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TMI Blog2000 (4) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... planning for erection of big projects for proper utilization of the waters of Krishna basin and in July, 1951, a memorandum of agreement had been drawn up for apportionment of the available supply of Krishna river system among the four riparian States namely, States of Bombay, Hyderabad, Madras and Mysore. It appears that the said memorandum of agreement had been drawn up to remain valid for a period of 25 years and even at that point of time, the State of Mysore refused to ratify the agreement. After implementation of the recommendations of the States Reorganisation Act, in the year 1956, the Krishna basin came to be controlled by the States of Bombay, Mysore and Andhra Pradesh, which became the riparian States. Each of these States became active for exercising their right share over the water of Krishna valley and the Central Water and Power Commission had drawn up a scheme for re-allocation of the Krishna water. That however was not acceptable to the States and no agreement between the States could be reached. Whenever any of the riparian State would come up with major projects, the other States would object to the same. By undertaking the construction of large projects by diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or further consideration under Section 5(3) of the Act and the tribunal on consideration of those references submitted its further report giving such explanations of guidance, as the tribunal deemed fit on the matters referred to it under Section 5(3) on 27th of May, 1976. It may be stated that the original report dated 24th of December, 1973 contained the Final Order of the tribunal and the further report dated 27th of May, 1976 also contained the modified Final Order, which modification was necessary because of explanations given to references made by different States under Section 5(3) of the Act. The Central Government construed the aforesaid Final Order to be the decision of the tribunal and accordingly, published the same in the Extraordinary Gazette dated 31st of May, 1976 and on such publication, the said Final Order has statutorily become final and binding oh the parties to the dispute. 2. In the Report of the tribunal as well as in the further Report, submitted by the tribunal, two Schemes have been evolved - Scheme "A" and Scheme "B". On the basis of agreement between all the States, the availability of water in Krishna basin was found out at 2060 T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it fit to leave the matter either to the good sense of the rival States or for the Parliament to make a legislation to that effect under Entry 56 of List I of the Seventh Schedule to the Constitution. The State of Karnataka however being of the opinion that Scheme "B" having formed a part of the decision of the tribunal was also required to be notified by the Central Government under Section 6 of the Act, making it binding on the parties, and the same not having been done, filed the present suit on 1st of March, 1997, impleading the State of Andhra Pradesh, the State of Maharashtra and the Union of India as party defendants, invoking the jurisdiction of this Court under Article 131 of the Constitution, seeking relief for a decree that the surplus water in river Krishna i.e., in excess of 2060 TMC at 75% dependability be shared in accordance with the determinations and directions of the tribunal, contained in its report and further report and; a declaration that defendant No. 1 State of Andhra Pradesh is not entitled to insist on its right to use the surplus water i.e., in excess of 2060 TMC at 75% dependability, so long as Scheme "B" framed by the tribunal is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o averred that clarificatory applications were filed before the tribunal under Section 5(3) of the Act in respect of Scheme "B" and the tribunal did entertain the same and did answer the clarifications sought for by giving explanations and or modifications, to the original scheme and, therefore, the tribunal itself accepted the position that Scheme "B" contained in the original report is also a decision of the tribunal which could be clarified or explained on an application being filed under Section 5(3) of the Act. The plaint then, narrates as to how in the further report dated 27th of May, 1976, the tribunal investigated into and determined the shares of respective States in the surplus flows in excess of 2060 T.M.C. and how ultimately a comprehensive Scheme "B" was drawn up for fuller and better utilisation of all the waters in every water year and yet the same could not be given effect to as the tribunal thought it improper to constitute an authority in the absence of agreement between all the riparian States. It is in this context the tribunal had observed that it is unwise and impracticable to impose an administrative authority by a judicial decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g not agreed to, the Court would not be competent to direct the Parliament to have a legislation and, therefore, the relief sought for cannot be granted in the suit. It has been further averred that in view of Clause V (c) of the Final Order, which has been notified in the official Gazette, the State of Andhra Pradesh is entitled to use any water, which may be flowing in the