# STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS

- **Citation:** [2016] 8 S.C.R. 499
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Case number:** Civil Appeal No. 2453 of2007
- **Bench:** Dipak Misra, Amitava Roy, A.M. Khanwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-karnataka-v-state-of-tamil-nadu-ors-31410
- **Pages:** 58

## Headnote

A
B
Constitution of India - Arts. 262(2), 131, 136 - Inter-State
River Water Dispute - Adjudication of - Jurisdiction of Supreme
Court - Order passed by the Cauvery Water Disputes Tribunal on
C
sharing of river water - Challenge to -Appeals by special leave u/
Art. 136 filed by the States of Karnataka, Kerela and Tamil Nadu
before this Court - Plea that Art. 262(2) read with s. 11 ands. 6 of
the 1956 Act bars the jurisdiction of this Courtto adjudicate upon
any water dispute - Held: Appeals by States of Karnataka, Kerela
and Tamil Nadu are maintainable - Supreme Court has jurisdiction D
to hear the appeals - Once a water dispute, as defined u!Art. 262(1)
read with provisions of the 1956 Act is adjudicated by the tribunal,
it loses the nature of dispute - Person aggrieved can always have
his remedy invoking the jurisdiction u/Art. 136 - Founding fathers
did not want the award or the final order passed by the tribunal to
remain immune from challenge - That is neither the express language
E
of Art. 262(1) nor it is impliedly stated - Also, the legislative
intendment of s. 6(2) is clear that the Parliament did not intend to
create any kind of embargo on the jurisdiction of this Court - Section
6 cannot be interpreted in an absolute mechanical manner and the
words "same force as on order or decision" cannot be treated as a
F
decree for the purpose for excluding the jurisdiction of this
Court - Thus, on basis of the exposition of the principles of law
relating to fiction, the intendment of th{! legislature and the ultimate
purpose and effect of the provision, s. 6(2) does not bar the
iurisdiction conferred on this Court u!Art. 136 - Inter-State River
Water Disputes Act, 1956 - ss. 2(c), 6(2), 11.
~
G
Inter-State River Water Disputes Act, 1956 - ss. 11, 2(c),
6(2) - Inter-State River Water Dispute - Issuance of interim order
whereby the State of Karnataka directed to release 2000 cusecs of
water to State of Tamil Nadu, to continue.
499
H
500
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A
Ad.iourning the matter, the Court
B
c
D
E
F
HELD: 1.1 Various Articles occurring in Part III of the
Constitution of India have been bestowed the extended meaning
through iμterpretative process to fructify the constitutional
obligations because the provisions in the Constitution have to
be understood and interpreted keeping in view the social
progress, economic growth of environment of law and the global
development oflaw. Protection offundamental rights as a concept
cannot remain .static. They grow by encompassing a rainbow of
views that advocate new rights that the globe perceives. But the
authority conferred under Article 32 has its limitations when the
lis under Article 262 emerges. It is interesting to note that the
Constitution has not provided machinery for resolution of the
disputes in the Constitution but has empowered the Parliament
to make laws to provide to exclude the power of the Supreme
Court or any other court with regard to jurisdiction in respect of
complaints or disputes that find mention in Article 262(1). The
Inter-State River Water Disputes Act, 1956 bars the exercise of
jurisdiction under Article 32 of the Constitution. In spite of the
same, there is certain scope for exercise of jurisdiction. Article
262 is a ·part of the original Constitution and, therefore, the
question posed is whether the framers of the Constitution have
used the express vehicle of language in this Article so as not to
. bestow any power on the courts including the Supreme Court. ·
[Paras 25, 34) [523-C-F; 531-C]
·
1.2 Section 5 provides for adjudication of water disputes.
Section 11 stipulates that neither the Supreme Court nor any
other Court shall have or exercise jurisdiction in respect of any
water dispute which may be referred to a tribunal under the 1956
Act. The tribunal is constituted when a request is made under
Section 3 from any State Government in respect of any water
dispute. Section 4 of the 1956 Act provides that the Central
G Government shall con

## Text

_Characters 0–39,601 of 135,297. This is a partial read: ask again with offset=39601 for what follows._

[2016] 8 S.C.R. 499
STATE OF KARNATAKA
v.
STATE OF TAMIL NADU & ORS.
(Civil Appeal No. 2453 of2007)
DECEMBER 09, 201_6
[DIPAK MISRA, AMITAVA ROY AND
A.M. KHANWILKAR, JJ.]
A
B
Constitution of India - Arts. 262(2), 131, 136 - Inter-State
River Water Dispute - Adjudication of - Jurisdiction of Supreme
Court - Order passed by the Cauvery Water Disputes Tribunal on
C
sharing of river water - Challenge to -Appeals by special leave u/
Art. 136 filed by the States of Karnataka, Kerela and Tamil Nadu
before this Court - Plea that Art. 262(2) read with s. 11 ands. 6 of
the 1956 Act bars the jurisdiction of this Courtto adjudicate upon
any water dispute - Held: Appeals by States of Karnataka, Kerela
and Tamil Nadu are maintainable - Supreme Court has jurisdiction D
to hear the appeals - Once a water dispute, as defined u!Art. 262(1)
read with provisions of the 1956 Act is adjudicated by the tribunal,
it loses the nature of dispute - Person aggrieved can always have
his remedy invoking the jurisdiction u/Art. 136 - Founding fathers
did not want the award or the final order passed by the tribunal to
remain immune from challenge - That is neither the express language
E
of Art. 262(1) nor it is impliedly stated - Also, the legislative
intendment of s. 6(2) is clear that the Parliament did not intend to
create any kind of embargo on the jurisdiction of this Court - Section
6 cannot be interpreted in an absolute mechanical manner and the
words "same force as on order or decision" cannot be treated as a
F
decree for the purpose for excluding the jurisdiction of this
Court - Thus, on basis of the exposition of the principles of law
relating to fiction, the intendment of th{! legislature and the ultimate
purpose and effect of the provision, s. 6(2) does not bar the
iurisdiction conferred on this Court u!Art. 136 - Inter-State River
Water Disputes Act, 1956 - ss. 2(c), 6(2), 11.
