# THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE OF TAMIL NADU BY ITS CHIEF SECRETARY & ORS

- **Citation:** [2018] 5 S.C.R. 829
- **Court:** Supreme Court of India
- **Decided:** 2018-02-16
- **Case number:** Civil Appeal No. 2453 of 2007
- **Bench:** Dipak Misra, Amitava Roy, A.M. Khanwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-karnataka-by-its-chief-secretary-v-state-of-tamil-nadu-by-its-33202
- **Pages:** 296

## Headnote

Inter-State Water Disputes:
Water dispute raised by State of Tamil Nadu - Against State
of Karnataka - Alleging that the executive action taken by State of
Karnataka in constructing Kabini, Hemavathi, Harangi, Swrnavathi
and other projects has affected the interest of the State of Tamil
Nadu in the waters of Cauvery, an inter-State river - Also alleged
that the executive action were in violation of agreements entered
into between the erstwhile Madras Presidency and State of Mysore
in the years 1892 and 1924 - Central Government referred the
dispute to Cauvery Water Disputes Tribunal - Claims also raised
by State of Kerala to the waters of river Cauvery on account of the
areas transferred to it from the State of Madras after State
Reorganization Act, 1956 - Claim by Union Territory of Puducherry
in the waters of Cauvery river since it was located within Cauvery
basin and seven branches of Cauvery did flow through the said
region - Tribunal held the agreements of 1892 and 1924 as valid
and determined the utilisable quantum of waters of the Cauvery to
be 740 thousand Million Cubic Feet (TMC) - The Tribunal allocated
the waters of Cauvery, following the principle of equitable
apportionment - It allocated 419 TMC to State of Tamil Nadu, 270
TMC to State of Karnataka 30 TMC to State of Kerala and 7 TMC
to Union Territory of Puducherry - In addition, the Tribunal
reserved 10 TMC for environmental protection and 4 TMC for
inevitable escapages into the sea - Aggrieved by allocation of
sharing of waters of Cauvery awarded by the Tribunal, appeals by
way of SLP were filed by the States of Tamil Nadu, Karnataka and
Kerala - Held: Waters of an inter-State river passing through
corridors of the riparian States constitute a national asset and no
single State can claim exclusive ownership of its water - Principle
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of equitable apportionment internationally recognized by the
Helsinki Rules, Compione Rules and Berlin Rules which have also
been incorporated in 1987 and 2002 National Water Policies, have
been regarded to be the guiding factors for resolving disputes qua
apportionment of waters of an inter-Sate river - The Tribunal was
correct in its approach - Tribunal correctly determined the irrigated
area of Tamil Nadu - Allocation of water to Tamil Nadu for domestic
and industrial purposes and allocation of water to Kerala and
Puducherry also requires no interference - Reservation of 10 TMC
for environment protection and 4 TMC for inevitable escapages
into sea also does not need any interference - However, the
admission of facts and empirical data suggests that around 20 TMC
of water is available in Tamil Nadu which has not been taken into
account by the Tribunal - Therefore, keeping in view the risks
associated with over-extraction of groundwater, 10 TMC of the
available groundwater in Tamil Nadu to be taken into account for
final determination of State of Tamil Nadu - Tribunal has also
drastically reduced the share of Karnataka towards Domestic and
Industrial purpose - Therefore, 4.75 TMC is awarded to Karnataka
for this purpose - Thus, it would be appropriate to award to the
State of Karnataka an additional 14.75 TMC (10 TMC on account
of availability of groundwater in the State of Tamil Nadu and 4.75
for domestic and drinking purposes) - Inter-State Water Disputes
Act, 1956 - ss. 3 and 5.
Inter-State Water Disputes:
Water Dispute - Between States of Tamil Nadu and
Karnataka - Pertaining to waters of Inter-State river Cauvery -
Complainant State (State of Tamil Nadu) inter-alia alleged that the
executive action of State of Karnataka (affecting the interest of
State of Tamil Nadu) was in violation of the agreements entered
into, in the years 1892 and 1924 between the erstwhile State of
Mysore and Madras Presidency, in respect of distribution of waters
of Cauvery river - State of Karnataka questioned the validity of
the agreements on the ground of applicabilit

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829
STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE
OF T. N. BY ITS CHIEF SECRETARY [DIPAK MISRA, CJI]
829
THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY
v.
STATE OF TAMIL NADU BY ITS CHIEF SECRETARY & ORS.
(Civil Appeal No. 2453 of 2007)
FEBRUARY 16, 2018
[DIPAK MISRA, CJI, AMITAVA ROY AND
A.M. KHANWILKAR, JJ.]