river Krishna, so that the same would not be wasted by entering the sea and, therefore, the prayer for injuncting the State of Andhra Pradesh in going ahead with several projects is not entertainable. The defendant No. 1 further asserts that Scheme "A" having been acted upon by the parties for over two decades and under the said Scheme review having been provided for after 31st of May, 2000, the question of implementation of Scheme "B" at this length of time is not only inequitable but also wholly uncalled for. While refuting the assertion made in different paragraphs of the plaint, it has been reiterated that Scheme "B" never formed part of the decision and as such question of its implementation does not arise and further Section 6(A) of the Act not being there on the statute book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharashtra is that until and unless a chain of carry over reservoirs in entire Krishna basin are erected, the question of implementation of Scheme "B" would not arise and since the said carry over reservoir have not been constructed as yet, the prayer for implementation of Scheme "B" is premature. The said defendant also averred that the relief sought for is essentially a review of the Final Order and there were no circumstances justifying the prayer for implementation of Scheme "B", particularly, when a review is provided after 31st of May, 2000, which is quite near. The State of Maharashtra defendant No. 2 reiterates the stand of the Andhra Pradesh, defendant No. 1 to the effect that it is the tribunal's decision in term of Scheme "A", which is final and binding order on all States and not the framing of Scheme "B" contained in the report of the said tribunal. 6. Union of India, defendant No. 3, in its written statement took the stand that the suit as framed is not maintainable by virtue of Section 11 of the Act read with Article 262 of the Constitution. So far as the user of water by the State of Andhra Pradesh is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al by framing a scheme? (KAR - as modified by A.P.) 9. Whether the right of Andhra Pradesh to utilise surplus waters in terms of the liberty granted by the decisions of the Tribunal, is reviewable in the present proceedings? (A.P.) 10. Whether the liberty to use surplus water under the decision of the KWDT precludes utilisation of surplus water by A.P., by means of projects of permanent nature? (KAR as modified by A.P.) 11. Whether the decision of the KWDT entitles the State of Andhra Pradesh to execute the following projects: (KAR - as modified by (A.P.) (a) Telugu Ganga Project (b) Srisailam Right Bank Canal (c) Srisailam Left Bank Canal (d) Bhima Lift Irrigation (e) Pulichintala Diversion 12. Is not the suit of the Plaintiff unnecessary and premature ads there can be review of the orders of the Tribunal after A.D. 2000? (MAH) 13. To what reliefs, if any, the Plaintiff is entitled to? (A.P.) ISSUES 4, 5 AND 7. 8. These three issues are taken up together as they are inter-linked and in fact the fete of the suit largely depends upon the answer to the aforesaid issues. Mr. Nariman, the learned senior counsel, appearing for the plaintiff -State of Karnataka cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament." It is difficult to conceive that Scheme "B" was not the decision of the tribunal. In fact the tribunal itself came to the conclusion that Scheme "B" is more comprehensive and provides for more equitable mode of utilisation of the waters of river Krishna and yet refrained from making it a part of the Final Order because a Monitoring Authority could not be constituted due to lack of agreement between the riparian States nor was it wise and practical to impose a Monitoring Authority without the consent of the parties and in this view of the matter Scheme "B" must be held to be a decision of the tribunal adjudicating the shares of each of the States in the water of river Krishna, making the appointment, both in relation to surplus as well as the deficit. Mr. Nariman, the learned senior counsel, also urged that the three States Maharashtra, the then Mysore (presently Karnataka) and Andhra Pradesh having themselves consented to, and having prayed for the method of allocation to be adopted by the tribunal to the effect: (i) m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other hand contends that the plaintiff in his plaint also has not averred that Scheme "B" is a decision of the tribunal. According to the learned Counsel the plaint read as a whole indicates that the plaintiff wanted enforcement of both Scheme "A" and Scheme "B" and thus the relief sought for is amalgam of both these Schemes favourable to the plaintiff - State and not necessarily the implementation of Scheme "B" and this has purposely been done as the plaintiff was well aware of the fact that the said Scheme "B" does not form a part of the decision. In this connection, the learned Counsel relied upon the assertions made in paragraph 2(b) of the plaint, which really deals with Scheme "A" and not Scheme "B". He also relied upon the assertions made in paragraph 6(1) wherein the plaintiff itself has averred that the tribunal made Scheme "A" as part of its final decision and left the Scheme "B" to the good sense of the parties or to the wisdom of Parliament. Mr. Parasaran also with reference to assertion made in paragraph 21 of the plaint contends that according to the plaintiff the tribunal mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said Scheme "B" is the decision of the tribunal. Mr. Parasaran further contended that in the report itself, the tribunal having considered the two schemes- Scheme "A" and Scheme "B" and under Scheme "B", the moment the scheme is given effect to, the Scheme "A" ceases to be operative and effective and the tribunal having ultimately opted to make Scheme "A" as Final Order, which could be implemented, it is not possible to contend that Scheme "B" evolved by the tribunal is also a decision of the tribunal. 