~
G
Inter-State River Water Disputes Act, 1956 - ss. 11, 2(c),
6(2) - Inter-State River Water Dispute - Issuance of interim order
whereby the State of Karnataka directed to release 2000 cusecs of
water to State of Tamil Nadu, to continue.
499
H
500
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A
Ad.iourning the matter, the Court
B
c
D
E
F
HELD: 1.1 Various Articles occurring in Part III of the
Constitution of India have been bestowed the extended meaning
through iμterpretative process to fructify the constitutional
obligations because the provisions in the Constitution have to
be understood and interpreted keeping in view the social
progress, economic growth of environment of law and the global
development oflaw. Protection offundamental rights as a concept
cannot remain .static. They grow by encompassing a rainbow of
views that advocate new rights that the globe perceives. But the
authority conferred under Article 32 has its limitations when the
lis under Article 262 emerges. It is interesting to note that the
Constitution has not provided machinery for resolution of the
disputes in the Constitution but has empowered the Parliament
to make laws to provide to exclude the power of the Supreme
Court or any other court with regard to jurisdiction in respect of
complaints or disputes that find mention in Article 262(1). The
Inter-State River Water Disputes Act, 1956 bars the exercise of
jurisdiction under Article 32 of the Constitution. In spite of the
same, there is certain scope for exercise of jurisdiction. Article
262 is a ·part of the original Constitution and, therefore, the
question posed is whether the framers of the Constitution have
used the express vehicle of language in this Article so as not to
. bestow any power on the courts including the Supreme Court. ·
[Paras 25, 34) [523-C-F; 531-C]
·
1.2 Section 5 provides for adjudication of water disputes.
Section 11 stipulates that neither the Supreme Court nor any
other Court shall have or exercise jurisdiction in respect of any
water dispute which may be referred to a tribunal under the 1956
Act. The tribunal is constituted when a request is made under
Section 3 from any State Government in respect of any water
dispute. Section 4 of the 1956 Act provides that the Central
G Government shall constitute a Water Disputes Tl"ibunal if it is of
the opinion that the water dispute cannot be settled by
negotiations. The 1956 Act is in consonance with Article 262 which
empowers the Parliament to provide that neither the Supreme
Court nor any other court shall exercise jul"isdiction in respect
of any such dispute or complaint but the same has to pertain to
H
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
501
Article 262(1). Thus, the bar on the jurisdiction of this Court has A
to be in accord with the language employed in Article 262(1).
Section 11 bars the jurisdiction of this Court pertaining to original
dispute or complaint. It was submitted by the appellant that dispute
or complaint as mentioned in Article 262 and Section 11 of the
--
"
1956 Act not only covers the dispute before the tribunal but also
B
encompasses any appeal by special leave because it still has the
characteristics of a dispute. On a first blush, the said submission
may look attractive but on a keener scrutiny, it does not deserve
acceptance. The language used in Article 262(1) and Section 11
relate to a water dispute or complaint. It pertains to a dispute or
a complaint at the pre-adjudicatory stage. A complaint by the State C
Government is in a different realm altogether. It is meant to invite
the attention of the Central Government pertaining to the fact
that a water dispute had arisen or is likely to arise and it needs to
be addressed by constituting a tribunal. Once a water dispute is
adjudicated, it is extremely difficult to put it in the compartment D
of "any water dispute". After the adjudication, one of the States
or both the States may have a grievance but a contention cannot
be advanced by them or by the Union oflndia that the controversy
is still at the stage of dispute that has been intended to be covered
either under Article 262(1) of the Constitution or under the
scheme of the 1956 Act and, therefore, the jurisdiction of this
E
Court stands excluded. It has to pertain to the original dispute
or original complaint. [Para 52, 53) [544-G-H; 545-A-F]
1.3 The purpose of referring to the definition of term
'adjudication' is to arrive at the conclusion that once a water
dispute, as defined under Article 262(1) read with provisions of F
the 1956 Act is adjudicated by the tribunal, it loses the nature of
dispute. A person aggrieved can always have his remedy invoking
the jurisdiction under Article 136 of the Constitution of India.
There is no scintilla of doubt that the founding fathers did not
want the award or the final order passed by the tribunal to remain
immune from challenge. That is neither the express language of G
Article 262(1) nor it impliedly so states. Thus, the submission
with regard to maintainability of the appeal by special leave under
Article 136 of the Constitution of India on this score stands
repelled. [Para 66) [551-D-F]
H
502
A
B
c
SUPREME COURT REPORTS
[2016] 8 S.C.R.
