# [1991] Supp. 2 S.C.R. 497

- **Citation:** [1991] Supp. 2 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 1991-11-22
- **Bench:** Ranganath Misra, K.N.Singh, A.M. Ahmadi, Kuldip Singh, P.B. Saw Ant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1991-supp-2-s-c-r-497-11449
- **Pages:** 70

## Headnote

Constitution of India, 195 0:
A
B
'
Articles 131 and 262-0riginal Jurisdiction of Supreme Court-lnterState rive~ water dispute-Adjudication of-Excluded from pwview of q
Court and vested in Water Ttibunal under the Inter-State Water Disputes
Act, 1956-Question of grant of interim relief-Whether could he agitated before Court.
Article 143-Advisory Jurisdiction-Whether Court can review its ·
opinion-Whether I',-esident can refer a question of law already decided
D,
by the Court-Advisory opinion on Presidential Reference-Nature and
effect of
Articles 245,246,248,262, Seventh Schedule, List I-Entries 56 and
97, List //--Entries 14, 17 and 18-Inter-State river water--Karnataka
Cauve1y Basin Irrigation Protection Ordinance, 1991/Act No. 2 7 of E
1991--Constitutional validity of-Legislative competence of State
Legislature-Whether denuded by Parliamentar)' legislation-Whether State
Legislature can change the law declared by Court-Whether can set aside
decision of inter-parties and affect their rights and liabilities alone-Whether
Inter-State Disj,·utes Act P.nacted under Article 262 or·Entry 56--Distinction inter se between Article 262, Entry 56 of List I and Entry 17 of List ·· ~
II-Executive Order or legislative enactment of State Legislature inte1fer-, :
ing with adjudicatory process of Water Tribunal-Whether dnterference
with judicial power of State.
..,
Karnataka Cauvery Basin Irrigation frotection · Urdinance, 19911
Act No.2 7 of 1991: Constitutional validity of
G
Inter-State Water Disputes Act, 1956:
Sections 5(2) and 6-lnter-State river water dispute-Order of Trii
bunal granting interim relief-Whether a report and decision-Whether
requires to be published in the official gazette.
H
497
498
SUPREME COURT REPORTS
[1991] SUPP. 2 ·S.C.R.
A
Section 1 J~xclusion of jurisdiction of Courts, including Supreme
Court-Question of grant of interim relief-Whether falls outside purview
of the Section.
Practice and Procedure:
B
Supreme Court Rules-Order XL, Rule I-Advisory opinion of Suc
D
E
F
G
H
preme Court under Article 143 of the Constitution-Whether could be
reviewed.
In pursuance of the directions given by this Court in a Writ
Petition filed by the Tamil Nadu Ryots' Association, the Union Government, by its notification dated June 2, 1990, constituted the Cauvery
Water Disputes Tribunal under Section 4 of the Inter-State Water
Disputes Act, 1956 for adjudication of the dispute regarding sharing
of water of the inter-State river Cauvery between the States ofKarnataka,
the upper riparian State, Tamil Nadu, .the lower riparian State, and
Kerala and the Union Territory of Pondicheriry. By another notification of the same date, it also referred the water dispute emerging
from the Letter of Request lodged by the State of Tamil Nadu under
Section 3 of the Inter State Water Disputes Act with the Cenfral
Government on the failure of the negotiations between the partres
in this regard, for reference of the dispute to a Tribunal for adjudication.
In the Letter of Requesnhe State had made a grievance against
construction of works in Karnataka area and the appropriation of
water upstream so as to prejudice the interests downstream in the
State of Tamil Nadu, an(( also ~ought the implementation of the
agreements of 1892 and 1924, which had been entered into when
most of the areas in these States comprised in the then Presidency
of Madras and the then State of Mysore. The last of the agreements
had expired in 1974 and though the understand.ing of 1976 had been
reached, further negotiations in the matter had failed and hence the
State of Tamil Nadu had lodged the aforesaid Letter of Request.
Before the Tribunal, the State of Tamil Nadu submitted an
application for interim relief praying that State of Karnataka 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 concerned
Union Minister and an order restraining Karnat

## Text

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IN THE MATTER OF :
CAUVERY .WATER DISPUTES TRIBUNAL
NOVEMBER 22, 1991
[RANGANATH MISRA, CJ., K.N.SINGH, A.M. AHMADI,
KULDIP SINGH AND P.B. SAW ANT, JJ.]
