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TMI Blog1991 (11) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... ve arisen with regard to certain aspects of the Order; WHEREAS, on 25 July 1991, the Governor of Karnataka promulgated the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 (hereinafter referred to as the Ordinance ), a copy whereof is annexed hereto; WHEREAS, doubts have been expressed with regard to the constitutional validity of the Ordinance and its provisions; WHEREAS, there is likelihood of the constitutional validity of the provisions of the Ordinance, and any action taken thereunder, being challenged in Courts of law involving protracted and avoidable litigation; WHEREAS, the said differences and doubts have given rise to a public controversy which may lead to undesirable consequences; AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have arisen and are of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon; NOW, THEREFORE, in exercise of the powers conferred upon me by Clause (1) of Article 143 of the Constitution of India, I, Ramaswamy Venkataraman, President of India, hereby refer the following question to the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mysore has increased to about 34,273 sq. kms. in the present State of Karnataka. 5. The contributions made to the flows of the Cauvery River by Karnataka, Tamil Nadu and Kerala, according to the State of Karnataka is 425 TMC, 252 TMC and 113 TMC respectively together amounting to 790 TMC. According to the State of Tamil Nadu, the contributions of the three States respectively are 392 TMC, 222 TMC and 126 TMC respectively together amounting to 740 TMC. The Study Team appointed by the Central Government in 1974 worked out the appropriations of the respective States as follows: Karnataka-177 TMC, Tamil Nadu including Pondicherry-489 TMC and Kerala-5 TMC. 6. In 1956 the Parliament enacted the River Boards Act, 1956 for the purpose of regulation and development of inter-State rivers and river valleys and also the Inter-State Water Disputes Act, 1956 for adjudication of disputes with regard to the use, distribution or control etc. of the said waters. In 1970 Tamil Nadu invoked the provisions of Section 3 of the Inter-State Water Disputes Act, 1956 and requested the Central Government for reference of the dispute between the two States, viz. Tamil Nadu and Karnataka to a Tribunal un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union Government, the negotiations were not fruitful. In 1983, Tamil Nadu Ryots Association presented a petition to this Court under Article 32 of the Constitution being Writ Petition No. 13347 of 1983. The petition sought issue of a writ of mandamus to the Central Government requiring it to refer the dispute to a Tribunal under the Act. The petition was also accompanied by an application seeking interim relief. The State of Tamil Nadu supported the Writ Petition. Notices were issued to the respondents including the Union Government and the State of Karanataka. The petition remained pending in this Court for nearly seven years. No application for interim relief was moved during this period. 11. Although the inter-State meetings continued to be held during this period, nothing worthwhile emerged out of them. Hence, in June 1986, the State of Tamil Nadu lodged a Letter of Request under Section 3 of the Act with the Central Government for the Constitution of a Tribunal and for reference of the water dispute for adjudication to it. In the said letter, Tamil Nadu primarily made a grievance against the construction of works in the Karnataka area and the appropriation of water upst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit their replies to the applications for interim reliefs made by Tamil Nadu and Pondicherry. By September 1990, all the disputant States submitted their first round of pleadings or statements of cases. By November 1990, Karnataka and Kerala also submitted their replies to the applications for interim reliefs. The Tribunal gave time to the States to submit their respective counter statements in reply to the Statements of cases filed earlier in the main dispute. 16. It appears that before the disputant states submitted their counter statements in the main dispute, the Tribunal heard the applications for interim reliefs since Tamil Nadu had, in the meanwhile, filed an application being CMP No. 9 of 1990 as an urgent petition to direct Karnataka as an emergent measure to release at least 20 TMC of water as the first instalment, pending final orders on their interim application CMP No. 4/90. It appears that this application was filed on the ground that the samba crop could not be sustained without additional supplies at Mettur reservoir in the Tamil Nadu State. Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary objection to the jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute which decision would then be final and binding on the parties. x x x From the letter dated 6.7.1986, which was the request made on behalf of the State of Tamil Nadu to the Central Government for referring the dispute to the Tribunal, it is clear that the dispute which has been referred to this Tribunal in regard to the executive action taken by the Karnataka State in constructing Kabini, Hemavathi, Harangi, Swarnavathi and other projects and expanding the yachts and the failure of the Karnataka Government to implement the agreements of 1892 and 1924 relating to the use, distribution and the control of Cauvery waters. No interim dispute in regard to the release of waters by the Karnataka Government from year to year subsequent to the date of the request made by the State of Tamil Nadu was at all referred to the Tribunal. The Tribunal has been called upon to decide the main water dispute, which, when adjudicated upon, would undoubtedly be binding on the parties. In view of the above, we are of the opinion that the Tribunal cannot entertain the prayer for interim relief unless the dispute relating to the same is specifically referred to the Tribunal. x x x The observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that since we have taken the view that in case a water dispute really arises and such water dispute could not be resolved by negotiations then it will be open to the Central Government to refer the said dispute to the Tribunal for adjudication, the question of not having a remedy for a wrong does not arise before the Tribunal. The Central Government if it finds that the dispute is connected with or related to the water dispute already referred to the Tribunal, it is open to it to refer the said dispute also to the Tribunal in regard to the granting of an interim relief. 