10. Mr. Andhyarujina, the learned senior counsel, appearing for the State of Maharashtra, Defendant No. 2 supported the stand of the State of Andhra Pradesh and contended that Scheme "B" cannot be held to be a decision of the tribunal. According to the learned Counsel, what can be held to be a decision of the tribunal is what the tribunal himself considered to have binding effect and in this view of the matter, the tribunal having itself said that it is Scheme "A" which formed the part of the Final Order and which can be implemented, immediately on being notified, it is abundantly clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act provides under what conditions, a State can make a complaint and request to the Central Government for referring a dispute to a tribunal for adjudication. Section 4 provides for Constitution of the tribunal by the Central Government and Section 5 provides for adjudication of the dispute by the tribunal. Section 5(2) empowers the tribunal to investigate the matters referred to it and then forward to the Central Government, a report, setting out the facts as found by it and giving its decision of the matters referred to it. Thus the report required to be given by the tribunal after investigation under Section 5(2) of the Act must contain the facts as found by it as well as the decision of the matters referred to the tribunal. A distinction, therefore, has been drawn by the legislature on the two expressions used in Section 5(2) of the Act, namely 'facts as found' and 'decision of the matters referred to'. The crucial question which has to be answered in the aforesaid three issues, which have been taken together is whether Scheme "B" considered and evolved by the tribunal would come within the expression 'facts as found' or the 'decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dependable yield of the river Krishna up to Vijaywada is 2060 ' TMC, which has been indicated in Chapter IX itself. The tribunal then proceeds with embarking up to the difficult and delicate task of division of waters of river Krishna and what directions ultimately could be given for equitable apportionment of the beneficial use of the waters of Krishna river and the river valley. In Chapter XIV of the report dated 24th of December, 1973, Exh. PK1, the tribunal ultimately summarised as to how each State claimed equitable share in the dependable flow and also in the water in excess over the dependable flow. It also considered the evidence of expert witness, adduced by the parties, indicating the advantage that will accrue by carry over storage, made in the Krishna basin. The tribunal also thought over the matter as to whether the scheme for division of water should endure forever or there should be a room for review and ultimately was of the opinion that a review and modification of the allocation may become necessary to keep pace with the changing conditions. It also provided for a review of the order of the tribunal at any time after 31st of May, 2000. After making such gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputes Act, 1956, and Scheme "B" may be brought into operation in case the States themselves constitute an Inter-State Administrative Authority, which may be called the Krishna Valley Authority by agreement between them or in case, such an authority is constituted by legislation made by Parliament. The aforesaid conclusion of the tribunal, unequivocally indicates that it is Scheme "A" alone which has been made the decision of the tribunal and the tribunal nomenclature the same to be the Final Order, which order in its turn has been notified in the Official Gazette by the Central Government under Section 6 of the Act. At Page 182 of the Report Exh. PK1, the tribunal itself has given a complete picture to facilitate further discussion by setting out different clauses of the Final Order which according to the tribunal embodies all the provisions on the subject of apportionment of the water of river Krishna between the states of Maharashtra, Mysore and Andhra Pradesh and then it is stated "these provisions of the Final Order cover all matters mentioned in Issue No. Wand its sub-issues and issue No. II, is, therefore, decided as provided in these clauses of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted. The Tribunal in considering different proposals submitted by the States came to hold "unless a joint control body or inter State authority was established, it would be difficult to divide the waters of river Krishna between the parties in every water year on the lines suggested by the parties." (at page 161 Ex. PK-1). The Tribunal also recorded a finding: It is not possible for us to take the view that we can infer the consent of the parties from Ex. MRK-340 filed on 4th May, 1973. 