Constitution of India, 195 0:
A
B
'
Articles 131 and 262-0riginal Jurisdiction of Supreme Court-lnterState rive~ water dispute-Adjudication of-Excluded from pwview of q
Court and vested in Water Ttibunal under the Inter-State Water Disputes
Act, 1956-Question of grant of interim relief-Whether could he agitated before Court.
Article 143-Advisory Jurisdiction-Whether Court can review its ·
opinion-Whether I',-esident can refer a question of law already decided
D,
by the Court-Advisory opinion on Presidential Reference-Nature and
effect of
Articles 245,246,248,262, Seventh Schedule, List I-Entries 56 and
97, List //--Entries 14, 17 and 18-Inter-State river water--Karnataka
Cauve1y Basin Irrigation Protection Ordinance, 1991/Act No. 2 7 of E
1991--Constitutional validity of-Legislative competence of State
Legislature-Whether denuded by Parliamentar)' legislation-Whether State
Legislature can change the law declared by Court-Whether can set aside
decision of inter-parties and affect their rights and liabilities alone-Whether
Inter-State Disj,·utes Act P.nacted under Article 262 or·Entry 56--Distinction inter se between Article 262, Entry 56 of List I and Entry 17 of List ·· ~
II-Executive Order or legislative enactment of State Legislature inte1fer-, :
ing with adjudicatory process of Water Tribunal-Whether dnterference
with judicial power of State.
..,
Karnataka Cauvery Basin Irrigation frotection · Urdinance, 19911
Act No.2 7 of 1991: Constitutional validity of
G
Inter-State Water Disputes Act, 1956:
Sections 5(2) and 6-lnter-State river water dispute-Order of Trii
bunal granting interim relief-Whether a report and decision-Whether
requires to be published in the official gazette.
H
497
498
SUPREME COURT REPORTS
[1991] SUPP. 2 ·S.C.R.
A
Section 1 J~xclusion of jurisdiction of Courts, including Supreme
Court-Question of grant of interim relief-Whether falls outside purview
of the Section.
Practice and Procedure:
B
Supreme Court Rules-Order XL, Rule I-Advisory opinion of Suc
D
E
F
G
H
preme Court under Article 143 of the Constitution-Whether could be
reviewed.
In pursuance of the directions given by this Court in a Writ
Petition filed by the Tamil Nadu Ryots' Association, the Union Government, by its notification dated June 2, 1990, constituted the Cauvery
Water Disputes Tribunal under Section 4 of the Inter-State Water
Disputes Act, 1956 for adjudication of the dispute regarding sharing
of water of the inter-State river Cauvery between the States ofKarnataka,
the upper riparian State, Tamil Nadu, .the lower riparian State, and
Kerala and the Union Territory of Pondicheriry. By another notification of the same date, it also referred the water dispute emerging
from the Letter of Request lodged by the State of Tamil Nadu under
Section 3 of the Inter State Water Disputes Act with the Cenfral
Government on the failure of the negotiations between the partres
in this regard, for reference of the dispute to a Tribunal for adjudication.
In the Letter of Requesnhe State had made a grievance against
construction of works in Karnataka area and the appropriation of
water upstream so as to prejudice the interests downstream in the
State of Tamil Nadu, an(( also ~ought the implementation of the
agreements of 1892 and 1924, which had been entered into when
most of the areas in these States comprised in the then Presidency
of Madras and the then State of Mysore. The last of the agreements
had expired in 1974 and though the understand.ing of 1976 had been
reached, further negotiations in the matter had failed and hence the
State of Tamil Nadu had lodged the aforesaid Letter of Request.
Before the Tribunal, the State of Tamil Nadu submitted an
application for interim relief praying that State of Karnataka 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 concerned
Union Minister and an order restraining Karnataka from undertak-
'
" '
:'---
CAU\TERY WATER DISPUTES TRIBUNAL
499
ing any ~ew projects, dams, reservoirs, canals and/or from proceedA
ing further with the construction of those already commenced in the
Cauvery basin. The Union Territory of Pondicherry also sought a
direction both to Karnataka and tamil Nadu to release the water
already agreed to during the months of September to March.
Meanwhile, Tamil Nadu filed 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.
