2. The Cauvery Water Disputes Tribunal (hereinafter referred to as the “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 diierected Tamil Nadu to submit a proper application. Thereupon Tamil Nadu and the Union Territory of Pondicherry submitted two separate applications for interim reliefs being CMP Nos. 4 and 5 of 1990.
The interim relief claimed by Tamil Nadu was that Karnataka be directed not to impound or utilize water of Cauvery river beyond the extent impounded or utilized 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 Karnataka from under taking any new projects, dams reservoirs, canals and/or from proceeding further with the construction of projects, dams, reservoirs canals etc. in the Cauvery basin.
In its application for interim relief Pondicherry sought a direction from the Tribunal both to Karnataka and Tamil Nadu to release the water already agreed to, i.e., 9.355 TMC during the months of September to 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 t States of Karnataka and Kerala 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 November, 1990, Karnataka and Kerala also submitted their replies to the applications 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.
It 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 application being CMP No. 9 of 1990 as an urgent petition to direct Karnataka as an emergent measure, to release at least 20 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 Tamil Nadu State. Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary objection to the jurisdiction of the Tribunal to entertain the said application and to grant any interim relief. The preliminary objection was that the Tribunal constituted under the Act, had a limited jurisdiction. It had no inherent powers as an ordinary Civil Court has, and there was no provision of law which authorized or conferred jurisdiction on the Tribunal to grant any interim relief. The tribunal heard the parties both on the preliminary objection as well as on merits, and by its Order of January 5, 1991, had, among other 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 authorized to decide only the ‘water dispute’ or disputes which have been referred to it. If the Central Government 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 Government to refer also the said matter as a dispute to the Tribunal constituted under Section 4 of the Act. Further, no water dispute can be referred by the Central Government unless the 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 bee sought for even if the same are connected with or relevant to the water dispute already referred, cannot be considered because the disputes in respect of the said matters have not been referred by the Central 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 formed the opinion that it shall be referred to the Tribunal. In case the petitioners of CMPs. 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 Government 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 Government to the Tribunal. In case such a dispute had been referred then it would have been open to the Tribunal to decide the said dispute which decision would then be final and binding on the parties.
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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 Karnataka State in constructing 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 control of Cauvery waters. No interim dispute in regard to the release of waters by the Karnataka Government from year to year subsequent to the 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 same is specifically referred to the Tribunal.
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The observations made by the Hon’ble Supreme Court in Union of India v. Paras Laminates (P) Ltd. (1990) 4 SCC 453 : (AIR 1991 SC 696) – supplied] were in relation to the Appellate Tribunal constituted under the Customs Act, 1962. It was held that Tribunal functions as a court within the limits of its jurisdiction. Its area of jurisdiction is defined but within the bounds of its jurisdiction it has all the powers expressly and impliedly granted. The Supreme Court while discussing the extent of the power of the 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 reasonable necessary to make the grant effective. The import of the decision of the Hon’ble Supreme Court is that the Tribunal will have incidental and ancillary powers while exercising 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 order 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 respect 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 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 incidental 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.
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The second submission raised by the learned counsel for Tamil Nadu namely to the effect that Tribunal alone could exercise jurisdiction in respect of a water dispute by virtue of Art. 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 Tribunal. The Central Government if it finds that the dispute is connected with or related to the water disputes 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.
3. Being aggrieved, the State of Tamil Nadu approached this Hon’ble Court by means of special leave petitions under Art. 136 of the Constitution against the orders passed both in the original application for interim relief being CPM 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 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 1991respectively were heard together and disposed of by this Court by its judgment dated April 26, 1991 (reported in 1991 AIR SCW 1286). While allowing the appeals this Court held as follows (paras 15 and 21):
“Thus, we hold that the 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 interim application till it finally decides the dispute referred to it.
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A perusal of the order of reference dated 2-6-90 as already extracted above clearly goes to show that the Central Government had referred the water disputes regarding the inter-State river Cauvery and the river valley thereof, emerging from letter dated 6th July, 1986 from the Government of Tamil Nadu. 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 paragraph contained in the aforesaid letter dated 6-7-86.”