17. In the view that it took, as above, the Tribunal held that it could not entertain the said applications for grant of interim reliefs as they were not maintainable in law, and dismissed the same. 3. Being aggrieved, the State of Tamil Nadu approached this Hon'ble Court by means of special leave petitions under Article 136 of the Constitution against the orders passed both in the original application for interim relief being CMP No. 4 of 1990 as well as in the application for urgent interim relief being CMP No. 9 of 1990. So did the Union Territory of Pondicherry against the order passed by the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already gravely affected in that the cultivation operations are getting long delayed, traditional double crop lands are getting reduced to single crop lands and crops even in the single crop lands are withering and falling for want of adequate wettings at crucial times. We are convinced that the in ordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay in adding to the injury caused to our existing irrigation. The Court then proceeded to observe as follows: The above passage clearly goes to show that the State of Tamilnadu was claiming for an immediate relief as year after year, the realisation of Mettur was falling fast and thousands of acres in their ayacut in the basin were forced to remain fallow. It was specifically mentioned that the inordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay is adding to the injury caused to their existing irrigation. The Tribunal was thus clearly wrong in holding that the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations on merits and by its order dated June 25, 1991 held as follows: When we are deliberating whether any emergent order ought to be passed, our prime consideration ought to be to preserve, as far as possible, pending final adjudication the rights of the parties and also to ensure that by unilateral action of one party other party is not prejudiced from getting appropriate relief at the time of the passing of the final orders. We ought to also endeavour to prevent the commission of any act by the parties which might impede the Tribunal from making final orders in conformity with the principles of fair and equitable distribution of the waters of this inter-State river. x x x At this stage it would be neither feasible nor reasonable to determine how to satisfy the needs of the each State to the greatest extent possible with a minimum of detriment to others. We do not also propose at this stage to enter into the question whether the present use of water of the river Cauvery either by the State of Tamil Nandu or the State of Karnataka is the most beneficial use to which the water could be put to. x x x We do not propose to examine at this stage the legality or justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, I, Khurshed Alam Khan, Governor of Karnataka, am pleased to promulgate the following Ordinance, namely: 1. Short title, extent and commencement: (1) This Ordinance may be called the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991. (2) It extends to the whole of the State of Karnataka. (3) It shall come into force at once. 2. Definition: Unless the context otherwise requires: (a) Cauvery basin means the basin area of the Cauvery river and its tributaries lying within the territory of the State of Karnataka. (b) Irrigable area means the areas specified in the Schedule. (c) Schedule means the Schedule annexed to this Ordinance. (d) Water year means the year commencing with the 1st of June of a Calendar year and ending with the 31st of May of the next Calendar year. 3. Protection of Irrigation in irrigable area: (1) It shall be the duty of the State Government to protect, preserve and maintain irrigation from the waters of the Cauvery river and its tributaries in the irrigable area under the various projects specified in the Schedule. (2) For the purpose of giving effect to Sub-section (1) the State Government may abstract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Act No. 27 of 1991. The provisions of the Act are a verbatim reproduction of the provisions of the Ordinance except that in Section 4 of the Act the words any court or are omitted and Section 7 is added repealing the Ordinance. The omission of the above words excludes this Court's order dated April 26, 1991 from the overriding effect of the said provision. Reference to the Ordinance hereafter will include reference to the Act also unless the context otherwise requires. 4. It is in the context of these developments that the President has made the Reference which is set out in the beginning. 