·
Besides contesting the application on merits, both Karnataka
and Kerala raised a preliminary objection that the Tribunal constituted under the Act had a limited jurisdiction, and had no inherent
powers as an ordinary Civil Court has, and there was no provision
of law which authorised or conferred jurisdiction on the Tribunal to
grant any interim relief. The Tribunal held that since the question
of gran.ting interim relief was not referred to it, the applications for
interim relief were not maintainable.
On appeal by the State of Tamil Nadu and the Union Territory
of Pondicherry, this Court held that reliefs prayed fo~ in the applications for interim relief and directions, were covered in the reference and fell within the purview of the dispute referred to it by the
Central Government under Section 5 of the Inter-State Water Disputes Act. Accordingly, the Court directed the Tribunal to decide
_!~e applications for interim relief and directions on merits.
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Rejecting tht objections once again raised by the State of
Karnataka, as regards the maintainability of the applications for
interim relief, the Tribunal passed an_ order directing the State of F
Karnataka, to ensure that 205 TMC water was available in Tamil
Nadu's Mettur reservoir every year. Tamil Nadu was also directed
to deliver to Pondicherry 6 TMC water. The Tribunal also directed
Karnataka not to increase its area under irrigation by the waters of
Cauvery, beyond the existing area. The order was to remain operative till the final adjudication of the dispute referred to it.
The Tribunal's order thus gave rise to the issuance of the
Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 by
the State of Karnataka nullifying the Tribunal's order. The ordiG
nance was· subsequently replaced by Act No. 27of1991.
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SUPREME COURT REPORTS
(1991] SUPP. 2 S.C.R.
A
The State of Karnataka also instituted a suit under Article 131
agafnst 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.
Under these circumstances, the President of India made a RefB
erence to this Court under Article 143(1) of the Constitution seeking advisory opinion on: (a) whether the Ordinance and the provisions thereof were in· accordance with the provisions of the Constitution, (b) whether the Tribunal's order constituted a report and a
decision within the meaning of Section 5(2) of the Inter-State Water
Disputes Act, and whether the same was required to be published by
C
the Government of India in order to make it effective, and {c) whether
a Water Disputes Tribunal constituted under the Inter-State Water
Disputes Act was competent to grant any relief to the parties to the
dispute.
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It was contended on behalf of the State of Karnataka that the
legislation clearly fell within the competence of the State Legisla-·
ture under Entry 17 as well as Entries 14 and 18 of List II in the
Seventh Schedule of the Constitution and the State Legislature had
every right to legislate on the subject and this legislative power was
subject only to Entry 56 of List I which, however, did not denude
the States of the power to legislate under Entry 17, and, in the
absence of the constitution of a River Board for CaL1very, as envis ·
aged under Entry 56, the State retained full legislative power to
make laws as if Entry 17 had remained untouched; that the executive power of the Union under Article 73 could not extend to any
State with respect to matters on which the State alone could 'legislate, in view of the field having been covered by Article 162 of the
Constitution; that since the Inter-State River Disputes Act enacted
under Article 262 of the Constitution did not attract any Entry in
List I, it was 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 did not; therefore,
step on the toe of Entry 17, that the Ordinance, which became Act
subsequently, only sought 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, and, therefore, the legislation
was clearly within the scope of the State's power to legislate and
was intra vires the Constitution. A fortiori, the power to legislate
conferred on the State Legislature by Entries 14, 17 and 18 of List
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CAlNERY WATER DISPUTES TRIBUNAL
501
II, could not be inhibited by an interim order of the Tribunal, since A
the scheme of the Act envisaged only one final report or decision of
tl!e Tribunal under section 5(2) which would have to be gazetted
under section 6 thereof, and therefore, it was open to the Karnataka
Legislature to make a law ignoring or overriding the interim order
of the Tribunal; that the scheme of the Act did not envisage the
making of an interim order by the Tribunal; once a water dispute
B
was referred to the Tribunal, it 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, and the Central Government must publish this decision in the official gazette to make it final and binding on the parties to the dispute, and since the interim order was not preceded by c
such an investigation, the said order could not be described as 'a
decision' under section 5(2) of the Act, and consequently, the Ceotral Government was under no obligation to publish the interim
order, that the words 'any matter appearing to be connected with
or relevant to water dispute' employed in section 5(1) of the Act did .