Inter-State Water Disputes:
Water dispute raised by State of Tamil Nadu - Against State
of Karnataka - Alleging that the executive action taken by State of
Karnataka in constructing Kabini, Hemavathi, Harangi, Swrnavathi
and other projects has affected the interest of the State of Tamil
Nadu in the waters of Cauvery, an inter-State river - Also alleged
that the executive action were in violation of agreements entered
into between the erstwhile Madras Presidency and State of Mysore
in the years 1892 and 1924 - Central Government referred the
dispute to Cauvery Water Disputes Tribunal - Claims also raised
by State of Kerala to the waters of river Cauvery on account of the
areas transferred to it from the State of Madras after State
Reorganization Act, 1956 - Claim by Union Territory of Puducherry
in the waters of Cauvery river since it was located within Cauvery
basin and seven branches of Cauvery did flow through the said
region - Tribunal held the agreements of 1892 and 1924 as valid
and determined the utilisable quantum of waters of the Cauvery to
be 740 thousand Million Cubic Feet (TMC) - The Tribunal allocated
the waters of Cauvery, following the principle of equitable
apportionment - It allocated 419 TMC to State of Tamil Nadu, 270
TMC to State of Karnataka 30 TMC to State of Kerala and 7 TMC
to Union Territory of Puducherry - In addition, the Tribunal
reserved 10 TMC for environmental protection and 4 TMC for
inevitable escapages into the sea - Aggrieved by allocation of
sharing of waters of Cauvery awarded by the Tribunal, appeals by
way of SLP were filed by the States of Tamil Nadu, Karnataka and
Kerala - Held: Waters of an inter-State river passing through
corridors of the riparian States constitute a national asset and no
single State can claim exclusive ownership of its water - Principle
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of equitable apportionment internationally recognized by the
Helsinki Rules, Compione Rules and Berlin Rules which have also
been incorporated in 1987 and 2002 National Water Policies, have
been regarded to be the guiding factors for resolving disputes qua
apportionment of waters of an inter-Sate river - The Tribunal was
correct in its approach - Tribunal correctly determined the irrigated
area of Tamil Nadu - Allocation of water to Tamil Nadu for domestic
and industrial purposes and allocation of water to Kerala and
Puducherry also requires no interference - Reservation of 10 TMC
for environment protection and 4 TMC for inevitable escapages
into sea also does not need any interference - However, the
admission of facts and empirical data suggests that around 20 TMC
of water is available in Tamil Nadu which has not been taken into
account by the Tribunal - Therefore, keeping in view the risks
associated with over-extraction of groundwater, 10 TMC of the
available groundwater in Tamil Nadu to be taken into account for
final determination of State of Tamil Nadu - Tribunal has also
drastically reduced the share of Karnataka towards Domestic and
Industrial purpose - Therefore, 4.75 TMC is awarded to Karnataka
for this purpose - Thus, it would be appropriate to award to the
State of Karnataka an additional 14.75 TMC (10 TMC on account
of availability of groundwater in the State of Tamil Nadu and 4.75
for domestic and drinking purposes) - Inter-State Water Disputes
Act, 1956 - ss. 3 and 5.
Inter-State Water Disputes:
Water Dispute - Between States of Tamil Nadu and
Karnataka - Pertaining to waters of Inter-State river Cauvery -
Complainant State (State of Tamil Nadu) inter-alia alleged that the
executive action of State of Karnataka (affecting the interest of
State of Tamil Nadu) was in violation of the agreements entered
into, in the years 1892 and 1924 between the erstwhile State of
Mysore and Madras Presidency, in respect of distribution of waters
of Cauvery river - State of Karnataka questioned the validity of
the agreements on the ground of applicability of doctrine of
paramountcy; and on the ground of unconscionability of the
agreements - On appeal, held: After coming into force of Indian
Independence Act, 1947, doctrine of paramountcy has no room for
application - The agreements had neither any political arrangement
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nor touched any facet of sovereignty of India, but they covered
areas of larger public interest - The agreements did not come to an
end either after coming into force of 1947 Act or after coming into
force of the Constitution - State of Mysore might not have bargaining
power in 1892 or 1924 but such power came alive after the 1947
Act or coming into force of the Constitution - State of Karnataka
did not choose to denounce the same - Even after coming into force
of States Reorganization Act, 1956, newly formed States did not
raise any dispute to controvert the agreements - Thus, the State of
Karnataka waived its right to question the legal tenability of the
agreements - Therefore, the agreements are neither inoperative nor
completely extinct - However, 1924 agreement was not intended to
be of permanent character - It contemplated a fixed term of 50
years and its continuance after 50 years was dependent on certain
aspects - Therefore, the 1924 agreement expired after 50 years i.e.
in the year 1974 - Indian Independence Act, 1947 - s. 7 - States
Reorganization Act, 1956.
