(C) Karnataka Cauvery Basin Irrigation Protection Ordinance (1991), S.1 – Constitutional validity – Karnataka Ordinance of 1991 is unconstitutional – It is in direct conflict with Art. 262, is against judicial power of State and also bad for having extraterritorial operation.
Inter-State Water Disputes Act (1956), Ss. 5, 6, 11.
The Karnataka Cauvery Basin Irrigation Protection Ordinance (1991) is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz., the inter-State Water Disputes Act 1956 which legislation has been made under Article 262 of the Constitution. It is obvious from the provisions of the Ordinance that its purpose is to nullify the effect of the interim order passed by the Cauvery Water Disputes Tribunal on 25th June, 1991. The Ordinance makes no secret of the said fact. 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 Cauvery Water Disputes tribunal has no power to pass any interim order or grant any interim relief as it has done by the order of 25th June, 1991, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the meaning of Section 6 of 1956 Act 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 interim order or not and whether the order is binding on it or not. Secondly, the State has also presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequence of such action on the lower riparian State. Karnataka 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 riparian States have no equitable rights and it is the sole judge as to the share of the other riparian States in the said waters. What is further, the State of Karnataka has assumed the role of a judge in its own cause. Thus, apart from the fact that the Ordinance directly nullifies the decision of the Tribunal dated 25th June, 1991, it also challenges the decision dated 26th April, 1991 of the Supreme Court (1991 AIR SCW 1286) 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 operation inasmuch as it interferes with the equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Ordinance interferes with the decision of the Supreme Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the inter-State Water Disputes Act is made but being also in conflict with the judicial power of the State.
Section 11 of inter-State Water Disputes Act excludes the jurisdiction of all Courts including Supreme Court in respect of Water disputes referred to a Tribunal. The effect of the provisions of Section 11 read with Article 262 of the Constitution therefore, is that the entire judicial power of the State and, therefore, of the courts including that of the Supreme Court to adjudicate upon original dispute or complaint with respect to the use, distribution or control or control of the water of, or in any inter-State river or river valleys has been vested in the Tribunal appointed under Section 4 of the 1956 Act. It is, therefore, not possible to say that the question of grant of interim relief falls outside the purview of the said provisions and can be agitated under Article 131 of the Constitution. Hence any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State. In view of the fact that the Karnataka Ordinance (1991) seeks directly to nullify the order of the Tribunal passed on 25th June, 1991, it impinges upon the judicial power of the State and is, therefore, ultra vires the Constitution
Further the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and Pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra-territorial operation. Hence the Ordinance is on that account beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1).
The Karnataka Ordinance 1991 is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issuing the Ordinance has sought to take law in its own hand and to be above the law. Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. The Ordinance if allowed to stand would lead to the break down of the Constitutional mechanism and affect the unity and integrity of the nation.
(D) Constitution of India, Articles 245, 246 – Legislative powers – Scope – Annulling of judicial decision – Legislature cannot set aside an individual decision inter-parties – It can change basis of such decision.
The legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter-parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal.
(E) Constitution of India, Art. 143 – Reference of question to Supreme Court for opinion – Scope – President cannot ask Supreme Court to reconsider its decision – Decision of Supreme Court that water disputes Tribunal can give interim relief when grant of interim relief forms part of reference – Operates as res judicata and cannot be reopened. Civil P.C. (1908), S. 11.
It cannot be said that the President can refer any question of law under Article 148 and, therefore, also ask the Supreme Court to reconsider any of its decisions. Clause (1) of Article 143 empowers the President to refer for Supreme Court’s opinion a question of law or fact which has arisen or is likely to arise. When the Supreme Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the president to know what the true position of law on the question is. The decision of the Supreme Court on a question of law is binding on all courts and authorities. Hence under the said clause the President can refer a question of law only when this Court has not decided it. Secondly, a decision given by the Supreme Court can be reviewed only under Article 137 read with Rule 1 of Order XL of the Supreme Court Rules 1966 and on the conditions mentioned therein. When, further, the Supreme Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if its is manifestly wrong and productive of public mischief. Under the Constitution such appellate jurisdiction does not vest in the Supreme Court; nor can it be vested in it by the President under Article 148. Any other interpretation would mean that the advisory jurisdiction under Art. 148 is also an appellate jurisdiction of the Supreme Court over its own decision between the same parties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143 it would be a serious in road into the independence of judiciary. The provisions of Cl. (2) of Art. 374 of the Constitution also do not support the view that judgment could be reconsidered by S.C. in its advisory jurisdiction.
The Supreme Court in 1991 AIR CW 1280 after perusing the relevant provisions of the Act which were undoubtedly brought to its notice, has come to the conclusion that the Tribunal had jurisdiction to grant interim relief when the question of granting interim relief formed part of the Reference. There is further no violation of any of the principles of natural justice or of any provision of the Constitution. The decision also does not transgress the limits of the jurisdiction of this Court. The decision being inter-parties operates as res judicata on the said point and cannot therefore be reopened.