13. It its further Report after answering the references made to it under Section 5(3) of the Act, in Exhibit PK-2 the Tribunal negatived the contentions of the State of Karnataka that allocation of water under Scheme "A" is not the Scheme for the division of water in accordance with the provisions of the Act. In said PK-2 at page 24 the Tribunal did observe: The apportionment of water of the inter-State rive Krishna must be adapted to the peculiar characteristics of the river system. We may also point out that until 1971-72 less than 1000 T.M.C. was utilised in the entire Krishna basin, and until the entire dependable supply of 2060 TMC is fully utilised, the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision but that by itself, in our opinion, will not clothe Scheme 'B' with the character of a decision of the Tribunal. Mr. Nariman may be right in his submission that there has been an adjudication by the Tribunal in evolving Scheme 'B' indicating the manner in which the water of said river Krishna could be shared by three States in surplus and deficit water year, but every adjudication made by the Tribunal cannot be held to be a decision within the meaning of Section 5(2) unless such adjudication is capable of being implemented on its own and applying the aforesaid test Scheme 'B' not being capable of being implemented on its own so long as the back bone of the Scheme, namely, the Constitution of Monitoring Authority is not agreed to the said Scheme cannot be held to be a decision within the meaning of Section 5(2) of the Act. In the aforesaid premises, we answer aforesaid three issues by holding that the Scheme 'B' framed by the Tribunal is not the decision of the Tribunal and as such, was not required to be notified under Section 6 and, consequently cannot be enforced at the behest of the plaintiff. The issues are accordingly answered against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, though it may not strictly be binding on it. Our aforesaid observations on Scheme-B be understood in that light. Needless to mention that in course of proceedings before the Tribunal not only the three riparian States had requested the Tribunal by submitting a document Ex. MRK-340 on 4th May, 1973, indicating the principles of allocation signed by three counsel appearing for the three States which, however, was not agreed to later on, but also the learned Counsel appearing for the Union of India had submitted before the Tribunal when the Tribunal was considering the clarificatory applications filed by different States on 8th May, 1975, to the effect: The Government of India have examined both Schemes 'B' and "A'. They feel that Scheme 'B' is better and earlier to implement than scheme 'A'. If Scheme 'B' comes as part of the final order of this Hon'ble Tribunal, the Government of India will take necessary steps for putting it into operation. Scheme B' may be put as part of the final order in the manner as the Hon'ble Tribunal feels fit. We should like to have a complete scheme formulated by this Hon'ble Tribunal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, in fact, the relief sought for by the plaintiff-State tantamounts to a fresh water dispute. Learned Solicitor General contends that the language of Section 2(c) read with Section 3 is wide enough to enable any riparian State to raise a dispute in relation to the use, control or distribution of the waters of an Inter-State river and the machinery for resolution of such a dispute is referable to Article 262 of the Constitution, which provision manifests an intent to insulate the Courts from disputes which may assume political overtones and applying the test to the case in hand, the conclusion is irresistible that this Court will not be entitled to entertain a suit under Article 131 of the Constitution. 21. Mr. Parasar'an appearing for the State of Andhra Pradesh supported the argument advanced by Mr. Salve, the learned Solicitor General and contended, that the suit being one not merely for implementation of Scheme 'B', as contended by the plaintiff, but an amalgam of both the Schemes, sharing of 2060 TMC under Scheme 'A' and sharing of surplus above 2060 TMC as per Scheme 'B' it is obviously an innovation which the Tribunal has itself not thought of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision Bhagwati, J., as he then was, analysing the provisions of Article 131 of the Constitution came to hold that there are two limitations in regard to the nature of the suit whether can be entertained by the Supreme Court under the Article. One is in regard to parties and the other is in regard to the subject matter. In the present case, so far as parties are concerned, it is covered by Clauses (a) and (c), inasmuch as the grievances of the plaintiff is that an adjudicated decision of the Tribunal in evolving Scheme 'B' was not notified by the Government of India under Section 6 of the Act and, as such, a dispute between the plaintiff and the defendant No. 3 - the Union of India and further it is a dispute between the State of Karnataka and the State of Andhra Pradesh under Clause (c) of Article 131 as the said State of Andhra Pradesh did not agree to the Constitution of a Monitoring Authority for implementation of an adjudicated decision of the Tribunal by evolving Scheme 'B'. In the very same decision Bhagwati, J., also further indicated that the Supreme Court would have the power to give whatever reliefs are necessary