Inter-State Water Disputes:
Complaint by State of Tamil Nadu - Against State of
Karnataka - Regarding allocation of waters of inter-State river
Cauvery - Adjudicability of the complaint - Held: When States make
a request under Inter-State Water Disputes Act, 1956 for
adjudication of disputes, interest of the inhabitants of the State is
involved - Both the States are governed by parens patria principle -
The matter deserved to be adjudicated on the bedrock of equal
status of the States and doctrine of equitability - Inter-State Water
Disputes Act, 1956.
Inter-State Water Disputes Act, 1956:
s.6A - Interpretation of - Held: Central Government does
not have discretion to frame scheme u/s. 6A - Framing of the Scheme
is exclusively meant for implementation of the award or as the same
gets modified by Supreme Court.
Constitution of India:
Arts. 143, 262 and 363 - Inter-State water dispute - Between States
of Tamil Nadu and Karnataka - Non-maintainability of the disputes
on the basis of agreements entered between erstwhile State of Mysore
and Madras presidency - Held: Bar under s. 363 is not applicable
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in the present case as the issues in the present case have no
connection with the concept of sovereignty and integrity of India.
Constitution of India:
Art. 136 - Jurisdiction under - To entertain the appeal against
Cauvery Water Disputes Tribunal - In view of s. 6(2) of Inter-State
Water Disputes Act, 1956 - Held: The legislative intendment of s.
6(2) is not to create any embargo on the jurisdiction of Supreme
Court - The fiction has been created for limited purpose of giving
binding effect to the award passed by the Tribunal - Section 6
cannot be interpreted in an absolute mechanical manner and the
words "same force as an order of decision" cannot be treated as an
order or decree for the purpose of excluding jurisdiction of Supreme
Court - A provision should not be interpreted to give a different
colour which has a technical design rather than serving object of
the legislation - Hence, s. 6(2) does not bar jurisdiction conferred
on Supreme Court u/Art. 136 - Inter-State Water Disputes Act, 1956 -
s.6(2) - Interpretation of Statutes.
Interpretation of Statutes:
Rules of interpretation - Purposive interpretation - A provision
should not be interpreted to given a different colour which has a
technical design rather than serving object of the legislation.
Doctrines/Principles:
Doctrine of paramountcy - Applicability of - Discussed.
Principle of apportionment - Discussed.
Partly allowing the appeal filed by State of Karnataka and
disposing of the appeals filed by the States of Tamil Nadu and
Kerala, the Court
HELD: 1. Doctrine of Paramountcy and its extinction on
coming into force of the Indian Independence Act, 1947:
1.1 It cannot be said that after coming into force of the
1947 Act and thereafter the Constitution of India, the agreements
of 1892 and 1924 became inoperative and totally extinct. [Para
84] [932-A]
1.2 After coming into force of the 1947 Act, the doctrine of
paramountcy has no room for application, as the Government of
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India became the full sovereign authority. The two agreements
of 1892 and 1924 had neither any political arrangement nor
touched any facet of sovereignty of India. Per contra, the
agreements cover the areas of larger public interest which do
not have any political element and in this backdrop, the
agreements are neither inoperative nor completely extinct. [Para
404(i)] [1120-D]
H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia
Bahadur of Gwalior and others v. Union of India and
another (1971) 1 SCC 85 : [1971] 3 SCR 9 - relied on.
Dr. Babu Ram Saksena v. State [1950] SCR 573 : AIR
1950 SC 155; Hemchand Devchand v. Azam Sakarlal
Chhotamlal (1905) 33 IA 1 : (1906) ILR 33 Cal 219;
State of Tamil Nadu v. State of Kerala and another
(2014) 12 SCC 696 : [2014] 12 SCR 875; Mullaperiyar
Environmental Protection Forum v. Union of India and
others (2006) 3 SCC 643 : [2006] 2 SCR 740; Virendra
Singh and others v. State of U.P. [1955] 1 SCR 415 :
AIR 1954 SC 447 - referred to.
"Integration of Indian States" by Mr. V.P. Menon -
referred to.
2. Unconscionability of the Agreements of 1892 and 1924 :
On a keen scrutiny of the evidence on record, there is no
proof that the State of Mysore, at the relevant time, had denounced
the agreements. The agreements did not automatically come to
an end either after coming into force of the 1947 Act or after
coming into force of the Constitution because of the "Standstill
Agreement" and further owing to the fact that there had been no
denouncement. The bargaining power may not have existed in
1892 or 1924 but definitely, the said power to bargain or to choose,
came alive after the 1947 Act and, undoubtedly, after the
Constitution came into being. However, the State of Karnataka
chose not to do so. Therefore, the agreements should not be
declared as void because of unconscionability. [Para 119] [957D, E-G]
New Bihar Biri Leaves Co. and others v. State of Bihar
and others (1981) 1 SCC 537 : [1981] 2 SCR 417;
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Central Inland Water Transport Corporation Limited
and another v. Brojo Nath Ganguly & Another (1986)
3 SCC 156 : [1986] 2 SCR 278; O.P. Bhandari v.
ITDC (1986) 4 SCC 337 : [1986] 3 SCR 923; Delhi
Transport Corporation v. D.T.C. Mazdoor Congress and
others 1991 Supp. (1) SCC 600 : [1990] 1 Suppl. SCR
142; Balmer Lawrie & Company Limited and others v.