5. Before us are arraigned the State of Tamil Nadu and the Union Territory of Pondicherry on the one hand the States of Karnataka and Kerala on the other with the Union of Indian taking no side on the issues arising out of the Reference. There are also interveners on both sides. The contentions of the parties are summarised hereafter. The contentions also include a plea on both sides not to answer either all or one or the other question raised in the Reference for reasons differently advanced. These pleas will also be dealt with at their proper places. Before we deal with the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contended, does not denude the States of the power to legislate under Entry 17, since it merely empowers the Union, if Parliament has by law declared it to be in public interest, that the 'regulation and development of inter-State rivers and river valleys should, to the extent the declaration permits, be taken under the control of the Union. On a plain reading of the said Entry it is evident that barring regulation and development' of an inter-State river, subject to the declaration, the Central Government is not conferred with the power to legislate on water, etc., which is within the exclusive domain of the State legislatures. The River Boards Act, 1956 being the only legislation made by Parliament under Entry 56, and the scope of the declaration in Section 2 thereof being limited 'to the extent hereinafter provided', that is to say provided by that statute, and no River Board having been constituted thus far in respect of and inter-State river under the said law, the power to legislate under Entry 17 is not whittled down or restricted. Thus, contends the State of Karnataka, the River Boards Act merely authorises the Union to set up a River Board with a view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Central Government shall refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication. On such Reference the Tribunal must investigate the matters referred to it and forward a report setting out the facts found by it and giving its decision on the matters referred to it. If upon consideration of the decision, the Central Government or any State Government is of opinion that anything contained therein requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, such Government may within three months from the decision again refer the matter for further consideration, and on such reference, the Tribunal may forward a further report giving such explanation and guidance as it deems fit and thereupon the decision of the Tribunal shall be deemed to be modified accordingly. Section 6 then enjoins upon the Central Government to publish the decision of the Tribunal in the Official Gazette and on such publication 'the decision shall be final and binding on the parties to the dispute and shall be given effect to by them'. It is contended by the State of Karnata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Act, do not contemplate reference of an interim relief matter nor can the same empower the Tribunal to make an interim order pendente lite. The Act has deliberately not conferred any power on the Tribunal to make an interim order for the simple reason that a water dispute has many ramifications, social, economic and political, and involves questions of equitable distribution of water which cannot be done without a full-fledged investigation of the relevant data-material including, statistical information. In the very nature of things, therefore, it is impossible to think that the Act envisaged the making of an interim order. While conceding that certain kinds of interlocutory orders which are processual in nature can be made by the Tribunal to effectuate the purpose of the Act, namely, adjudication of a water dispute, no interim relief or order can be granted which will affect the existing rights of the parties because that would in effect deprive the concerned State of the power to legislate in respect of water under Entry 17 and/or make executive orders in that behalf under Article 162 of the Constitution. The jurisdiction conferred on the Tribunal under the Act to adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd would, therefore, be binding on the parties. It is, however, the stand of Kerala that no specific reference for grant of interim relief was made to the Tribunal and hence the interim order of 25th June, 1991 does not constitute a report and a decision within the meaning of Section 5(2) and hence the Central Government is not expected to gazette the same. Unless the same is gazetted finality cannot attach to it nor can it bind the parties. Therefore, contends the State of Kerala, the Tribunal had no jurisdiction to grant interim relief which it has granted by its aforesaid interim order. Hence the said order has no efficacy in law and can be ignored. 29. On the question of issuance of the Ordinance, the State of Kerala contends, that such a legislation falls within the scope and ambit of Entry 17 and is, therefore, perfectly legal and constitutional and is not in any manner inconsistent with Entry 56 nor does it trench upon any part of the declaration in Section 2 of the River Boards Act or any of the provisions thereof. Thus according to Kerala, the legislative competence to pass such a statute vests in the State legislature under Entry 17 and, therefore, the Governor of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right depends. Article 131 begins with the words 'subject to the provisions of the Constitution' and hence it must be read subject to Article 262 of the Constitution. Article 262 enables Parliament to provide by law for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. That law may, notwithstanding anything contained in the Constitution, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to above. In exercise of power conferred by this provision., the Parliament enacted the Act and by Section 11 provided as under: Notwithstanding anything contained in any other law, 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 this Act. 32. While Article 262(2) begins with the words 'notwithstanding anything in this constitution', Section 11 begins with the words 'Notwithstanding anything contained in any other law' which conveys that all courts including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the view that this Court may take on the generality of the question referred for decision. It must be