7. We will deal with the respective contentions with reference to each of the questions.
Question No. 1:
To examine the validity of the contentions advanced on this question it is first necessary to analyze the relevant provisions of the Constitution.
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 clause (1) and (2) of the said Article, the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List in the Seventh Schedule, Clauses (1) 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 the Parliament exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List.
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 enactment 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 competence to legislate with respect to all aspects of water including water flowing through inter-State rivers, subject to certain limitations, viz. the control 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 Parliamentary legislation only to the latter legislation occupies the field and no more, and only if the Parliamentary legislation in question 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.
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 mentioned 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 (sic) subject to the same restrictions.
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.
8. 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 any other Court, have original jurisdiction in any dispute---
between the Government of India and any State or States on one side and one or more other States on the other; or
between two or more States,
if and in so far as the dispute involves any question (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 instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.”
It is clear from the Article that this Court has original jurisdiction, among other things, in any dispute between two or more States where the dispute involves any question whether of law or fact on which the existence and extent of a legal right depends except those matters which are specifically excluded from the said jurisdiction by the proviso. However, the Parliament has also been given power by Article 262 of the Constitution 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-State river or river valley. Section 11 of the Act, namely, 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 original cognizance or jurisdiction of the inter-State water disputes which may be referred to the Tribunal established under the Act, from the purview of any Court including the Supreme Court under Article 131.
9. We may now analyze 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 Karnataka dependent on the waters of the Cauvery river and its tributaries, and (ii) that the Governor of Katnataka was satisfied that circumstances 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 Karnataka 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 irrigation from the waters of the Cauvery river and its tributaries in the said 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 31st May of next calendar year) such quantity of water as it may deem requisite, from the flow of the Cauvery river and its tributaries and 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. (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 interval as may be deemed fit and proper. The power given by the clause is unrestricted and uninhibited by any consideration save and except the protection 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 anything contained in any Order, report 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 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 under the Inter-State Water Disputes 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 Section 5(2) read with Section 6 of the Inter-State Water Disputes Act.
10. The object of these provisions of the Ordinance is obvious. Coming close on the Order dated 25th June, 1991 of the Tribunal and in the context of the stand taken by the State of Kartanaka that the Tribunal has no power or jurisdiction to pass any interim order or grant any 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 is not disputed before us on behalf of the State of Karnataka. The other effect of the Ordinance is to reserve to the State of Karnataka 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.
11. 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 speaks of regulation and development of inter-State rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Secondly, and even assuming that the expression “regulation and development” would in its width, include resolution of disputes arising therefrom and a provision for adjudicating them, the Act does not make the declaration required by Entry 56. This is obviously not an accidental omission but a deliberate disregard of 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 mentions the topic of adjudication of disputes relating to the inter-State river 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. - (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
(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 (1)”.
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 disputes. 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 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 in any inter-State river or river valley, Entry 56 speaks of regulation and development of inter-State rivers and river valleys. Thus the distinction between Article 262 and Entry 56 is that whereas former speaks of adjudication 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 river and river valleys (Emphasis supplied). 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 adjudication 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 17 as the arguments and counter-arguments on the validity of the Ordinance have a bearing on them.
12. 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 jurisdiction 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 provision.
13. The said Act, as its preamble shows, is an Act to provide for the “adjudication of disputes relating to waters of inter-State rivers and river valleys”. Clause (c) of Section 2 of the Act defines “water disputes” as follows:
(c) “water dispute” means any dispute or difference between two or more State Governments with respect to
(i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; or
(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or
(iii) the levy of any water rate in contravention of the prohibition contained in Section 7”.
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 Government may request the Central Government to refer the water dispute to a Tribunal for adjudication. Section 4 of the Act provides for the constitution of a Tribunal when a request is received for referring the dispute to a Tribunal and the Central Government is of the opinion that the water dispute 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 Government has then to publish the decision under Section 6 of the 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 Act clearly show that apart from its title, the Act is made by the Parliament pursuant to the provisions of Article 262 of the Constitution specifically for the adjudication of the disputes between the riparian State 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 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, therefore, permissible either for the Parliament under Entry 56 or for a State legislature under Entry 17 to enact a legislation providing for adjudication of the said disputes or in any manner affecting or interfering with the adjudication or adjudicatory process or the machinery for adjudication established by law under Article 262. This is apart from the fact that the State legislature 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 its territory or with regard to disputes between itself and another State relating to the use, distribution 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 connection urged that it is Entry 97 of the Union List which deals with the topic of the use, distribution and control of waters of an inter-State river. The use, distribution and control of the waters of such rivers, by itself is not a topic which is covered by Article 262. It is also, according 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 or in a particular place (emphasis supplied). Further, the regulation and development, according to him, has nothing to do with the use, distribution or allocation of the waters of the inter-State river between 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 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 River Boards Act, 1956 which is admittedly enacted 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 “regulation 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 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 destroy 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 valleys from the “use, distribution and allocation” 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.
15. It will be pertinent at this stage also to note the true legal position about the inter-State river water and the rights of the riparian States to the same. In State of Kansas v. State of Colorado, (1906) 206 US 46, the Supreme Court of the United States has in this connection observed as follows:
“One cardinal rule, underlying all the relations of the States to each other, it 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 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 justifiable dispute between them….this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them.”
“The dispute is of a justifiable nature to be adjudicated by the Tribunal and is not a matter for legislative jurisdiction of one State…”
“The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down.”
“The right to the use of 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 of the same gift of Providence. It is therefore only for an abstraction and deprivation of this common benefit or for an unreasonable and unauthorized use of it that an action will lie.”