Partha Sarathi Sen Roy and others (2J) (2013) 8 SCC
345 : [2013] 4 SCR 1018; West Bengal State Electricity
Board and others v. Desh Bandhu Ghosh and others
AIR 1985 SC 722 : [1985] 2 SCR 1014 - referred to.
Black's Law Dictionary by Bryan Garner, Editor-Chief (10th
Edition, Thomson Reuters); Rivers in International
Law (1959) by F.J. Berber; L. Oppenheim International
Law (8th Edition); Chitty on Contracts (25th Edition, Vol.I)
- referred to.
3. Status of Agreements after coming into force of States
Reorganisation Act, 1956:
Nothing has been brought on record to show that any dispute
was raised after the Reorganisation Act, 1956 came into force,
by the newly formed States to controvert the agreements of 1892
and 1924. As the facts clearly depict, it continued. The State of
Karnataka had waived its right to question the legal tenability of
the agreement. It remains a fact that both the agreements with
the Regulations remained in force despite coming into effect of
the Reorganisation Act, 1956. [Para 133] [968-F-H]
M/s. Dalmia Dadri Cement Co. Ltd. v. Commissioner of
Income Tax AIR 1958 SC 816 : [1959] SCR 729; Amar
Chand Butail v. Union of India and others AIR 1964
SC 1658; Firm Bansidhar Premsukhdas v. State of
Rajasthan AIR 1967 SC 40 : [1966] Suppl. SCR 81;
State of Punjab & Ors. v. Balbir Singh & Ors. (1976) 3
SCC 242 : [1976] 2 SCR 115; Ranjan Sinha v. Ajay
Kumar Vishwakarma 2017 (7) SCLAE 234; State of
M.P. v. Bhopal Sugar Industries Ltd. [1964] 6 SCR 846;
Sher Singh and others v. Financial Commissioner of
Planning, Punjab and others (1987) 2 SCC 439 : [1987]
2 SCR 691 - referred to.
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STATE OF KARNATAKA BY ITS CHIEF SECRETARY v. STATE
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4. Issue relating to expiry of the agreements:
A scrutinized perusal of the 1924 Agreement reveals that
the said Agreement was never intended to be of permanent
character. On the contrary, it contemplated a fixed term of 50
years. Having perused the clause in entirety and considering the
words, namely, 'reconsideration', 'mutually agreed upon' and 'be
open to', it is clear that certain clauses in the Agreement had a
restricted life span. Inasmuch as the relevant clauses which are
open to reconsideration are absolutely essential parts of the
contract and it is extremely difficult to place appropriate
construction on the contract without them. The clauses in the
contract do not indicate permanency but, on the contrary, indicate
fixed term. The continuance of contract, was further a subjective
consideration and merely agreed upon and, therefore, to hold
that it continued solely because of the experience gathered would
not be appropriate and it would be contrary to the concept of
understanding the clauses in a contract to give effect to its
continuance. The continuance after 50 years was dependent on
certain aspects and, therefore, the agreement expired after 50
years i.e. in the year, 1974. [Paras 404(v), 146 and 147] [1121-A;
975-H; 976-A-D]
In Re: Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96 : [1991] 2 Suppl.
 SCR 497 - referred to.
5. Infraction of Article 363 of the Constitution of India and
non- maintainability of the dispute on the basis of agreements of
1892 and 1924:
The issues in the present case have no connection,
whatsoever, with the concepts of sovereignty and integrity of India
and, therefore, the bar under Article 363 of the Constitution of
India is not attracted. It is not correct to say that the two
agreements have to be looked into for the purpose of adjudication
of the water dispute by the Tribunal because of Article 262 of the
Constitution. [Paras 404(ii) and 104] [948-C; 1120-E-F]
State of Tamil Nadu v. State of Kerala and another
(2014) 12 SCC 696 : [2014] 12 SCR 875 - followed.
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H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia
Bahadur of Gwalior and others v. Union of India and
another (1971) 1 SCC 85 : [1971] 3 SCR 9 - relied on.
State of Seraikella v. Union of India and another [1951]
SCR 474 : AIR 1951 SC 253 - distinguished.
State of Karnataka v. State of Tamil Nadu and others
(2017) 3 SCC 362 : [2016] 8 SCR 499; In Re:
Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl.