recalled that this Court in its judgment of 26th April, 1991 came to the conclusion that the reference made to the Tribunal included the question of grant of interim relief and this conclusion based on the interpretation of the terms of the reference dated 2nd June, 1990 read with letter dated 6th July, 1991 was clearly binding on the concerned parties and the Tribunal's interim order on the merits of the matter made in pursuance of this Court's directive to decide on merits is equally binding and cannot be disturbed in proceedings arising out of a Reference under Article 143(1) of the Constitution. If the question of grant of interim relief forms part of the Reference, the Tribunal is duty bound to decide the same and such decision would constitute a report under Section 5(2) of the Act which the Central Government would be duty bound to publish as required by Section 6 of the Act. It is further contended that in the view of the State of Tamil Nadu a Tribunal constituted under the Act has inherent jurisdiction to grant interim relief as pointed out earlier, whether o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... override or neutralise the law enacted by Parliament in exercise of power conferred by Article 262 (and not Article 246 read with the relevant entry in the Seventh Sechedule) of the Constitution. A State Legislature can 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 done under a Central law; (b) the impugned legislation purporting to be under Entry 17 of List II has extra-territorial operation, in that, it directly impinges on the rights of the people of Tamil Nadu to the use of Cauvery waters. (c) the impugned legislation is contrary to the Rule of Law and a power not comprehended even by Article 262 cannot be read into the legislative power of the State for it would pervert the basic concept of justice, and (d) the impugned legislation is violative of the fundamental rights of the inhabitants of Tamil Nadu guranteed by Articles 14 and 21 of the Constitution, in that, the action of Karnataka is wholly arbitrary and in total disregard of the right to life of those inhabitants in Tamil Nadu who survive on Cauvery waters. 37. The State of Tamil Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State as well as the farmers and other inhabitants who utilise the water from river Cauvery. It is contended that the said legislation is unconstitutional and is a piece of colourable legislation for the following reasons: (a) the power of the State Legislature to enact a law on the subject falling in Entry 17 List II, is subject to the provisions of Entry 56 in List I, and once Parliament had made a declaration in that behalf in Section 2 of the River Boards Act, the State Legislature was not competent to enact the impugned law, (b) once the Central Government had entrusted the Cauvery water dispute to an independent Tribunal under the provisions of the Act, it was not constitutionally permissible for Karnataka to enact the impugned law, (c) in the case of flowing water the riparian States have no ownership or proprietary right therein except in the usufruct thereof and, therefore, the power to legislate therein under Entry 17 of List II can extend to only the unfructurary right subject to the right of a riparian State to get the customary quantity of water, (d) the objective of the impugned legislation is to set at naught the interim order of the Tribunal and to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant interim relief does not detract from the view that such power inheres in a Tribunal which is called upon to discharge an essentially judicial function. For discharging such a function it is essential that the Tribunal must possess inherent power to pass interim orders from time to time in aid of adjudication. The Union Territory of Pondicherry is, therefore, of the view that Question 3 must be answered in the affirmative. 43. Six intervention applications have been filed by different persons and bodies from Karnataka including the Advocate General of the State in support of the case of Karnataka raising contentions more or less similar to those raised by the State itself. One intervention application is filed by the Tamil Nadu Society which had preferred the original Writ Petition in which a mandate to constitute a Tribunal under the Act was given. The contentions raised by the interveners are covered in the written submissions filed by the State of Tamil Nadu and need not be reiterated. The said intervener has also filed written submissions through counsel Shri Ashok Sen which we shall deal with in the course of this judgment. 44. Of the three questions which have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions advanced on this question it is first necessary to analyse the relevant provisions of the Constitution. 46. The distribution of legislative powers is provided for in Chapter I of Part XI of the Constitution. Article 245, inter alia states that subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of the State may make laws for the whole or any part of the State. Article 246 provides, among other things, that subject to Clauses (1) and (2) of the said Article, the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List in the Seventh Schedule. Clauses (1) and (2) of the said Article refer to the Parliament's exclusive powers to make laws with respect to any of the matters enumerated in the Union List and the power of the Parliament and the legislature of the State to make laws with respect to any of the matters enumerated in the Concurrent List. Article 248 gives the Parliament exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 17. However, such a legislation enacted under Entry 14 in so far as it relates to inter-State river water and its different uses and the manners of using it, would also be, it is needless to say, subject to the provisions of Entry 56. So also Entry 18 of List II which speaks, among other things, of land improvement which may give the State Legislature the powers to enact similar legislation as under Entries 14 and 17 and subject to the same restrictions. 