The proviso to cl. (5) of Art. 371-D was therefore, violative of the basic G structure doctrine. ' / '