 SCR 497; Maharaja Shree Umaid Mills Ltd. v. Union
of India [1963] Supp. 2 SCR 515 : AIR 1963 SC 953 -
referred to.
6. Adjudicability of the Complaint:
6.1 It is not correct to say that the complaint deserves to
be dismissed in the absence of proven injury. The complaint does
not contain the words "prejudicially affected' but the antecedents
of the complaint, the view of the Central Government while
referring water dispute and the expression of opinion of this Court
in *Presidential Reference (Cauvery Water Disputes Tribunal) case.
In the backdrop of the language of the Inter-State Water Disputes
Act, 1956 the expiration by the efflux of time and the role of this
Court, the Court is not inclined to entertain such a plea. The
matter (complaint) deserves to be adjudicated on merits. [Paras
149 and 150] [977-F; 978-B-C, D]
*In Re: Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl.
 SCR 497 - referred to.
6.2 On a perusal of the Helsinki Rules, 1966, it is clear
that the said Rules have not accepted the Harmon doctrine. It
has, on the contrary, laid emphasis on the need of equitable
utilization of such international rivers. It is noticeable from Articles
IV and V of the Helsinki Rules that they recognize equitable use
of water by each basin State, setting out the factors, not exhaustive
though, to be collectively taken into consideration for working
out the reasonable and equitable share of the riparian States. The
indicated factors, inter alia, include the geography of the basin,
the hydrology of the basin, the climate, past utilization of waters,
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economic and social needs of each basin State, population
dependent on the waters of the basin in each basin State,
availability of other resources and the degree to which the needs
of a basin State may be satisfied without causing substantial injury
to a co-basin State. The emphasis clearly is that in determining
the reasonable and equitable share, all relevant factors are to be
considered together and a conclusion is to be reached on the
whole. [Para 161] [985-G-H; 986-A-B]
State of Wyoming v. State of Colorado 259 US 419
(1922); State of Nebraska v. State of Wyoming 325 US
589 (1945); Kansas v. Colorado 206 US 46 (1906);
Colorado v. Kansas 206 US 46 (1906); State of New
Jersey v. State of New York 283 US 336 (1931); State
of Connecticut v. Commonwealth of Massachusetts 282
US 660 (1931); State of Colorado v. State of New
Mexico 459 US 176 (1982) - referred to.
6.3 The definition of 'water disputes' in s. 2(c) of the InterState Water Disputes Act, 1956 and the provisions contained in
Section 3 have to be given due significance. Section 3 protects
the right of inhabitants of a State. [Para 165] [987-E]
6.4
When the States make a request under the Inter-State
Water Disputes Act, 1956 for adjudication of the disputes, the
interest of the inhabitants of the State is involved. Both the States
are governed by the parens patriae principle. The Tribunal in its
approach primarily referred to Helsinki Rules, 1966. The Tribunal
was correct in its approach. For determining reasonable and
equitable shares, relevant factors have to be considered together,
in reaching a conclusion. Keeping in view the various intricacies
involved in the present case and the duty ordained upon this
Court by the Constitution of India, the matter deserved to be
adjudicated on the bedrock of equal status of the States and
doctrine of equitability. Resultantly, it cannot be said that the
complaint of the State of Tamil Nadu did not warrant any
adjudication. [Paras 165 and 404(vi)] [987-E-F; 1121-B-D]
7. Principles of apportionment to be followed:
7.1
The waters of an inter-State river passing through the
corridors of the riparian States constitute national asset and
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cannot be said to be located in any one State. Being in a state of
flow, no State can claim exclusive ownership of such waters or
assert a prescriptive right so as to deprive the other States of
their equitable share. It has been propounded therein that the
right to flowing water is well-settled to be a right incident to
property in the land and is a right publici juris of such character,
that while it is common and equal to all through whose land it
runs and no one can obstruct or divert it, yet as one of the beneficial
gifts of Nature, each beneficiary has a right to just and reasonable
use of it. [Para 363] [1092-A-C]
7.2
To conceive that equality rests on equal sharing of
water within an arithmetical formula, would be fundamentally
violative of the established conception of equitable apportionment
because the said concept inheres a multiple factors. It is the
obligation of the Tribunal to address the same and the duty of
this Court is to adjudge within the permissible parameters of the
justification of the said adjudication. The dissension has to be
addressed in the backdrop of equal Status of the States and the
doctrine of equitability. [Para 364] [1092-H; 1093-A-B]
7.3
The principles laid down in Helsinki Rules can be
regarded as functional dynamics while equitably distributing the
water in an inter-State river disputes. The salient feature of all
these factors has to have inherent variability and inevitable
flexibility thereof having regard to the local conditions, for it is
difficult to ignore the undeniable and common emphasis necessary
to ensure beneficial use of the available resources for a basin
State and logically for its dependent populace warranted by the
economic and social needs. While determining the said needs,
amongst others, past and existing utilization of the water have to
be borne in mind. To remain oblivious to the same would amount
to playing possum with the doctrine of equitable distribution in
praesenti. The noticeable quintessence of the determinants is