1.4 Relying on Section 6(2), which was introduced by way
of Amendment Act 2002 (Act No. 14 of 2002) that came into force
from 6.8.2002, it is submitted that the jurisdiction of this Court is
ousted as it cannot sit over in appeal on its own decree. The said
submission was resisted by the respondent contending that the
said provision, if it is to be interpreted to exclude the jurisdiction
of the Supreme Court of India, it has to be supported by a
constitutional amendment adding at the end of Article 136(2) the
words "or to any determination of any tribunal constituted under
the law made by Parliament under Article 262(2)" and, in such a
situation, in all possibility such an amendment to the Constitution
may be ultra vires affecting the power of judicial review which is
a part of basic feature of the Constitution. Section 6(2) has been
inserted to provide teeth to the decision of the tribunal after its
publication in the official gazette by the Central Government and
this has been done keeping in view the Sarkaria Commission's
D Report on Centre-State relations (1980). [Para 68) (552-A-E)
E
1.5 The Report of the Commission as the language would
suggest, was to make the final decision of the tribunal binding on
both the States and once it is treated as a decree of this Court,
then it has the binding effect. It was suggested to make the award
effectively enforceable. The language employed in Section 6(2)
suggests that the decision of the tribunal shall have the same
force as the order or decree of this Court. There is a distinction
between having the same force as an order or decree of this Court
and passing of a decree by this Court after due adjudication. The
Parliament has intentionally used the words from which it can be
F
construed that a legal fiction is meant to serve the purpose for
which the fiction has been created and not intended to travel
beyond it. The purpose is to have the binding effe~ of the
tribunal's award and the effectiveness of enforceability. Thus, it
has to be narrowly construed regard being had to the purpose it
is meant to serve. [Para 69) [553-A-C)
G
H
1.6 The fundamental rule of interpretation. is the same
whether one construes the provisions of the Constitution or an
Act of Parliament, namely, that the court will have to find out the
expressed intention from the words of the Constitution or the
Act, as the case may be." When the said principles of statutory
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
503
interpretation are applied to understand the legislative A
intenclment of Section 6(2) it is clear as crystal that the Parliament
dl' not intend to create any kind of embargo on the jurisdiction
of this Court. The said provision was inserted to give the binding
effect to the award passed by the tribunal. The fiction has been
created for that limited purpose. Section 11 of the 1956 Act, bars
B
the jurisdiction of the courts and needless to say, that is in
consonance with the language employed in Article 262 of the
Constitution. The Founding Fathers had not conferred the power
on this Court to entertain an original suit or complaint and that is
luminescent from the language employed in Article 131 of the
Constitution and from the series of pronouncements of this Court.
C
Be it clearly stated that Section 6 cannot be interpreted in an
absolute mechanical manner and the words "same force as on
order or decision" cannot_ be treated as a decree for the purpose
for excluding the jurisdiction of this Court. It cannot be a decree
as if this Court has adjudicated the matter and decree is passed.
0
The Parliament has intepded that the same shall be executed or
abided as if it is a decree of this Court. It is to be borne in mind
that a provision should not be interpreted to give a different
colour which has a technical design rather than serving the object
of the legislation. The exposition of the principles of law relating
tfi fiction, the iutendment of the legislature and the ultimate
purpose and effect of the provision compel this court to repel the
submissions raised on behalf of the Union of India that Section
6(2) bars the jurisdiction conferred on this Court under Artie.le
136. Thus, the Civil Appeals are maintainable. [Paras 75, 76, 78)
[555-B-G; 556-CJ
In Re: Cauvery Water Dispute Tribunal 1993 Supp (1)
SCC 96: 1991 (2) Suppl. SCR 497; State of Karnataka
v. State of A.P. and Ors. (2000) 9 SCC 572: 2000 (3)
SCR 301; State of Haryana v. State of Punjab and Am:
(2002) 2 SCC 507: 2002 (1) SCR 227; State of
Himachal Pradesh v. Union of India and Ors. (2011)
13 SCC 344; Tamil Nadu Cauvery Neerppasana
Vilaiporulgal Vivasayigal Na/a Urimai Padhugappu
Sangam v. Union of India and Ors. (1990) 3 SCC
440:1990 (3) SCR 83; Narmada Bachao Ando/an v.
Union of India and Ors. (2000) 10 SCC 664: 2000 (4)
E
F
G
H
504
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2016] 8 S.C.R.
Suppl. SCR 94; Mullaperiyar Environmental Protection
Forum v. Union of India and Ors. (2006) 3 SCC 643:
2006 (2) SCR 740; Atma Linga Reddy & Ors. v. Union
of India and Ors. (2008) 7 SCC 788: 2008 (10) SCR
741; Networking of Rivers, In Re (2012) 4 SCC 51:
2012 (1) SCR 1118; State of Tamil Nadu v. State of
Karnataka and Ors. with Union Territory of Pondicherry
v. State of Karnataka and Ors. (1991) Supp (1) SCC
240: 1991 (2) SCR 501; Rupa Ashok Hurra v. Ashok
Hurra & Am: (2002) 4 SCC 388: 2002 (2) SCR 1006;
Durga Shankar Mehta v. Thakur Raghuraj Singh and
Ors. 1_955 (1) SCR 267; Associated Cement Companies
Ltd v. P.N. Sharma (1965) 2 SCR 366; Jose Da Costa
and Am: v. Bascora Sadasiva Sinai Narcornim and Ors.
(1976) 2 SCC · 917; Arunachalam
v.
P.S.R.