not contemplate reference of an interim relief matter, nor could the
D
same empower the Tribunal to make an interim order pendente lite,
and, therefore, having regard to the purpose, scope and intendment
of the Act, the Tribunlll constituted thereunder had 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 could override any executive or legislaE
tive action taken by the State, and since the allocation of flow of
waters between the concerned States was generally based on the
principle of 'equitable apportionment', it was incumbent on the Tribunal to investigate the facts and all relevant materials before deciding on the shares of the concerned States which was not possible
at the interim stage and hence the legislature had advisedly not F
conferred any power on the Tribunal to make an interim order
affecting the existing rights of the concerned parties, and that the
President could refer any question of law under Article 143 and
therefore, also ask the Supreme Court to reconsider anv of its decisions.
G
In its written statement, the State of Kerala, by and large,
supported the stand of the State of Kerala. However, subsequently
it was submitted that since neither the scheme of the Act conferred
any power on the Tribunal to make an interim order nor the scope
of Article 262 read with the scheme of Act contemplated making of
a Reference in that regard, the only remedy available to a State H
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502
SUPREME COURT REPORTS
(1991) SUPP. 2 S.C.R.
which apprehended any action by the upper riparian State likely to
adversely affect the rights of its people, was to move the Supreme
Court under Article 131 of the Constitution, notwithstanding the
provisions of Article 262 and section 11 of the Act; and accordingly,
this Court's view that there was a Reference to the Tribunal for
grant of interim relief was not consistent with the true meaning and
scope of Article 262 and the provisions of the Act and this Court
should not feel bound by it.
The State of Tamil Nadu contended that ordinarily a dispute
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 and in so far as the
dispute involved any question whether of law or fact on which the
existence or extent of a legal r!ght depended, that the Tribunal was
required to perform a purely judicial function which, but for Article 2-62 and section 11 of the Inter-State Water Disputes Act, would
have b~erformed by a court of law, that since tt1e Tribunal was
a substitute for the Supreme Court, it was reasonable to infer that
all the powers exercised by the Supreme Court under Article 131
could be exercised by the Tribunal while adjudicating a water dispute and, therefore, the ancillary and incidental power to grant
interim relief inhered in such a Tribunal without the need for an
express provision or any specific reference to it in that behalf; that
apart, the decision of this Court dated 26th April, 1991 that the
reference to the Tribunal included the question of grant of interim
relief operated as res judicata and was binding on the contesting
parties regardless ,of the view that this Court might take on the
generality of the question referred for decision; if the question of
granting of interim relief formed part of the Referenfe, the Tribunal was duty bound to decide the same and even otherwise, it had
inherent jurisdiction to grant interim relief, whether or not the
question regarding grant of interim relief was specifically referred,
and therefore, its decision would c-onstitute a report under section
5(2) of the Act and was liable to be published in the official Gazette
as required by section 6; that if there was any ambiguity in the
interim order the same could be taken care of under section 5(3) of,
the Act; that the Ordinance in question was ultra 11ires the Constitu- '
tion for diverse reasons; the real object and purpose was to unilat.:.
erally nullify the Tribunal's interim order after having failed in the
first round of litigation; the State of Karnataka had no right to
unilaterally decide the quantum of water it would appropriate or
the extent to which it would diminish the flow of Cauvery waters to
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....