the predication for a delicate balance in adjustments of the needs
based on realistic, reasonable, judicious and equitable canons so
much so that while satisfying the requirements of a basin State, a
co-basin State is not subjected to any substantial injury. Though
in terms of Articles VI and VII of Helsinki Rules, any other
category of users is not entitled to any inherent preference over
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any other use or category of users, yet the precedence of an
existing reasonable use of a basin State over a proposed future
use of a co-basin State has been recognized. Significantly, in terms
of Article VIII, an existing reasonable use may continue in
operation, unless the factors justifying its continuance are
outweighed by other factors leading to the conclusion that it be
modified or terminated so as to accommodate a competing
incompatible use clearly signifying that an existing use is also
not absolute in terms and is subject to exigency based
adjustments. [Para 367] [1094-H; 1095-A-E]
7.4
Substantially on the same lines is the Campione
Consolidation of ILA Rules on International Water Resources
1966-1999. The distinguishing attribute of these Rules is the
inclusion of water of an aquifer, i.e., underground water or "fossil
waters" intercepted by the boundary between the two or more
States as international ground-water so much so that it would
form an international basin or part thereof qua the relevant factors
to determine reasonable equitable share. These Rules include
the criterion of interdependence of underground waters and other
waters, including any interconnections between aquifers and any
leaching into aquifers caused by activities in areas under the
jurisdiction of the basin states. [Para 368] [1095-E-G]
7.5
Another set of rules on international drainage basin is
called the Berlin Rules adopted by the International Law
Association in its Berlin Conference in the year 2004. On the
aspect of equitable utilization, Article 12 thereof provides that
basin States, would in their respective territories manage the
waters of an international drainage basin in an equitable and
reasonable manner, having due regard for the obligation not to
cause significant harm to other basin States and in particular, the
basin States, would develop and use the waters of the basin in
order to attain optimal and sustainable use thereof. The interest
of the other basin States are to be kept in view. Article 13 of the
Rules catalogues as well the relevant factors to determine the
equitable and reasonable use of a basin State. While reiterating
in essence the Rules as prescribed by the Helsinki Rules, the
additional aspect to be considered is minimization of
environmental harm. Article 14 of these Rules stipulates that in
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determining an equitable and reasonable use, the States shall
first allocate waters to satisfy vital human needs and that no other
use or category of uses shall have an inherent preference over
any other use or category of uses. Article 17 postulates that every
individual has a right of access to sufficient, safe, acceptable,
physically accessible and affordable water to meet his vital human
needs and it is the obligation of the States to ensure the
implementation of right of access to water on a non-discriminatory
basis. [Paras 369 and 370] [1095-G-H; 1096-A-D]
7.6
The common thread decipherable from these Rules is
the universal acknowledgment of the principle of equitable
utilization as an effective and workable tool for the management
of waters of an international drainage basin. [Para 371] [1096-DE]
7.7
The National Water Policy of 1987 sounded a threshold
caveat that water is a prime natural resource, a basic human need
and a precious national asset. While emphasizing that this resource
is one of the most crucial elements in development planning, the
policy announced that it is a scarce and precious national asset to
be planned, developed and conserved on an integrated
environmentally sound basis, keeping in view the needs of the
States concerned. It underlined that resource planning in the
case of water has to be done for a hydrological unit such as
drainage basin as a whole or for a sub-basin and that all individual
developmental projects and proposals should be formulated by
the States and considered within the framework of such an overall
plan for a basin or sub-basin so that the best possible combination
of options can be made. As is manifest from the policy, it enjoined
that water should be made available to water deficient areas by
transfer from other areas including transfers from one river basin
to another based on national perspectives after taking into
account the requirements of the areas/basins. That apart, making
provision for drinking water should be a primary consideration
which was also highlighted. As regards the ground-water
resources, it was marked that exploitation thereof should be so
regulated as not to exceed the recharging possibilities as also to
ensure social equity and to prevent ingress of sea water into sweet
water aquifers. In the realm of planning and operation of systems,
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water allocation priorities were broadly outlined as (a) drinking
water, (b) irrigation, (c) hydropower, (d) navigation and (e)
industrial and other uses. [Paras 372 and 373] [1096-F-H; 1097A-C]
7.8
The 1987 policy laid stress that in view of vital
importance of water for human and animal life, for maintaining
ecological balance and for economic and developmental activities
of all kinds and considering its increasing scarcity, the planning
and management of this resource and its optimal, economical and
equitable use has become a matter of utmost urgency. It
emphasized that the success of the National Water Policy would