52. Entry 97 of the Union List is residuary and under it the Union has the power to make legislation in respect of any matter touching inter-State river water which is not enumerated in the State List or the Concurrent List. Correspondingly, the State legislature cannot legislate in relation to the said aspects or matters. 8. Article 131 of the Constitution deals with original jurisdiction of the Supreme Court and states as follows: 131. Original Jurisdiction of the Supreme Court: Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute- (a) between the Government of India and one or more States; or (b) between the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka was satisfied that circumstances existed which rendered it necessary for him to take immediate action for the said protection and preservation. The irrigable areas of which protection and preservation is sought by the Ordinance are mentioned in the Schedule to the Ordinance. Admittedly the Schedule includes the irrigable area as existing in 1972 during the tenure of the agreement of 1924 between Karnataka and Tamil Nadu as well as the increase in the same since 1972 till the date of the Ordinance as well as the areas which are committed to be brought under irrigation on account of some of the projects mentioned in Column II of the Schedule. Clause 3(1) of the Ordinance then makes a declaration of the duty of the State Government to protect, preserve and maintain irrigation from the waters of the Cauvery river and its tributaries in the said irrigable area. Sub-clause (2) of the said clause then gives powers to the State Government to abstract or cause to be abstracted during every water year (which is defined as the year commencing with Ist of June of a calendar year and ending with 31st May of next calendar year), such quantity of water as it may deem requisite, from the fl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal appointed under a law of the Parliament. This position is not disputed before us on behalf of the State of Karnataka. The other effect of the Ordinance is to reserve to the State of Karnataka exclusively the right to appropriate as much of the water of river Cauvery and its tributaries as it deems requisite and in a manner and at periods it deems fit and proper, although pending the final adjudication by the Tribunal. 57. It cannot be disputed that the Act, viz., the Inter-State Water Disputes Act, 1956 is not a legislation under Entry 56. In the first instance Entry 56 speaks of regulation and development of inter-State rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Secondly, and even assuming that the expression regulation and development would in its width, include resolution of disputes arising therefrom and a provision for adjudicating them, the Act does not make the declaration required by 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. Thirdly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 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 inter-State river as a whole as indeed it cannot, for a State can only deal with water within its territory. It is necessary to bear in mind these distinctions between Article 262, Entry 56 and Entry 17 as the arguments and counter-arguments on the validity of the Ordinance have a bearing on them. 12. We have already pointed out another important aspect of Article 262, viz., Clause (2) of the Article provides that notwithstanding any other provision in the Constitution, Parliament may by law exclude the jurisdiction of any court including the Supreme Court in respect of any dispute or complaint for the adjudication of which the provision is made in such law. We have also noted that Section 11 of the Inter-State Water Disputes Act makes such a provision. 13. The said Act, as its preamble shows, is an Act to provide for the adjudication of disputes relating to waters of inter-State rivers and river valleys . Clause (c) of Section 2 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputes or in any manner affecting or interferring with the adjudication or adjudicatory process of the machinery for 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 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 extraterritorial in nature and, therefore, beyond its competence. 14. Shri Venugopal has in this connection urged that it is Entry 97 of the Union List which deals with the topic of the use, distribution and control of waters of an inter-State river. The use, distribution and control of the waters of such rivers, by itself is not a topic which is covered by Article 262. It is also, according to him, not a topic covered by Entry 56 which only speaks of regulation and development of inter-State rivers and river valleys meaning thereby the entirety of the rivers and river valleys and not the waters at or in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above analysis of the relevant legal provisions dealing with the inter-State rivers and river valleys and their waters shows that the Act, viz., the Inter-State Water Disputes Act, 1956 can be enacted and has been enacted only under Article 262 of the Constitution. It has not been enacted under Entry 56 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. 15. It will be pertinent at this stage also to note the true legal position about the inter-State river water and the rights of the riparian States to the same. In State of Kansas v. State of Colorado, [206] US 46 the Supreme Court of the United States has in this connection observed as follows: One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others and is bound to yield its own view to none. the action of one State reaches, through the agency of natural laws into the territory of another State, the question of the extent and the limitation of the rights of the two States b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the respective contentions of the parties. 