for enforcement of legal right claimed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the parties regarding a question on which the existence or extent of a legal right depends. A challenge by the State Government to the authority of the Central Government to appoint a Commission of Inquiry clearly involves a question on which the existence or extent of the legal right of the Central Government to appoint the Commission of Inquiry depends and that is enough to sustain the proceeding brought by the State under Article 131 of the Constitution. Far from its being a case of the "omission of the obvious". Justifying the reading of words into Article 131 which are not there, I consider that the Constitution has purposefully conferred on this Court a jurisdiction which is untrammelled by considerations which fetter the jurisdiction of a court of first instance, which entertains and tries suits of a civil nature. The very nature of the disputes arising under Article 131 is different, both In form and substance, from the nature of claims which require adjudication in ordinary suits. 22. The learned judge had also further observed: A proceeding under Article 131 stands in sharp contrast with an ordinary civil suit. The competition in such a proceeding is bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication of any water dispute or a dispute relating to distribution or control of water in any inter-State river or river valley, then such a dispute cannot be raised before the Supreme Court under Article 131, even if the dispute be one between the center or the State or between the two States. In exercise of Constitutional power under Article 262(1), the Parliament, in fact has enacted the law called the Inter-State Water Disputes Act, 1956 and Section 11 of the said Act provides that neither the Supreme Court nor any other Court shall have jurisdiction in respect of any water dispute which could be referred to a tribunal under the Act. This being the position, what is necessary to be found out is whether the assertions made in the plaint filed by the State of Karnataka and the relief sought for, by any stretch of imagination can be held to be a water dispute, which could be referred to the tribunal, so as to oust the jurisdiction of the Supreme Court under Article 131. On examining the averments made in the plaint and the relief sought for, by the plaintiff- State, we are of the considered opinion that what really the State of Karnataka wants is a direction form the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of the Act but such conclusion of ours, would not necessarily lead to the conclusion that the suit itself gets barred under Section 11 of the Act, as contended by the learned Solicitor General. The question whether the jurisdiction of this Court gets barred in view of Section 11 of the Act has to be answered by examining the assertions in the plaint and the relief sought for and by doing so, we are not in a position to hold that the assertions in the plaint together with the relief sought for, constitute a dispute under Section 2(c) of the Act, thereby ousting the jurisdiction of this Court under Section 11. We, therefore, hold this issue of maintainability in favour of the plaintiff and against the defendants. ISSUE NO. 6 25. The aforesaid issue has been struck on the assertions made in the written statement of the State of Maharashtra. It has been averred in the written statement of the State of Maharashtra that Scheme "A" having been implemented from the date of its notification in the Official Gazette under Section 6 and being in operation for 21 years and parties having worked out their equities on the basis of said scheme on the mass allocation of water in riv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is length of time. Having considered several correspondence between the parties, we find that though initially the State of Karnataka had requested the Union Government for implementation of Scheme "B", thinking the same to be the decision of the tribunal and even though at one point of time the Union itself through its counsel Mr. Seyid Muhammad, had requested the tribunal itself to make Scheme "B" operative but later on each of the states began their water management projects on the basis of the mass allocation made under Scheme "A". Mr. Nariman is right in his submission that the states had no other alternative inasmuch as it was only Scheme "A" which was notified and was made binding between the parties but the fact remains that having planned their respective projects on the basis of mass allocation made by the tribunal, the State of Karnataka did think in the year 1993 in response to the letter from the Union Government for Constitution of the Krishna Valley Authority that the State does not think it proper to have the Authority at that point of time. Thus all the three states have made their respective planning for utilisation of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Krishna river, which was found at 75% of dependability and while allocating specified quantity of water in a water year in respect of the three states, the tribunal has also observed that Andhra Pradesh will be at liberty to use in any water year, the remaining water that may be flowing in river Krishna but such liberty will not confer any right whatsoever nor can the State claim any right in respect of any water in excess of the quantity specified namely 800 TMC. The relevant Clause of the Final Order as notified in the Gazette by the Government of India is extracted hereto. (C) The State of Andhra Pradesh will be at liberty to use in any water year the remaining water that may be flowing in the river Krishna but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year, water of the river Krishna in excess of the quantity specified hereunder: (i) as from the water year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83. 