•
CAUVERY WATER DISPUTES TRIBUNAL
503
the State of Tamil Nadu and thereby. deny to the people of Tamil
A
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 could, by the use of its legislative power
arrogate unto itself the judicial function of equitable apportionment
and decide for itself the quantum of water it would use from the
inter-State river regardless of the prejudice it would cause to the B
other State by its unilateral action; such a power could not be read
in Entry 17 as it would be, destructive of the principle that such
water disputes were justiciable and must be left for adjudication by
an independent and impartial special forum to which it was referred, namely, the Tribunal constituted for resolving the dispute,
and not by unilateral executive or legislative interfer~ce, an~, therefore,
C
the object of the legislation not being bona fide, the same could not
be allowed to stand as it had the effect of overruling a judicial order
·· passed by a Tribunal specially appointed to adjudicate on the water
dispute between the parties thereto; it sought to override or neutralize the law enacted by Parliament in exercise of power conferred by Article 262 ~and not Article 246 read with the relevant D
entryin the Seventh Schedule) of the Constitution; a State Legislature could 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 dQne under a C~ntral law; it had extra-territorial operation, in that, it directly impinged on the rights of the people of Tamil Nadu to the use ,of E
Cauvery waters; it was also contrary to the Rule of Law, and a
power not comprehended even by Article 262 could not be read into
the legislative power of the State for. it would pervert the basic
concept of justice; and was also violative of the fundamental rights
of the inhabitants of Tamil Nadu guaranteed by Articles 14 and 21
of the Constitution, in that, the action of Karnataka was wholly
F
arbitrary and in total disregard of the right to life of those inhabitants in Tamil Nadu who survived on Cauvery waters; it was further
contended that in a civilisc<!_society governed by the Rule of Law, a
party to a 'lis' -water dispute- could not be allowed to arrogat~ to
itself the right to decide on the dispute or to nullify an interim
order made by a Tribunal in obedience to the decision of the apex · G
court, by abusing the legislative power under Entry 17 under which
the legislation purported to be; moreover, the jurisdiction of tliis
Court under Article 143 of the Constitution was discretionary and
this Court should refrain from answering a Reference which was in
general terms without background facts and was likely to entail a
roving inquiry which may ultimately prove academic only; secondly,
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SUPREME COURT REPORTS
[1991] SUPP. 2 S.C.R.
the State of Karnataka had immediately after the interim order
instituted a suit in this. Court in which it had prayed for a declaration that the interim order of the Tribunal dated 25th June, 1991
was without jurisdiction, null and void, and for setting aside the
said order; while on the one hand, the decision of this Court had
become final and was res judicata between the parties thereto, on
the other hand, ithe State of Karnataka was raking up the same
question of jurisdiction before this Court in a substantive suit with
a view to over-reaching this Court's earlier order; the Presidential
Reference in terms referred to disputes and differences having arisen
out of the Tribunal's interim order which was said to have given
rise to a public controversy likely to result in undesirable consequences; 'such matters could be effectively countel'"ed by the concerned Government and did not call for a Presidential Refe~ence; if
there was any doubt or difficulty in the implementation of the order
in question, recourse could always be had to section 5(3) of the Act
and hence,' this Court should refuse to answer the Reference.
The U.ition Territory of Pondicherry, contended that the promulgation of the Ordinance (now Act) was intende~ to fur~'1er pr~
t.ract the long standing water dispute which came to '1e referr~d tp
the Tribunal only after this Court issued a mand~~u~ ~!1 th?t behalf
and was likely to prejudicially ·affect the interest Mme State as well
as the farmers and other inhabitants who utilised th\? water from
E
rh'er Cauvery; that the said legislation was unconstitutional and
was a piece of colourable legislation, that in the case of flowing
water the riparian States· had no ownership or proprietary right
therein except in the usufruct thereof and, therefore, the power to
legislate therein under Entry 17 of List II could extend to only the
usufructuary right subject to the right of a riparian State to get the
F
customary quantity of water; that the Ordinance was also yoid for
re·pugnancy, being in conflict with the Central legislation, and also
violative of Article 21 of the Constitution as it was intended to
diminish the supply of water to Tamil Nadu and Pondicherry, which
was also against the spirit of Articles 38 and 39 of the Constitution,
G
that sii1t"e the water dispute referred to the Tribunal comprised the
issul' rt.>garding the grant of interim relief, as held by this Court, the
interim order made by the Tribunal cpnstituted a report within the
meaning of section 5(2) of the Act and, consequently, the Central
Government was obliged to publish it, as required by section 6 of
the Act; and when so published it would operate as a dccisit>n i11
rem: hut even without put:lication it was binding on Karnataka as a
dcrhi11n in jwrs01w111, since the jurisdiction of all courts including
"
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CAUVERY WATER DISPUTES TRIBUNAL
505
'
the Supreme Court was taken away by virtue· of section 11 of the
A
Act read with Article 262(2) of the Constitution, and the Tribunal
had all attributes of a Court; it was required to discharge the judi- .
cial function of adjudicating a water dispute between two or more
States and must be deemed to possess the inherent incidental and
ancillary power to grant interim relief which inhered in all such·
judicial bodies, and absence of an express provision in that behalf B
did not detract from the view that such power inhered in a Tribunal.
Six intervention applications were also filed by· different persons and bodies from Karnataka, including the Advocate General of
the State in support of the case of Karnataka.