17. The Ordinance is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz., the Inter-State Water Disputes Act which legislation has been made under Article 262 of the Constitution. As has been pointed out above, while analysing the provisions of the Ordinance, its obvious purpose is to nullify the effect of the interim order passed by the Tribunal on 25th June, 1991. The Ordinance makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of Karnataka show that since according to the State of Karnataka the Tribunal has no power to pass any interim order or grant any interim relief as it has done by the order of 25th June, 1991, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latures under the Constitution have, within the prescribed limits, power to make laws prospectively as well as retrospectively. By exercise of those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legislature in the country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts. Consequently, the provisions of Sub-section (3) of Section 152A were held repugnant to the Constitution and were struck down. To the same effect is another decision of this Court in Madan Mohan Pathak v. Union of India and Ors. etc. . In this case a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a decision of the High Court of Calcutta. This settlement was sought to be scuttled by the Corporation on the ground that they had received instructions from the Central Government that no payment of bonus should be made by the Corporation to its employees without getting the same cleared by the Government. The employees, therefore, moved the High Court, and the High Court allowed the petition. Against that, a Letters P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. If the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it. it would sound the death-knell of the rule of law. The rule of law would be meaningless as it would be open to the State Government to defy the law and yet get away with it. The proviso to Clause (5) of Article 371-D was therefore, violative of the basic structure doctrine. 65. The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal. 66. The effect of the provisions of Section 11 of the present Act, viz., the Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of our findings as above on the unconstitutionality of the Ordinance, it is not necessary for us to deal with the contention advanced on behalf of Tamil Nadu and Pondicherry that the Ordinance is unconstitutional also because it is repugnant to the provisions of the River Boards Act, 1956 which is admittedly enacted under Entry 56. 19. We also do not propose to deal with the contentions advanced on behalf of both sides with reference to Articles 19(1)(g) and 21 of the Constitution. On behalf of Karnataka the said Articles are invoked to support the Ordinance contending that the Ordinance has been issued to protect the fundamental rights of its inhabitants guaranteed to them by the said Articles which rights were otherwise been denied by the Tribunals' order of 25th June, 1991. As against it, it was contended on behalf of Tamil Nadu that it was the Ordinance which was designed to deny to its inhabitants the said rights. Underlying the contentions of both is the presumption that the Tribunal's order denies to Karnataka and ensures to Tamil Nadu the equitable share in the river water. To deal with the said contentions is, therefore, to deal with the factual merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt by the said decision has kept open the question, viz., whether the Tribunal has incidental, ancillary, inherent or implied power to grant the interim relief when no reference for grant of such relief is made to it, it has in terms concluded the second part of the question. We cannot, therefore, countenance a situation whereby Question 3 and for that matter Questions 1 and 2 may be so construed as to invite our opinion on the said decision of this Court. That would obviously be tantamount to our sitting in appeal on the said decision which it is impermissible for us to do even in adjudicatory jurisdiction. Nor is it competent for the President to invest us with an appellate jurisdiction over the said decision through a Reference under Article 143 of the Constitution. 70. Shri Nariman, however, contended that the President can refer any question of law under Article 143 and, therefore, also ask this Court to reconsider any of its decisions. For this purpose, he relied upon the language of Clause (1) of Article 143 which is as follows: 143. Power of president to consult Supreme Court-(1) If at any time it appears to the President that a question of law or fact has arisen, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the same parties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143 it would be a serious inroad into the independence of judiciary. 72. So far as the opinion expressed by this Court in re The Delhi Laws Act, 1912 (supra) is concerned, as the Reference itself makes clear, what was referred was a doubt expressed by the President on the decision of the Federal Court in Jatindra Nath Gupta v. The Province of Bihar and Ors. [1949] FCR 595 which was delivered on 20th May, 1949. The Federal Court at that time was not the apex court. Upto 10th October, 1949, the appeals from its decisions lay to the Privy Council including the appeal from the decision in question. The decisions of the Federal Court were not binding on the Supreme Court as held in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors., . Hence it was not a case where the President had referred to this Court for its opinion a decision which had become a law of the land. Hence the case in re The Delhi Laws Act, 1912 (supra) does not support the contention. 