depend entirely on the development and maintenance of a national
consensus and commitments to its underlying principles and
objectives. Significantly, the Policy, which is a national charter
for Planning and Development of Water Resources for its
disciplined and judicious utilization recognizes and accepts it to
be scarce and valuable bounty of nature to be developed,
conserved and put to planned use on an environmentally sound
basis with due regard to the needs of the State concerned. The
Policy, thus, sustains the concept of basin State as contemplated
in the Helsinki Rules, Campione Rules and Berlin Rules. [Para
374] [1097-D-F]
7.9
The National Water Policy of 2002 which is a revised
and updated form of the earlier model, reiterates the emphasis
on the need for planning, development and management of the
water resources from the national stand point. Pertaining to water
allocation priorities, this Policy added to the list, in particular,
ecology and agro industries and non-agricultural industries,
qualifying that the priorities as enumerated could be modified or
added if warranted by the specific considerations of the areas/
regions. The primacy of drinking water was reiterated. On the
aspect of ground water development, it was stated that a periodical
re-assessment of the ground water potential on the scientific basis
should be made taking into consideration the quality of water
available and the economic viability of its extraction. Same caution
against over-exploitation of ground water was sounded. It was,
inter alia, mandated that adequate safe drinking water facility
should be provided to the entire population, both in urban and in
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rural areas, and irrigation and multipurpose projects should
invariably include in it drinking water component wherever there
is no alternative source of drinking water. It was clarified that
drinking water needs of human beings and animals should be the
first charge on any available water. Qua irrigation, the Policy
stated that planning either in an individual project or in a basin as
a whole should take into account the irrigability of land, cost
effective irrigation options possible from all available sources of
water and appropriate irrigation techniques for optimising water
use efficiency. The aspect that the irrigation intensity should be
such as to extend the benefits of irrigation to a large number of
farm families as much as possible, keeping in view the need to
maximize production, was also underlined. It was most importantly
provided that water sharing/distribution amongst the States should
be guided by national perspective with due regard to the
availability of water resources and the needs within the river
basin. The Policy, therefore, did not bar as such the sharing or
allocation of water in areas within the basin State. In conclusion,
the Policy recorded that its success would depend entirely on
evolving and maintaining national consensus and commitment to
its underlying principles and objectives. It also laid emphasis on
the needs of the community that requires to be taken into account
for the development and management of water resources. [Para
376] [1098-A-G]
7.10 The national policies of the country therefore,
evidently supplement and consolidate the prescriptions of the
Helsinki Rules, Campione Rules and Berlin Rules in the matter
of ascertainment of reasonable and equitable share of water in an
inter-state river. [Para 377] [1098-H]
7.11 The Helsinki Rules and the other Rules envisage a
basin State on the issue of equitable apportionment of an interState river. Though the Rules predicate that in determining the
share of one basin State, the other co-basin States would not be
subjected to substantial injury, yet the clear emphasis is to fulfill
the economic and social needs of the population of the State and
in the sphere of irrigation, its farmer community. Indubitably, the
principle of apportionment would apply uniformly to all river basins
in a State. The sharing of an inter-State river, as the professed
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norms of distribution suggest, has to be with the spirit of
harmonious disposition and equanimous dispensation. The norms
or the factors suggested can never be exhaustive and designed
only a balanced framework of pragmatic measures to ensure
beneficial use of water resources in an inter-State river on needbased application thereof and reciprocal adjustments for common
good. In the regime of a welfare State wedded to the guarantees
enshrined in the National Charter, any yardstick for distribution
of any national asset like water would have to be essentially in
furtherance thereof. The criteria identified in the Rules and
supplemented by the national policies in letter and spirit, though
in quite detail, can only be construed as illustrative and cannot
be perceived as a strait-jacket formula or put in a compartment
of mathematical exactitude to exclude any other consideration
or exigency to effect a desirable apportionment of water of an
inter-State river depending on the prevalent eventualities. Having
regard to the geographic, hydrographic, hydrological,
hydrogeological, climatic, ecological and other fluvial phenomena
attendant on time, the spectrum of priorities and the factors
associated therewith are bound to vary. [Para 377] [1099-A-E]
7.12 While no precise formula can be adopted, there has to
be a sincere and pragmatic endeavour to have a rational amalgam
of globally accepted norms and the local necessities founded on
the doctrine of fairness and equity. The factors already
enumerated, may inter se demand precedence of one over the
other depending on the ground realities, the ultimate test being
to ensure that the allocations on the basis thereof in favour of
one basin State ought not to be substantially detrimental to the