C
1
An. intervention application raising the contentions similar to
those of State of Tamil Nadu was also filed by the Tamil Nadu
Ryots' Association which had preferred the original Writ Petition
on which a mandate to constitute the Tribunal was given.
Answering the Reference, this Court,
HELD :
1.1 The Karnataka Cauvery Basin Irrigation Protection Ordinance 1991 promulgated by Governor of Karnataka on
25th July, 1991 (su1?sequently enacted by the State Legislature as
[)
Act No. 27of1991) is beyond the legislative competence of the State
E
and, is therefore, ultra vires the Constitution. (565 E]
1.2 The object of the provisions of the Ordinance is obvious
coming close on the Order of the Tribunal and in the context of the
stand taken by the State of Karnataka that the Tribunal has no
pow·er or jurisdiction to pass any interim relief, it is to override the
F
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. The other
effect of the Ordinan'ce is to reserve to the State of Karnataka
exclusively the right t? appropriate as much of the water of river
Cauvery and its tributaries as it deems requisite and in a manner
G
and at periods it deems fit and proper, although pending final adjudication by the Tribunal. (546 F-G]
1.3 The Ordinance affects the jurisdiction of the Tribunal ap~
pointed under the Central Act, viz., the Inter-State Water Disputes
Act, which has been made under Article 262 of the Constitution. H
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506
SUPREME COURT REPORTS
(1991] SUPP. 2 S.C.R.
The State of K~rnataka has 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.
The State has 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 consequences of such action on the lower riparian States, that it has
superior rights over the said waters and it can deal with them in
any manner, and the lower riparian States have no equitable rights
and that it is th~ sole judge as to the share of the other riparian
States in the said waters. Moreover, it has assumed the role of a
judge in its own cause. [552 C, F-G]
1.4 Apart from the fact that the Ordinance directly nullifies
the decision of the Tribunal, it also challenges the decision 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 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 this 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 said enactment is
made, but being also in conflict with the judicial power of the State.
[552 H, 553 A)
1.5 The legislature can change the basis on which a decision is
given by the Court and thus change tlie law in general, which will
affect a class of persons and events at large but it cannot 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. [554 H, 555 A)
Municipal Corporation of the City of Ahmedabad etc. v. New Shorock
Spg. & Wvg. Co., Ltd. etc. [1971) 1 SCR 288; Madan Mohan Pathak v.
Union of India & Ors. etc., [1978] 3 SCR 334 and P.Sambamurthy & Ors.
etc. etc. v. State of Andhra Pradesh & Anr., (1987) 1 SCR 879, referred
to.
1.6 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 Ordinance in question seeks directly to
CAtNERY WATER DISPUTES TRIBUNAL
507
nullify the order of the Tribunal, it impinges upon the judicial power
of the State. [555 C-D]
1.7 Further, admittedly, 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, and is
thus beyond the legislative competence of the State and is ultra vires
the provisions of Article 245(1) of the Constitution. [555 E]
1.8 The Ordinance is also agains.t 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. If the
power of a ~tate to issue such an Ordinance i~ upheld it will lead to
the break down of the Constitutional mechanism and affect the unity
and integrity of the nation. [SSS F-G]
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2.1 Under Article 131, 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 the existence and extent of which 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
Artiele 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 Inter-State Water Disputes Act, 1956, has
in terms provided for such exclusion of the jurisdiction of the Courts.
Thus, Section 11 of the Act read with Article 262 excludes original
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. [544 H, 545
·A-BJ
.
2.2 The Inter-State Water Disputes Act, 1956 has been enacted
only under Article 262 of the Constitution, and not under Entry 56,
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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. [550 G]
.