This Court then quoted the said paragraph from the said letter of 6-7-1986 which reads as follows:
“REQUEST FOR EXPEDITIOUS ACTION IN REFERRING THE DISPUTE TO TRIBUNAL:
From 1974-74 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 running around for a 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 of Karnataka have badly violated the inter-State agreements and caused irreparable harm to the age old irrigation in this State. Year after year, the realization at Mettur is falling fast and thousands of acres in our ayacut in the basis are forced to remain fallow. The bulk of the existing ayacut in Tamil Nadu concentrated 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 lands are withering and falling for want of adequate wettings at crucial times. We are convinced that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut 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 [1991 AIR SCW 1286, Para 22]:
“The above passage clearly goes to show that the State of Tamil Nadu was claming for an immediate relief as year after year, the realization of Mettur was falling fact and thousands of acres in their ayacut in the basin were forced to remain fallow. It was specifically mentioned that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka 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 no incidental and ancillary powers for granting an interim relief, but it has refused to entertain the C.M.P Nos 4, 5 and 9 on the ground that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circumstances we think it is not necessary for us to decide in this case, the larger question whether the Tribunal constituted under the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become entitled to succeed on the basis of the finding recorded by us in their favour that the reliefs prayed by them in their C.M.Ps. 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 the State of Karnataka that they were agreeable to proceed with the C.M.Ps. 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 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 Tamil Nadu 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 pursuance of these directions, the Tribunal heard the said applications of Tamil Nadu and Pondicherry. It appears that before the Tribunal, objections were again raised on behalf of the State of Karnataka 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 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 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 the 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 distribution of the waters of this inter-State river.
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.................. At this stage it would be neither feasible nor reasonable to determine how to satisfy the needs of each State to the greatest extent possible with a minimum of detriment to others. 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 Nadu or the State of Karnataka is the most beneficial use to which the water could be put to.
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.............We do not propose to examine at this stage the legality or 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 immediate past.
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............. We have already mentioned that at the present stage we would be guided by consideration of balance of convenience and maintenance of the existing utilization so that rights of the parties may be preserved till the final adjudication......”
The Tribunal then directed the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC water is available in Tamil Nadu’s Mettur reservoir in a year from June to May. The Tribunal further directed Karnataka 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 directed to be made good in the subsequent week. The Tribunal also directed Tamil Nadu to deliver to Pondicherry 6 TMC water for its Karaikal 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.
Thereafter, on July 25, 1991 the Governor of Karnataka issued an Ordinance named “the Karnataka Cauvery Basin Irrigation Protection Ordinance, 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 Karnataka dependent on the waters of the Cauvery river and its tributaries.
Whereas the Karnataka Legislative Council is not in Session and the Governor of Karnataka is satisfied that circumstances exist which render it necessary for him to take immediate action, for the protection and preservation of irrigation in the irrigable areas of the Cauvery basin in Karnataka dependent on the water of Cauvery river and its tributaries.
Now, therefore, in exercise of the power conferred under CI. (1) of Art. 213 of Constitution of India, I, Khurshed Alam Khan, Governor of Karnataka, an pleased to promulgate the following Ordinance, namely:
1. Short title, extent and commencement:
(1) This Ordinance may be called the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991.
(2) It extends to the whole of the State of Karnataka.
(3) It shall come into force at once.
2. Definitions: Unless the context other wise requires:
(a) “Cauvery basin” means the basin area of the Cauvery river and its tributaries lying within the territory of the State of Karnataka.
(b) “Irrigable area” means the areas specified in the Schedule.
(c) “Schedule” means the Schedule annexed to this Ordinance.
(d) “Water year” means the year commencing with the 1st of June of a Calendar year and ending with the 31st of May of the next Calendar year.
3. Protection of Irrigation in irrigable area:
(1) It shall be the duty of the State Government of protect, preserve and maintain irrigation from the waters of the Cauvery river and its tributaries in the irrigable area under the various projects specified in the Schedule.
(2) For the purpose of giving effect to sub-sec. (1) the State Government may abstract or cause to be abstracted, during every water year, such quantity of water as it may 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.
4. Overriding effect of the Ordinance:
The provisions of this Ordinance (and of 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 this Ordinance), save and except a final decision under the provisions of sub-sec. (2) of S. 5 read with S.6 of the Inter-State Water Disputes Act, 1956.
5. Power to remove difficulties:
If any difficulty arises in giving effect to the provisions of this Ordinance, the State Government may, by order, as occasion requires, do anything (not inconsistent with the provisions of 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 Official Gazette make rules to carry out the purpose of this 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 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 minor irrigation works.
Hot on the heels of this Ordinance, the State of Karnataka instituted a suit under Art. 131 against the State of Tamil Nadu and others for a declaration that 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 are a verbatim reproduction of the provisions of the Ordinance except that in S. 4 of the Act the words “any Court or” are omitted and S. 7 is added repealing the Ordinance. The omission of the above words excludes this Court’s order dated April 26, 1991 from the overriding effect of the said provision. Reference to the Ordinance hereafter will include reference to the Act also unless the context otherwise requires.
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 Tamil Nadu and the Union Territory of Pondicherry on the one hand and the States of Karnataka and Kerala on the other with the Union of India taking no side on the issues arising out of the Reference. There are also interveners on both sides. The contentions of the parties are summarized 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 contentions, 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 Art. 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 Karnataka 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 judgment 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 contention is that if the question is general in nature, it requires no answer at all.