800 T.M.C. (ii) as from the water year 1983-84 up to the water year 1989-90.800 T.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be some restrictions in such use. At the outset, it may be noticed that in the very clause, while giving liberty to State of Andhra Pradesh to use the remaining water, the tribunal itself has hastened to hold - "but thereby it shall not acquire any right whatsoever to use in any water year nor be deemed to have been allocated in any water year, water of the river Krishna in excess of the quantity specified." The aforesaid direction of the tribunal itself curtails the so-called liberty granted to the State of Andhra Pradesh but since the tribunal was giving a mass allocation in respect of the three States and unless such liberty is granted in favour of the lowest riparian State, the water would have otherwise entered into the Bay of Bengal and, therefore, it was thought fit that the lowest riparian State could utilise the same, but can never claim a right by using the excess water. In the context of the expenses involved for such major projects and the national loss, which the country cannot afford to sustain in a Federal Structure like our country, it is the duty of the Central Government to bear this in mind while sanctioning any such major project of the lowest r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lowest riparian State and it should be so exercised that there should not be any apprehension in the minds of the upper States ' that for all times to come, their right of sharing the surplus water would in any manner be endangered. These two issues are answered accordingly. ISSUE NO. 9 29. In view of what has been stated by us while answering Issues 10 and 11, this issue, no longer survives for any further consideration and this issue is accordingly answered against the defendant State of Andhra Pradesh. ISSUE NO. 2 30. This issue has to be answered on the basis of the assertions made in the plaint as well as the cause of action for filing of the suit. As has been stated earlier, the State of Karnataka being of the opinion that Scheme "B" evolved by the tribunal is also a decision of the tribunal, which unfortunately could not be given effect to, on account of lack of consent of all the States for constituting a Monitoring Authority and having failed in its attempt to get the said scheme implemented by getting a Monitoring Authority constituted, the said state filed the present suit. It is the refusal of the State of Andhra Pradesh to agree to the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Section 6(A) of the Act, being the implementation of the decision of the tribunal under the Act, which decision may involve of setting up of a machinery for the purpose, as is indicated in the Statement of Objects and Reasons and in the case in hand, setting up of such authority, not having been agreed to by the parties, nor the Parliament having come forward with any legislation under Entry 56 of List I of the Seventh Schedule and at the same time the said Scheme "B" having been evolved for better and fuller utilisation of the water of river Krishna by all the riparian States, this Court should issue necessary mandatory orders, calling upon the Union Government to constitute the authority. According to Mr. Nariman, the learned senior counsel for the State of Karnataka, Section 6(A) confers power upon the Central Government and correspondingly, casts a duty on the said Government and if the Statute confers a power coupled with duty, the Court can always compel the authority concerned to perform the said duty, if the same is not performed at all. Mr. Nariman contends that though the tribunal devoted a good deal of its time in evolving Scheme "B" for bette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly if Parliament makes law under Entry 56 of List I and also makes a further declaration as required. Mr. Andhyarujina, the learned senior counsel for the State of Maharashtra, also supported the contention of Mr. Parasaran and submitted that the power under Section 6(A) is essentially a delegated legislative power and, therefore, no court would be justified in issuing mandamus for exercise of such power. This issue really does not require to be answered since question of direction to constitute an authority like Krishna Valley Authority would crop up, only if it is held that Scheme "B" evolved by the tribunal is the decision of the tribunal and for its implementation an Authority is required to be constituted. We have already held that Scheme "B" cannot be held to be the decision of the tribunal, while deciding issue Nos. 4, 5 and 7 and in that view of the matter, we are not inclined to examine the contentious issues as to whether the exercise of power by the Central Government under Section 6(A) is an executive one, as contended by Mr. Nariman or is legislative in nature, as contended by Mr. Parasaran. We, therefore, leave this issue open, not deciding the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for efficacious allocation of water in river Krishna. It will also be open for the parties to place fresh data on the basis of improved method of gauging even for finding out the availability of water in Krishna basin. In fact the learned Solicitor General, fairly stated that in the event any of the riparian States approaches the Central Government, it would not hesitate to discharge its statutory obligation for Constitution of a Tribunal and that is the only solution at this juncture. 