Sadhanantham and Anr: (1979) (2) SCC 297: 1979 (3)
SCR 482; P.S.R. Sadhanantham v. Arunachalam and
Am: (1980) 3 SCC 141; Union Carbide Corpqration
and Ors. v. Union of India and Ors. (1991) 4 SCC
584:1991 (1) Suppl. SCR 251; Prashant Ramachandra
Deshpande v. Maruti Balaram Haibatti (1995) Supp (2)
SCC 539: 1995 (1) SCR 871; Mahendra Saree
Emporium (JI) v. G. V. Srinivasa Murthy (2005) 1 SCC
481: 2004 (3) Suppl. SCR 931; U. Sree 1~ U. Srinivas
(2013) 2 sec 114: 2012 (11) SCR 256; Mathai v.
George and Anr. (2010) 4 SCC 358:2010 (3) SCR 533;
Aneeta Hada v._ Godfather Travels and Tours Private
Limited (2012) 5 sec 661: 2012 (5) SCR 503; L.
Chandra Kumar v. Union of India and Ors. (1997) 3
SCC 261: 1997 (2) SCR 1186; Minerva Mills Ltd. and
Ors. v. Union of India and Ors. (1980) 3 SCC 625:
1981 (1) SCR 206; Kihoto Hollohon v. Zachilhu and
Ors. (1992) 1 SCC 309; M Nagaraj and Ors. v. Union
of India and Ors. (2006) 8 SCC 212: 2006 (7) Suppl.
SCR 336; Nabam Rebia and Bamang Felix v. Dy.
Speaker, Arunaclial Pradesh .Legislative Assembly and
Ors. (2016) 8 SCC 1; P. Sambamurthy and Ors. v. State
Qf A1}_dhra Pradesh and Anr. (1987) 1 SCC 362: 1987
(1) SCR 879; /.R. Coelho (dead) by LRS. v. State of
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
SOS
T.N. (2007) 2 SCC 1: 2007 (1) SCR 706; State of Orissa
v. Government of India and Anr. (2009) 5 SCC 492:
2009 (1) SCR 992; Mathai v. George (2016) 7 SCC
700; Ganga Kumar Srivastava v. State of Bihar (2005)
6 SCC 211; Gujarat State Cooperative Land
Development Bank Ltd. v. P.R. Mankad and Ors.; (1979)
3 SCC 123; Canara Bank and Ors. v. National Thermal
Power Corporation and Anr. (2001) 1 SCC 43: 2000
(5) Suppl. SCR 387; Aneeta Hada v. Godfather Travels
and Tours (2012) 5 SCC 661:2012 (5) SCR 503;
Nandkishore Ganesh Joshi v. Commissioner, Municipal
Corporation of Kalyan and Dombivali and Ors. (2014)
11 SCC 417; Delhi Cloth and General Mills Co. Ltd. v..
State of Rajtisthan (1996) 2 SCC 449: 1996 (1) SCR
518; Chandra Mohan v. State of Uttar Pradesh and
Ors. AIR 1966 SC 1987; State of Uttar Pradesh v. Hari
Ram (2013) 4 SCC 280: 2013 (2) SCR 301 - referred
to.
R. v. Medical Appeal Tribunal ex parte Gilmore (1957)
1 QB 574; Anisminic Ltd. v. Foreign Compensation
Commission (1969) 2 AC 147 - .referred to.
A
B
c
D
Principles of Statutory Interpretation by G.P. Singlt 141h
E
Edn; Principles of Statutory Interpretation by GP. Singh
l21h Eiln p 381; Administrative law by Sir William Wafle
91h Edn; Blacks Law Dictionary 6'h Edn. p 42 - referred
to.
Case Law Reference
F
2000 (3) SCR 301
referred to
Para4
2002 (1) SCR 227
referred to
Para4
(2011) 13 sec 344
referred to
Para4
1990 (3) SCR 83
referred to
Para4
G
2000 (4) Suppl. SCR 94
referred to
Para4
2006 (2) SCR 740
referred to
Para4
2008 (10) SCR 741
referred to
Para4
2012 (1) SCR 1118
referred to
Para4
H
506
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A
1991 (2) SCR 501
referred to
Para4
2002 (2) SCR 1006
referred to
Para5
1955 (1) SCR 267
referred to
Para6
(1965) 2 SCR 366
referred to
Para6
B
(1976) 2 sec 911
referred to
Para6
1979 (3) SCR 482
referred to
Para6
(1980) 3 sec 141
referred to
Para6
1991 (1) Suppl. SCR 251
referred to
Para6
c
1995 (1) SCR 871
referred to
Para6
.
2004 (3) Suppl. SCR 931
referred to
Para6
2012 (11) SCR 256
referred to
Para6
2010 (3) SCR 533
referred to
Para6
D 2012 (5) SCR 503
referred to
Para 7
2013 (2) SCR 301
referred to
Para 7
1997 (2) SCR 1186
referred to
Para8
E
1981 (1) SCR 206
referred to
Para8
(1992) 1 sec 309
referred to
Para8
2006 (7) Suppl. SCR 336
referred to
Para8
(2016) 8 sec 1
referred to
Para8
F
1987 (1) SCR 879
referred to
Para9
2007 (1) SCR 706
referred to
Para24
2009 (1) SCR 992
referred to
Para26
1991 (2) Suppl. SCR 497
referred to
Para 43
G (2016) 1 sec 100
referred to
Para 62
(2005) 6 sec 211
referred to
Para 63
(1979) 3 sec 123
referred to
Para 64
2000 (5) Suppl. SCR 387
referred to
Para 64
H 2012 (5) SCR 503
' .
'
referred to
Para 71
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
507
(2014) 11 sec 417
1996 (1) SCR 518
AIR 1966 SC 1987
referred to
referred to
referred to
Para 73
Para 74
Para 75
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2453
A
of2007.