co-basin States. The order of precedence in the areas of necessity,
as set out in the National Policy, is not incompatible with the
acknowledged determinants for ascertaining the reasonable and
equitable share of an inter-State river. Nevertheless, the weightage
of one item of need would depend in a given situation on the
degree and priority thereof thereby necessitating grant of
preference of one over the other in departure of the sequence
set out in the policy. This again is to underline the attribute of
variability in the approach of application of the otherwise identified
criteria, the ultimate goal being equitable apportionment of the
resources. This concept gains more significance where the
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resource is scarce and inadequate qua the demand thereof. It is
warrantable as the dispute involves the inhabitants of one State
with the inhabitants of another State. Such involvement by statutory
command engulfs the principle of obtaining situational adjustment
having due regard to priority. [Para 377] [1099-F-H; 1100-A-B]
7.13 The factors as set out in the Helsinki Rules and
endorsed as well as supplemented by the Campione Rules and
the Berlin Rules and further consolidated by our national policies
as above are efficient, rational, objective and pragmatic guidelines
to conduct any exercise for determining the reasonable and
equitable share of basin States in the water of an inter-state river
like Cauvery as in the present case. With these guidelines at
disposal, the endeavour has to be essentially to ensure an
appropriate balance of the genuine competing demands and
interests of the basin States. The balancing has to be done in a
pragmatic and feasible manner so that it will be ultimately
functional and meet the aspirations of the riparian States. In such
a working process, there has to be adjustment of the available
resources. That apart, the process indeed has to be informed
with egalitarian vision for achieving utilitarian ends keeping in
view the inclusive spirit and the pluralistic ethos. Thus viewed
and understood, periodical reviews to update the allocations
merited by changes in the aforementioned natural and
environmental phenomena bearing on the resources for supply
and resultant reorientation of the inter se needs of the basin States,
would have to be unfailingly undertaken on time. [Paras 377 and
378] [1100-C-F]
In Re: Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96 : [1991] 2 Suppl.
SCR 497 - referred to.
8. Determination of 'irrigated areas" in Tamil Nadu and
Karnataka:
8.1 The Tribunal, after adopting the principle of equitable
apportionment, in the process of computing the reasonable and
equitable shares of the basin States as the first initiative,
determined the irrigated areas of the States and in doing so, noted
from the report of the Cauvery Fact Finding Committee submitted
in the year 1972 that the utilization of waters of Tamil Nadu
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including Karaikal region of the Union Territory of Puducherry,
Mysore and Kerala had been 566.60 TMC, 176.82 TMC and 5
TMC respectively. In view of the fact that river Cauvery is deficit
in its water content compared to the demands of the riparian
States involved, restrictions and savings in the matter of use
thereof are not only necessary but also natural corollaries. In
that view of the matter, it is incumbent to identify the areas under
irrigation with the expansion thereof with time, together with the
crop pattern and the suitability thereof, having regard to the
extent of utilization of the deficient surface flow available. On
the basis of the reports of the various Committees and the
recorded data, the bearing of the 1924 Agreement in particular
over the march of events cannot also be totally disregarded. [Para
380] [1101-C-E, G-H; 1102-A]
In Re: Presidential Reference (Cauvery Water Disputes
Tribunal) 1993 (Supp) (1) SCC 96: [1991] 2 Suppl.
 SCR 497 - referred to.
8.2
The Tribunal, after taking into account all the factors,
vis-a-vis Tamil Nadu, applied the restrictions to work out the
irrigated area to which it would be entitled to assert its share of
allocation, namely, no area for summer paddy; area of summer
paddy raised prior to 1924 to be replaced by semi-dry crop; annual
intensity of irrigation to be restricted to 100%; cropping period
to be restricted within the irrigated season, i.e., 31st June to 31st
January and ambitious lift irrigation schemes to be discouraged.
It, thus, quantified such area for Tamil Nadu to be 24.71 lakh
acres against its claim of 29.26 lakh acres. As far as Karnataka is
concerned, the Tribunal noticed that in the pre 1924 Agreement
era, irrigation in the then State of Mysore was primarily from
direct diversion channels from the rivers together with the system
of tank irrigation and that in the absence of any reservoir, the
waters of Cauvery and its tributaries like Kabini, Hemawathi,
Harangi and Suvaranwathi used to flow through the State but their
ultimate destination was the Delta State of the then State of Madras
as a result whereof, even as admitted by the State of Tamil Nadu,
Karnataka could develop only 3.14 lakh acres of land by 1924.
This inability of the State of Karnataka to develop its land for
irrigation in the background of its persistent cavil of being
deprived of its legitimate share and use of the water of Cauvery
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cannot be ignored. It is a recorded fact that though under the
1924 Agreement, Karnataka in terms of the relevant provisions
thereof ought to have developed 7.45 lakh acres by 1974, it could
achieve only 2.15 lakh acres. However, the Tribunal in all allowed
18.85 lakh acres of area to Karnataka being under irrigation prior
to 1974 against its claim of 20.98 lakh acres.