2;3 Entry 56 speaks of regulation and development of interState rivers and river valleys and does not relate to the disputes
between the riparian States with regard to the s·ame and adjudication thereof. Even assuming that the .expression "regulation and
development" would in its~width, include resolution of disputes arising out therefrom and a provision for adjudicating them, the Act
does not make the declaration required under 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. Further no Entry in either of the 'three Lists refers specifically to the adjudication of disputes with regard to inter-State
river waters, the reason being that Article 262 of the Constitution
specifically provides for such adjudication. [547 A-CJ
2.4 An analysis of Article 262 shows that an exclusive power is
given to the Parliament to enact a law providing for the adjudication of disputes or complaints relating to "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 exterit, and the manner, of the use of the said waters, and·the
power to give directions in respect of the same. [508 F-G]
2.5 The language of the Article has, further to be distinguished
from that of Entry 56 and Entry 17. Whereas Article 262(1) speaks
of atljudication of any dispute or complaint and that too with respect to the use, distribution or control of the waters of or in 1any
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 rivers
and river valleys. 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
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inter-State river as a whole and State can only deal with water
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within its territory. [547 H, 548 A-CJ
2.6 The Inter-State Disputes Act, 1956 is made pursuant fo. the
pro:visions of Article ·262 specifically for adj udfration 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, and is
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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 C
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 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
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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, distributiOn or control of such waters. Any such act on
its part will be extra-territorial in nature and, therefore, beyond its
competence. [549 C-F]
2. 7 It is not correct to say that it is Entry 97 of the Union List,
which deals with the topic of use, distribution and control of the
waters of an inter-State river. This is so bec~use the expression
"regulation and deveiopment of inter-State rivers and river valleys"
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in Entry 56 would include the use, distribution and allocation of the
waters of the inter-State rivers and river valleys between different F :
riparian States. Otherwise, the intention of the Constituent Assembly to' provide for the Union to take over the regulation and development under its co'ntrol makes no sense and serves no purpose.
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
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and allocation -of the waters oflhe inter-State rivers and river valleys, indicating .that t~e expression "regulation and development" in
Entry 56 has legislat.ively also been construed to include the use,
distribution or allocation of the waters of the inter-State rivers and
river valleys between riparian States. To contain the operation of
Entry 17 -to the waters of an inter-State river and river valleys
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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 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 interstate river and river valley from the "use, distribution and allocation" of its waters, it is neither warrante~ nor necessary to do so.
[549 G, 550, B-F)
2.8 Though the waters of an inter-State river pass through the
territories of the riparian States such waters cannot be said to be
located in any one State. They. are in a state of flow and no State
can claim exclusive ownership of such waters so as to deprive the -
other States of their equitable share. Hence in respect of .such waters, no State can effectively legislate for the use of such waters
since its legislative power does no~ extend beyond its territories. It
is further an acknowledged priPciple of distribution and allocation
of waters between the riparian States that the same has 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. (551 H, 552
A-R)
3.1 The order of the Tribunal dated 25th June, 1991 granting
interim relief constitutes a report and a decision within the meaning
of Section 5(2) of the Inter-State Water Disputes Act, 1956. The said
order is, therefore, required to be published by the Centr.al Government in the Official Gazette under Section 6 of the Act in order to
make it effective. [565 F-G]
3.2 Sub-section (1) of Section S expressly empowers the Central Government to refer to the Tribunal not only the main water
dispute, but any matter appearing to be connected with or relevant
to it. A request for an iitterim relief, whether in the nature of mandatory direction or prohibitory order, whether for the maintenance
of status quo or for the grant of urgent relief or to prevent the final
relief being rendered infructuous, would be a matter connected with
or relevant to the main dispute. In fact, this Court, by its decision of
April 26, 1991, has in terms held that the request of the St~te of
Tamil Nadu for granting interim relief had been referred by the
Central Government to the Tribunal and directed the Tribunal to
CAUVERY WATER DISPUTES TRIBUNAL
511
consider the request on merits, the same being a part of the ReferA
ence. Hence the order of the Tribunal will be a report and decision
within the meaning of Section 5(2) and would have, therefore, to be
published under Section 6 of the Act in order to make it effective.
[S62 A-CJ
3.3
It is not correct to say that since the Order does not say B
that it is a report and decision it is not so under Section 5(2) of the
Act. Either the Order is such a report and decision because of its
contents or not so at all. If the contents do not show that it is such a
report, it will not become one because the Order states so. The
contents of the order clearly show that it is a report and a decision
within the meaning of Section 5(2). [563 BJ
C
3.4 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
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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 E
power to grant interim relief when Reference for such relief is made.
l{ence, 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 F
pass interim orders on such material as according to it is appropriate to the nature of the interim order. [563 E-H]
3.5 The interim orders passed or reliefs granted by the 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 Sections 5(2) and 6
of tl>e Act. (564 A]
3.6 In the instant case, Order of the 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
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so as to ensure that 205 TMC of water is available in Tamil Nadu's H
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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 Karaikal region of the Union Territory of Pondicherry. In
addit.ion, 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.