B
From the Judgment and Order dated 05.02.2007 of the Cauvery
Water Disputes Tribunal at New Delhi, of the Inter State River Water
Disputes Act of 1956.
Mukul Rohatgi, AG., Ms. Pinky Anand, ASG., F. S. Nariman, Anil
B. Divan, S. S. Javali, Jaideep Gupta, A. S. Nambiar, Shekhar Naphade,
C
Rakesh Dwivedi, Subramonium Prasad, Sr. Advs., M. R. Naik, Mohan
V. Katarki, S. C. Sharma, V. N. Raghupathy, R. S. Ravi, J. M.Aangadhar,
Ranvir Singh, G. Prakash, J ishnu M.L., Ms.Priyanka Prakash, Ms. Beena
Prakash, Manu Srinath, Ms. Anindita Mitra, B. Balaji, Rajesh Mahale,
V. G. Pragasam, Prabu Ramasubramanian, P. K. Manohar, Shanta D
Vashdhuan, S. Wasim A. Qadri, Ms. Madhvi Diwan, Ajay Sharma, Zaid
Ali,Ansh Singh Luthra, Ms. Snidha Mehra, Ms. Kiran Seth, Ms. Somya
Rathore, D. S. Mahra, G. Umapathy, C. Pararpasivam, Pankaj Kumar
Mishra, A. S. Bhasme, Ramesh Babu M. R., Ms. Aparna Bhat, Joshita
Pai, P. Raman, Advs. for the appearing parties.
The Judgment of the Court was delivered by
E
DIPAK MISRA, J. I. In these Civil Appeals the assail by the
States of Karnataka, Kerala and Tamil Nadu is to the final order dated
05.02.2007 passed by the Cauvery Water Disputes Tribunal (for short,
"the tribunal") constituted under the Inter-State River Water Disputes
F
Act, 1956 (for short, "the 1956 Act"). It is apt to note here that certain
interlocutory applications were filed by the State ofTamil Nadu for release
of water highlighting the scarcity of water faced by it and further laying
stress on the predicament of the farmers. This Court had passed certain
interim directions on 27•h of September, 2016 while dealing with I.A.
Nos. 15 and 16 of 2016. The Court sought the assistance of the learned
G
Attorney General for India to find out the view of the Union of India,
whether it would facilitate a discussion so that the impasse between the
two States would appositely melt. The matter was adjourned to 30'h of
September, 2016 and on that day, Mr. Mukul Rohatgi, learned Attorney
General for India apprised this Court that the meeting had been held H
508
A
B
c
SUPREME COURT REPORTS
[2016] 8 S.C.R.
under the Chairmanship of Union Minister of Water Resources, River
Development and Ganga Rejuvenation and the Minutes of the said
meeting were produced before the Court. The Minutes indicated that
despite best efforts to make both the States to arrive at a consensus on
release of Cauvery water, they took such divergent stands as a
consequence of which nothing could be resolved. After noting various
aspects, the Court enquired from the learned Attorney General with
regard to constitution of the Cauvery Management Board to which he
responded thatthe Board would be constituted on or before 4m of October,
2016. Keeping in view the submissions, the Court directed the States,
namely, Tamil Nadu, Karnataka and Kerala and Union Territory of
Puducherry to nominate their respective representatives as per the final
order passed by the tribunal. The earlier order to release 6000 cusecs of
water was reiterated. The matter was adjourned to 61h of October, 2016.
2. Before the matter could be listed on the date fixed, the learned
Attorney General for India mentioned the matter on 03.10.2016 that
D
Union of India had sought for some modification of the earlier order.
E
F
G
H
The matter was taken up on 4'h of October, 2016. On that day, the
Court noted that the order passed by it relating to release of water had
been complied with. Thereafter, it adverted to the I.A. 18 of2016 which
had been filed on behalf of the. Union oflndia seeking modification of
the orders dated 20'h of September, 2016 and 30'h of September, 2016.
After reproducing the prayer, the Court dwelled upon the submissions of
Mr. Rohatgi, learned Attorney General for India, Mr. F.S. Nariman and
Mr. Shekhar Naphade, learned senior counsel appearing for the States
of Karnataka and Tamil Nadu respectively and thereafter passed the
following order:-
"It is the submission of Mr. Rohtagi that as it is a debateable
issue; -the Court may not advert to the issue ofreview or recall but
defer it to be considered at the time of the final disposal of the
appeal. As advised, at present, we think it appropriate to defer the
same.
At this stage, we are obliged to state that in course ofhearing,
we asked Mr. Nariman, learned senior counsel that the note he
has filed (which we have reproduced hereinabove) covers the
time till 6.10.2016 and the appeals can be heard as directed earlier
on 18.10.2016 and, therefor1:, what should be the arrangement
for the said pe~iod. Mr. Nariman submitted that he has no
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
509
fDIPAK MISRA, J.l
instructions in the matter and he does not intend to make any
A
statement in that regard. Thereafter, we enquired who would be
in a position to obtain instructions from the State of Karnataka
and Mr. Mohan and Mr. Raghupathy, appearing for the State sought
some time to obtain instructions. As suggested by us, the matter
was adjourned by half an hour and we took up the matter at 3 .20
p.m.