(F) Constitution of India, Art. 143 – Water disputes Tribunal – Whether can grant interim relief when no reference for grant of interim relief is made – Question left unanswered as context in which reference was made did not have any bearing on it.
(Para 24) (G) Inter-State Water Disputes Act (1956), Ss. 5(2), (3), 6 – Water disputes Tribunal – Report and decision – Water constitutes – Interim order or relief granted by Tribunal which is not procedural and has to implemented by parties – Is report and decision of Tribunal – Interim order passed by Cauvery Water Disputes Tribunal dt. 25-7-91 is report and decision of Tribunal.
The interim orders passed or reliefs granted by the Water Disputes Tribunal when they are not of purely procedural nature and have to be implemented by the parties to make them effective, are deemed to be a report and a decision within the meaning of Section 5(2) and 6 of the Act. The Order dt. 25-7-1991 of the Cauvery Water Disputes Tribunal discusses the material on the basis of which it is made and gives a direction to the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC of water is available in Tamil Nadu’s Mettur reservoir in a year from June to May. It makes the order effective from 1st July, 1991 and also lays down a time-table to regulate the release of water from month to month. It also provides for adjustment of the supply of water during the said period. It further directs the State of Tamil Nadu to deliver 6 TMC of water for the Karaikl region of the Union Territory of Pondicherry. In addition, it directs the State of Karnataka not to increase its area under irrigation by the waters of the river Cauvery beyond the existing 11.2 lakh acres. It further declares that it will remain operative till the final adjudication of the dispute. Thus the Order is not meant to be merely declaratory in nature but is meant to be implemented and given effect to by the parties. Hence, the order dt. 25-7-1991 constitutes a report and a decision within the meaning Section 5(2) and is required to be published by the Central Government under Section 6 of the Act in order to be binding on the parties and to make it effective.
(Paras 28, 30)
The event that the interim order passed by the Tribunal does or does not say that it is a report and decision is not determinative of the issue. Either the Order is such a report and decision because of its contents or not so at all. It the contents do not show that it is such a report, it will not become on because the Order states so.
The plea that it is only the decision which finds support from the report of the Tribunal which in turn must be the result of a full and final investigation in full which is required to be published under Section 6 of the Act and not an order passed by the Tribunal on interim or incomplete investigation; is not tenable. The scope of the investigation that a Tribunal or a court makes at the stage of passing an interim order is limited compared to that made before making the final adjudication. The extent and the nature of the investigation and the degree of satisfaction required for granting or rejecting the application for interim relief would depend upon the nature of the dispute and the circumstances in each case. No hard and fast rule can be laid down in this respect. However, no Tribunal or court is prevented or prohibited from passing interim orders on the ground that it does not have at that stage all the material required to take the final decision. To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is made. Hence, it will have to be held that the Tribunal constituted under the Act is not prevented from passing an interim order or direction, or granting an interim relief pursuant to the reference merely because at the interim stage it has not carried out a complete investigation which is required to be done before it makes its final report and gives its final decision. It can pass interim orders on such material as according to it is appropriate to the nature of the interim order.
The provisions of S. 5(3) providing for second reference or reconsideration of its decision by Tribunal cannot be so construed so as to incapacitate the Tribunal from passing interim orders. If the Tribunal has power to make an interim decision when a reference for the same is made, that decision will also attract the provisions of S. 5(3). The Central Government or any State Government after considering even such decision may require an explanation or guidance from the tribunal as stated in the said provisions and such explanation and guidance may be sought within three months from the date of such decision. The Tribunal may then reconsider the decision and forward to the Central Government a further report giving such explanation or guidance as it deems fit. In such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective. Once a decision, whether interim or final, is made under Section 5(2) it attracts the provisions both of sub-section (3) of that Section as well as the provisions of Section 6.