73. The provisions of Clause (2) of Article 374 of the Constitution also do not help Shri Nariman's con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Case No. 3 of 1983 arising out of a complaint filed by a private individual pending in the court of Special Judge, Greater Bombay and transferring the same to the High Court of Bombay in breach of Section 7(1) of the Criminal Law Amendment Act, 1952 (which mandates that the offences as in the said case shall be tried by a Special Judge only) thereby denying at least one right of appeal to the appellant, was violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal and, (ii) if such directions were not valid or legal, whether in view of the subsequent orders passed by this Court on 17th of April, 1984 in a writ petition challenging the validity of the order and judgment of this Court in R.S. Nayak's case whereby this Court had dismissed the writ petition without prejudice to the right of the petitioner to approach this Court with an appropriate review petition or to file any other application which he may be entitled in law to file, the appeal filed was sustainable and the grounds of the appeal were justiciable. The latter question was further explained by stating that the question was whether the directions given in R.S. Nayak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a right of appeal to the High Court and thus were prejudicial to him. There was, therefore, a manifest breach of the rule of audi alterant partem. Secondly, while giving the impugned directions, the Court had not noticed that under the said Act of 1952, the Special Judge had an exclusive jurisdiction to try the offence in question and this being a legislative provision, this Court could not confer the said jurisdiction on the High Court. The Court also pointed out that to the extent that the case was withdrawn from the Special Judge and sent to the High Court, both Articles 14 and 21 were violated. The appellant was discriminated against and the appellant's right of appeal which was an aspect of Article 21 was affected. It would, thus, appear that not only the directions given by this Court were without jurisdiction but they were also per incuriam and in breach of the principles of natural justice. They were further violative of the appellant's fundamental rights under Articles 14 and 21 of the Constitution. None of the said defects exists in the decision of this Court dated April 26, 1991. It cannot be said that this Court had not noticed the relevant provisions of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n referred by the Central Government to the Tribunal and directed the Tribunal to consider the request on merits, the same being a part of the Reference. 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. 26. One of the contentions advanced in this behalf was that the Order of the Tribunal dated June 25, 1991 does not purport to be and does not state to be a report and decision. It only states that it is an order. Secondly, the said order cannot be report and decision within the meaning of Section 5(2) of the Act because: (i) the Tribunal can make report only after final adjudication of the dispute and there cannot be adjudication without investigation. There is no provision for interim investigation and interim finding and report; (ii) the Tribunal could not have made the report because its own showing: (a) pleadings were not complete, parties had not yet placed on record all their documents and papers etc.; (b) there was no investigation of the matters, the investigation could have been done only after disclosure of documents follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essor to the respective parties and whether it had heard them on the same before passing the Order in question. The limited question we are required to answer is whether the order granting interim relief is a report and a decision within the meaning of Section 5(2) and is required to be published in the official Gazette under Section 6 of the Act. It is needless to observe in this connection that the scope of the investigation that a Tribunal or a court makes at the stage of passing an interim order is limited compared to that made before making the final adjudication. The extent and the nature of the investigation and the degree of satisfaction required for granting or rejecting the application for interim relief would depend upon the nature of the dispute and the circumstances in each case. No hard and fast rule can be laid down in this respect. However, no Tribunal or court is prevented or prohibited from passing interim order on the ground that it does not have at that stage all the material required to take the final decision. To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said provisions. The Central Government or any State Government after considering even such decision may require an explanation or guidance from the Tribunal as stated in the said provisions and such explanation and guidance may be sought within three months from the date of such decision. The Tribunal may then reconsider the decision and forward to the Central Government a further report giving such explanation or guidance as it deems fit. In such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective. We see, therefore, no reason why the provisions of Section 5(3) should prevent or incapacitate the Tribunal from passing the interim order. Once a decision, whether interim or final, is made under Section 5(2) it attracts the provisions both of Sub-section (3) of that Section as well as the provisions of Section 6 of the Act. 30. As pointed out earlier, the present Order having been made pursuant to the decision of this Court dated April 26, 1991 in C.As. Nos. 303-04 of 1991 on a matter which was part of the Reference as held by this Court in the said decision, cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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