At 3.20 p.m., Mr. M.R. Naik, learned Advocate General
forthe State ofKarnataka has filed a note which reads as follows:
"In response to the Hon'ble Court's query and in view of the
Hon'ble Court suggesting that the pending !As and objections
to the Supervisory Committee's recommendations cannot be
heard before 18th October, 2016 and taking into account the ·
drinking water requirement in the State, it wil 1 not be possible
to release water at the inter state border Biligundlu, of a quantity
not more than 1500 cusecs per day on an average limited for a
period of 10 days from 7th October, to 16th October, 2016."
Mr. Naik and Mr. Mohan submitted that from 5.09.2016 to
30.09.2016, State ofKarnataka has released 17.5 TMC of water.
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The said aspect has been disputed by Mr. Naphade after obtaining
instructions. According to him, the State ofKarnataka has released
16.9 TMC of water. Learned senior counsel for the State of Tamil
Nadu would submit that the State ofKarnataka is in deficit of 4.6
TMC of water forthe month of September and State ofKarnataka
under the final order of the Tribunal is required·to give 22 TMC of
water for the month of October. If the note of the State of
Karnataka is taken into consideration, 3 .1 TMC of water will be
F
released between 1.10.2016 to 6.10.2016. The learned Advocate
General submitted that he has filed the note after obtaining
instructions. Mr. Nariman would contend that this Court should
confine the release to the instructions obtained by the learned
Advocate General as a real plight faced by the inhabitants of
State of Karnataka.
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Before we enter into the said arena, we think it appropriate
to dwell upon the facet relating to have a report pertaining to the
ground reality in both the States relating to the Cauvery basin.
Mr. Rohtagi, learned Attorney General submitted that in paragraph
15 of the IA No.18 of 2016, he has given certain suggestions.
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SUPREME COURT REPORTS
[2016) 8 S.C.R.
Paragraph 15 reads as follows :
"(15) it is submitted that it would be in the fitness of things that a
High Powered Technical Team is appointed by the Chairman of
the Supervisory Committee who is the Secretary of the Ministry
of Water Resources. The composition of the Technical Team
would Shri G.S. Jha, Chairman/Member, Central Water
Commission (CWC), Government of India (who would be the
Chairman of the said Team), Shri Syed Masood Hussain, Member
(CWC), Shri R.K. Gupta, Chief Engineer (CWC) and such other
experts as decided by Secretary, Ministry of Water Resources in
consultation with Chairman, CWC to proceed immediately to the
site so that an inspection of the entire Basin is done for assessing
the ground realities and prepare a report forthwith for being placed
before this Hon'ble Court.
This Technical Team will inspect the entire Basin, make an
assessment of the entire issue, prepare a report forthwith within
30 days thereof.
lt is found that Karnataka has the following reservoirs:
(i)
Hemavathi
(ii)
Harangi
(iii)
Krishan Raj Sagar
(iv)
Kabini
The State of Tamil nadu has the following two reservoirs:
(i)
Mettur
(ii)
Lower Bhavani Dam
(iii)
Amaravati"
Mr. Naphade, learned senior counsel appearing for the State
of Tamil Nadu submitted that he has no objection for the same but
it should include a technical person from each of the State and the
Chief Secretary of the States. Mr. Naik, learned Advocate General
for the State of l):arnataka also acceded to the same. In view of
the aforesaid, we direct the.technical team headed by Mr. GS.
Jha, Chairman, Central Water Commission (CWC), Government
of India shall be constituted. It shall have, Shri Syed Masood
Hussin, Member, CWC, Shri R.K. Gupta, Chief Engineer, CWC
and a Chief Engineer or any competent authority nomim1ted by
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
511
[DIPAK MISRA, J.]
the State of Karnataka and State of Tamil Nadu and the Chief A
Secretaries or their nominee of both the States. Mr. G. Prakash,
learned standing counsel for the State of Kerala submitted that a
Chief Engineer shall also be included in the team. Mr. Nambiar,
learned senior counsel appearing for the Union Territory of
Puducherry also submitted that a Chief Engineer-from Puducherryc B
shall also be included in the team. It is so directed. _They shall also
be included in the team.
The said team shall go to the area in question and submit a
report relating to the ground reality before this Court on 17. I 0.2016.
Needless to say, the report shall be served on the learned counsel
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for the parties prior to that.
Let the I.As. and appeals be listed on 18. l 0.2016. Needless
to say, the I.As., objections thereto ari'd the report shall be
considered on 18.10.2016. Registry is also directed to list the
appeals on that day.
As far as the interim arrangement is concerned till
18.10.2016, we direct that the State ofKarnataka shall release
2000 cusecs of water from 7.10.2016 till 18.10.2016."
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3. On J 81h of October, 2016, the learned Attorney General being
assisted by learned Additional Solicitor General filed the report of the
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Committee which pertained to social aspects and technical aspects. It is
worthy to note that the Committee had not suggested anything with regard
to quantity of water that could be released by the State ofKamataka. At
that point of time, learned Attorney General submitteQ that the appeals,
by special leave, preferred by the States, namely, Tamil Nadu, Karnataka
and Kerala are not maintainable. The submission of Mr. Rohatgi was
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echoed by Mr. A.S. Nambiar, learned senior counsel appearing for the
Union Territory of Puducherry. In view of the aforc~aid submission, it
was decided to hear the maintainability of the appeals and the interim
order passed on earlier occasion was directed to be continued until further
orders. The issue of maintainability ofappeals was heard and ultimately
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the order was reserved.