(H) Constitution of India, Art. 143 – Advisory jurisdiction – Opinion given by Supreme Court – Is it binding on all Courts – Question left unanswered. (Para 31) Cases Referred: Chronological Paras
AIR 1978 SC 803: (1978) 3 SCR 334: 1978 Lab IC 612 17
AIR 1970 SC 1992: (1971) 1 SCR 288 17
AIR 1955 SC 233: (1955) 1 SCR 1104 21
AIR 1955 SC 661: (1955) 2 SCR 603 21
AIR 1954 Bombay 351 21
AIR 1951 SC 332: 1951 SCR 747 21
AIR 1949 FC 175: 1949 FCR 595: (1949) 50 Cri LJ 897 21
(1906) 206 US 46: 51 Law Ed 956, State of Kansas v. State of Colorado 15
SAWANT, J.:- On July 27, 1991 the president, under Article 143 of the Constitution, referred to this Court three questions for its opinion. The Reference reads as follows:
“Whereas, in exercise of the powers conferred by Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as “the Act”), the Central Government constituted a Water Disputes Tribunal called “the Cauvery Water Disputes Tribunal” (hereinafter called “the Tribunal”) by a notification dated 2 June, 1990, a copy whereof is annexed hereto, for the adjudication of the Water Dispute regarding the Inter-State River Cauvery;
Whereas on 25 June 1991, the Tribunal passed an interim Order (hereinafter referred to as “the Order”), a copy whereof is annexed hereto;
Whereas, differences have arisen with regard to certain aspects of the Order;
Whereas, on 25 July 1991, the Governor of Karnataka promulgated the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 (hereinafter referred to as “the Ordinance”), a copy whereof is annexed hereto;
Whereas, doubts have been expressed with regard to the constitutional validity of the Ordinance and its provisions;
Whereas, there is likelihood of the constitutional validity of the provisions of the Ordinance, and any action taken thereunder, being challenged in Courts of law involving protracted and avoidable litigation;
Whereas, the said differences and doubts have given rise to a public controversy which may lead to undesirable consequences;
And whereas, in view of what is hereinafter stated, it appears to me that the following questions of law have arisen and are of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon;
Now, therefore, in exercise of the powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, Ramaswamy Venkataraman, President of India, hereby refer the following question to the Supreme Court of India for consideration and report thereon, namely:
(2) (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of Section 5(2) of the Act; and
(ii) Whether the Order of the Tribunal is require to be published by the Central Government in order to make it effective;
(3) Whether a Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute.”
To appreciate the significance of the questions referred and our answers to hem, it is necessary to understand the factual background which has led to the Reference.
The river Cauvery is a inter-State river and is one of the major rivers of the Southern Peninsula. The basin area of the river and its tributaries has substantial spread-over within the territories of the two States, namely, Karnataka and Tamil Nudu, Karnataka being the upper riparian State and Tamil Nadu being the lower riparian State. The other areas which are the beneficiaries of the river water are the territories comprised in the State of Kerala and in the Union Territory of Pondicherry. The total length of the river from its head to its outflow into the Bay of Bengal is about 802 kms. It travels about 381 kms. in Southern-Easternly direction before it reaches the border of Karnataka and Tamil Nadu. It also constitutes boundary between the said two States to an extent about 64 kms. and then traverses a distance of about 357 kms. in Tamil Nadu before joining the sea.
There were two agreements of 1892 and 1924 for sharing the water of the river between the areas which are predominantly today comprised in the State of Karnataka and Tamil Nadu, and which were at the time of the agreements comprised in the then Presidency of Madras on the one hand and the State of Mysore on the other. The last agreement expired in 1974. The river presently covers three States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Pondicherry. The present State of Tamil Nadu has an area of about 43,868 sq. kms. of the Cauvery River basin, reducing the basin area which at the time of the agreement was about 49,136 sq.kms. As against this the basin area of the said river which was about 28,887 sq. kms. in the State of Mysore has increased to about 34, 273 sq. kms. in the present State of Karnataka.
The contributions made to the flows of the Cauvery River by Karnataka, Tamil Nadu and Kerala, according to the State of Karnataka is 425 TMC, 252 TMC and 113 TMC respectively together amounting to 790 TMC. According to the State of Tamil Nadu, the contributions of the three States respectively are 392 TMC, 222 TMC and 126 TMC together amounting to 740 TMC. The Study Team appointed by the Central Government in 1974 worked out the appropriations of the respective States as follows: Karnataka – 177 TMC, Tamil Nadu including Pondicherry – 489 TMC and Kerala – 5 TMC.
In 1956 the Parliament enacted the river Boards Act, 1956 for the purpose of regulation and development of inter-State rivers and river valleys 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 Government for reference of the dispute between the two States, viz. Tamil Nadu and Karnataka 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 under Article 131 of the Constitution being Suit No. 1 of 1971 seeking a direction to the Union Government to constitute a Tribunal and to refer the dispute to it. In the said suit, Tamil Nadu applied for an interim order to restrain the State 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 going on in the meanwhile, resulted in the constitution of a Fact Finding Committee in Jun 1972 which was set up to ascertain facts, amongst others, as to the availability of water resources, the extent of utilization 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.
The Fact Finding Committee submitted its Reports in December, 1972, and August 1973. A Central Study Team headed by Shri CC Patel, then Addl. 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 basin. The recommendation of the Study Team on improvement and modernization 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 command 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.
Further negotiations resulted in what is known as “the 1976 Understanding”. This Understanding envisaged the apportionment of the surplus water in the ratio of 30: 53: 17 amongst 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 Karnataka, 4 TMC to Tamil Nadu and 34 TMC to Kerala.
It appears that in spite of the information gathered through the Fact 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 32 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 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 Karnataka. 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. It the said letter, Tamil Nadu primarily made a grievance against the construction of works in the Karnataka area and the appropriation of water upstream so as to prejudice the interests downstream in the State of Tamil Nadu. It also sought the implementation of the agreements of 1892 and 1924 which had expired in 1974.
At the hearing of the Writ Petition filed by the Tamil Nadu Ryots 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 (reported in AIR 1990 SC 1316) 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 pursuance of the directions given by this Court, the Union Government by its 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.