4. Mr. Rohatgi, while questioning the maintainability of the appeals
by special leave, submitted thatArticle 262(2) of the Constitution read
with Section 11 of the 1956 Act bars the jurisdiction of this Court to
adjudicate upon any water dispute as defined under Section 2(c) of the H
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1956 Act. Expatiating the said proponment, it is urged by him that Article
262 begins with a non-obstante clause :md authorizes the Parliament to
provide by law to exclude the jurisdiction of this Court or any other court
in respect of a dispute or complaint that has been referred to in clause
( l) of Article 262 and hence, this Court does not have the jurisdiction to
decide anything that pertains to or emerges from water dispute. It is
canvassed by him that the Court does not have power to deal with the
!is either under Article 131 or Article 32 of the Constitution and, therefore,
it cannot entertain an appeal by special leave under Article 136 of the
Constitution oflndia that assails the final order of the tribunal. To bolster
the aforesaid proposition, he has commended us to th.e authorities in In
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Re: Cauvery Water Dispute Tribuna/1, State of Karnataka v. State
of A.P. and Ors.=, State of Haryana v. State of Punjab and Anr. 3,
State of Himaclial Pradesh v. Union of India and Ors.•, Tamil Nadu
Cau·very Neerppasana Vilaiporulgal Vivasayigal Na/a Urinlai
Padliugappu Sangam v. Union of India and Ors. 5, Narmada
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Baclwo Andolan v. Union of India and Ors. 6, M ul/aperiyar
Environmental Protection Forum v. Union of India and Ors. 7, Atma
Linga Reddy & Ors. v. Union of India and Ors.8, Networking of
Rivers, In Re9, State of Tamil Nadu v. State of Karnataka and Ors.
witlt Union Territory of Pondicl1erry v. State of Karnataka and Ors. JO.
5. It is further propounded by Mr. Rohatgi that the 1956 Act framed
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by Parliament is a complete code in itself and ifthe scheme of the said
Act is scrutinized and appreciated in proper perspective, it is clear as
crystal that this Court has no jurisdiction to exercise the appellate power
by granting leave. The said submission is sought to be pyramided by
placing reliance on Section 6(2) of the 1956 Act which provides that
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decision of the tribunal after its publication in the Official Gazette by the
Central Government shall have the force of an order or decree of the
Supreme Court. Elucidating the said aspect, it is contended by him that
1 1993 supp (I) sec 96 (2)
2 (2000) 9 sec 572
G , (2002) 2 sec 501
• (20ll) n sec 344
' (1990) 3 sec 440
• (2000) 1 o sec 664
1 (2006) 3 sec 643
• (2008) 1 sec 788
• (2012) 4 sec $1
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''' ( 1991) Supp (I) sec 240
~
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
513
rDIPAK MISRA, J.]
once the statutory provision postulates that the award has the same
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force as that of the decree of this Court, there cannot be an appeal
assailing the same, for the simon pure reason that the concept of intracourt appeal is alien to the adjudicatory process of this Comt and remotely
not conceived of under the constitutional scheme or by any precedent.
For the said purpose, he has drawn inspiration from the authority in
Rupa As/wk H urra v. As/wk H wra & Anr. 11 •
6. Mr. Nari man, learned senior counsel appearing for the State of
Karnataka resisting the submissions of the learned Attorney General
has referred us to the Draft Constitution dated 21.02.1948 prepar~d by
the Drafting Committee which contained the progenitor of Article 136
of the Constitution; the Constituent Assembly debates pertaining to Article
112( l) and (2); history of Article 262 and submitted that the protective,
preclusive or ouster clauses are not unknown to the legislature and the
legislature has frequently used the provisions for restricting or eliminating
power of judicial review, but the judicial pronouncements in this country
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are consistent that the jurisdiction of the courts of superior jurisdiction
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are unaffected by such provisions. The learned senior counsel has referred
to many authors and tests to highlight the principle that the jurisdiction of
the Supreme Court is guaranteed by the constitutional provisions, and
the exclusion ofitsjurisdiction is notto be easily infen-ed. It is propounded
by Mr. Nariman that the decisions upon which reliance has been placed
by the learned Attorney General lead to the indubitable conclusion that
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only in respect of the original dispute or complaint, the jurisdiction of the
courts including the Supreme Court under Article 131 stands excluded,
but do not in any manner affect the jurisdiction conferred upon this Court
under Article 136 of the Constitution. He has placed heavy reliance on
the three-Judge Bench decision in State of Tamil Nadu v. State of F
Karnataka and Ors. with Union Territory of P01u/ic/1erry v. State of
Karnataka and Ors. (supra) to strengthen uie stance that the Comt
has clearly expressed the opinion that an appeal by special leave under
Article 136 of the Constitution is available to the party aggrieved by an
order of the Cauvery Water Disputes Tribunal and hence, the plea of
maintainability has no space for any kind of debate. According to the
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learned seni~r counsel, plentitude of power under Article 136 of the
- Constitution has been authoritatively stated by the Constitution Bench in
Durga S/tankar Mehta v. Thakur Raglturaj Singlt and Ors. 12 and
11 (2002) 4 sec 388
12 1955 (I) SCR 267: AIR 1954 SC 520
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A further in Assoc;iated Cement Companies Ltd v. P.N. Sllarma 13, Jose
Da Costa and Anr. v. Bascora Sadasiva Sinai Narcomim and Ors.
1 ~.
Arunacllalam v. P.S.R. Sadllanantllam and Anr. i;, P.S.R.
Sadlianantliam v. Arunacflalam and
Anr. 16, Union Carbide
Corporation and Ors. v. Union of India and Ors.11, Praslwnt
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Ramacliandra Deshpande v. Maruti Ba/aram Haibatti 18, Malzendra
Saree Emporium (II) v. G V. Srinivasa Murtlzy 19, U. Sree v. U.
Srinivas~
0 and Mathai v. George and Anr. ~
1 and the exercise of the
said power by the Court has not been curtailed by the original
constitutional provision, that is, Article 262 and could not have been
crippled by any statutory provision and, in fact, has not been taken away
by the 1956 Act, for it has its source in Article 262 which does not so
envisage.
7. In reply to the submission pertaining to Section 6(2) of the 1956
Act that the final order by the tribunal once published in the Gazette has
the force of an order or decree of this Court, it is argued by him that the
said provision, by no means, deprives this Court to interfere with such
decision by way of appeal by special leave because it is a decision rendered .
by the tribunal and a tribunal always remains a tribunal, for all purposes,
and it is impossible to draw the inference that it ousts the jurisdiction of
this Court under Article 136 of the Constitution. According to him,
acceptance of such a stand would tantamount to rewriting Article 136
itself. Elucidating further, Mr. Nariman contends that Section 6(2) has
been inserted by the Amending Act 14 of2002 with effect from 06.08.2002
to give teeth to the final order of the tribunal in accordance with the
~arkaria Commission's recommendations given in its report on CenterState Relations, 1980. That apart, submits learned senior counsel that it
is the settled principle oflaw that even when there is a legal fiction, like
a deeming provision, the interpretation of the said provision should not
go beyond the purpose for which the fiction was created or expand the
horizon which it was never meant to reach. For reinforcing the contention,
" (1965) 2 SCR 366
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1'(1976)2SCC917
" ( 1979) (2) sec 297
1' (1980) 3 sec 141
11 (1991) 4 sec 584
1• ( 1995) Supp (2) sec 539
1' (2005) 1 sec 481
20 (2013)2 sec 114
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11 (2010) 4 sec 358
STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.
515
[DIPAK MISRA, J.]
reliance has been placed on Aneeta Hada v. God/allier Travels and A
Tours Private Limited'-" and State of Uttar Pradesli v. Hari-Ram"3•
8. Mr. Naphade, learned senior counsel appearing for the State of
Tamil Nadu has submitted that in Article 262(2) of the Constitution as
well as in Section 11 of the 1956 Act, the words used are "in respect of
any dispute" and the ouster clause is to the effect that "no court including
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the Supreme Court shall exercise the jurisdiction in respect of such dispute
or complaint" and the ouster of jurisdiction of this Court is limited and by
no stretch of imagination it allows any room for expansion. It is put forth
by him that under Article 136 power of judicial review is conferred on
this Court by the Constitution oflegislative action, judicial decision and
administrative action and the said power of judicial review is the basic
feature of the Constitution which cannot be curtailed by a statutory
provision as enshrined under Sections 6(2) and 11 of the 1956 Act. For
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the aforesaid purpose, learned senior counsel has commended us to the
authorities in L. Chandra- Kumar v. Union of India and Ors."\
Minerva Mills Ltd. and Ors. v. Union of India and Ors.=;, Kiiloto
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Hollo/ion v. Zac/1illm and Ors."6, M. Nagaraj and Ors. v. Union of
India and Ors."7 and Nabam Rebia am/ Bamang Felix v. Dy.
Speaker, Arunacllal Prades/i Legislative Assembly and Ors."8•
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9. It is further contended by Mr. Naphade that the tribunal is
bound by the Constitution and rule oflaw and denial of powerof judicial
review to this Court under Article 136 of the Constitution would be an
obstruction in the process ofadjudication and justifiable decision making
process, for it is the duty of the tribunal to render a decision which
should be made by application of established principles oflaw, namely,
adherence to principles of natural justice, good conscience, absence of
arbitrariness, just and appropriate appreciation of evidence on record,
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showing respect for precedents, demonstrable ratiocination that would
show application of mind and in such an adjudicatory process, it is
inconceivable that the founding fathers of the Constitution had
contemplated creation of a tribunal with unguided, uncontrolled or
22 (2012) s sec 661
" (2013) 4 sec 280
"(1997) 3 sec 261
" ( 1980) 3 sec 625
· "(1992) 1sec309
21 (2006) 8 sec 212
"(2016) 8 sec 1
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uncanalised judicial powers. He has anchored on the authority P.
Sambamurtlly and Ors. v. State of Andllra Prmle~·fl and Anr. "9 to
bolster the proposition that it is a basic principle of rule of law that exercise
of power by any authority must not only be conditioned by the Constitution
but must also be in accordance with law and that power of judicial review
is conferred by the Constitution with a view to ensure that the supremacy
oflaw is sustained. It is further put forth by him that the tribunal which
is constituted under Section 4 of the 1956 Act is not a constitutional
functionary as contemplated by th~ Constitution and, therefore, the
argument on behalf of the Union oflndia that Article 262 being a part of
the original Constitution, any law made under Article 262 can oust the
jurisdiction of this Court including the power of judicial review ur.der
A1iicle 136 is wholly untenable. It is additionally expounded in this regard
that "there is a qualitative difference between the provisions of the
Constitution and the law made under the Constitution. For the aforesaid
purpose, he has drawn inspiration from c_ertain passages from Nabam
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Rebia (supra).
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IO. Mr. Naphade has scanned the anatomy of the 1956 Act to
substantiate that the legal fiction contemplated under Section 6(2) of the
1956 Act operates only with regard to the execution of the decision of
the tribunal which has the same force as an order or decree of this
Court and cannot be allowed to travel beyond the same.