35. The suit is accordingly dismissed with these observations. There would, however, be no order as to costs. (S.B. Majmudar, J.) (G.B. Pattanaik, J.) (V.N. Khare, J.) (U.C. Banerjee, J.) (R.P. Sethi, J.) O.S. NO. 2 OF 1997 STATE OF ANDHRA PRADESH VS STATE OF KARNATAKA and Ors. Authored By : S.B. Majmudar, G.B. Pattanaik, U.C. Banerjee, R.P. Sethi S.B. Majmudar, J. 36. I had the privilege of going through the draft judgment prepared by brother G.B. Pattanaik, J. in the aforesaid suit. I respectfully agree with the same. However, looking to the importance of two pivotal issues, being issue Nos. 2 and 9(a), (b) & (c), I have thought it fit to supplement the reasoning in the aforesaid judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Maharashtra which are upper riparian States located in the Krishna basin through which the river Krishna, which is admittedly an inter-state river, flows. The expression 'water dispute' has been defined by the Disputes Act as per Section 2(c) as under: water dispute" means any dispute or difference between two or more State Governments with respect to- (i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; or (ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) the levy of any water-rate in contravention of the prohibition contained in Section 7. Keeping in view the aforesaid salient features of the Constitutional scheme and the relevant provisions of the Disputes Act, we may turn to the plaint of the State of Andhra Pradesh in the present suit. While deciding the question of jurisdiction of this Court, the averments in the plaint on demurrer will have to be kept in view. Paragraph 4 of the plaint recites that: After the Krishna Water Disputes Tribunal rendered its decision, first on 24-12-1973 and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishna Waters Disputes Tribunal (hereinafter referred to as 'the KWDT') constituted under Section 4 of the Disputes Act by the Central Government and also after reciting the substance of the decision rendered by the said Tribunal, the grievances voiced in that suit in the light of the post-award developments are high-lighted in paragraphs 65 to 68 of the plaint under the caption 'Violation of KWDT decisions by Karnataka - defendant No. 1 in the suit' and it is in the light of these grievances that prayers and reliefs have been put forward after paragraph 75 of the plaint. The main prayers on the basis of which relief is sought for are prayers (a), (c), (d) and (f) which read as under: (a) declare that the report/decision dated 24-12-1973 and the further report./ decision dated 27-5-1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India. (b) xxx xxx (c) declare that the party States are entitled to utilise not more than the quantity of water which is allocated or permitted by the decisions of the KWDT for the respective projects of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with all other projects executed, in progress and contemplated by Karnataka would enable it to utilise more water than allocated by the Tribunal? (A.P.). (b) Whether Karnataka could be permitted to proceed with construction of such a dam without the consent of other riparian States, and without the approval of the Central Government? (A.P.) (c) Whether Karnataka can be permitted to raise the storage level at Almatti dam above RL 509.16 m. in view of the likely submergence of territories in Maharashtra. 10. Whether the Plaintiff proves that the reservoir and irrigation canals as alleged in paragraph 68 of the Plaint are oversized. If so, are they contrary to the Decision of the Tribunal? (A.P.). 20. Whether the State of Karnataka has violated the KWDT award by proceeding with several new projects in the sub-basin such as K-6, K-8 and K-9 in respect of which restrictions in quantum of utilisations have been imposed in the final decision of the Tribunal? (A.P.). Keeping in view the aforesaid salient features of the plaint of the State of Andhra Pradesh, the nature of controversies raised therein, reliefs claimed and the issues which fall for consideration of the Court, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 114 of tin Exhibit PK II, we find that, nowhere it is held by the Tribunal that out of the total quantity of water, namely, 2096 TMC per water year on the basis of 75% dependability any fixed quota of water for utilising, was earmarked for Upper Krishna Project (hereinafter referred to as 'UKP') which consisted of three dams namely, Hippargi weir, Almatti Dam and Narayanpur Dam. Clause III of the final order of the Tribunal as gazetted under Section 6 of the Disputes Act clearly provides that "the Tribunal hereby determines that, for the purpose of this case, the 75 per cent dependable flow of the river Krishna up to Vijayawada is 2,060 T.M.C." and this entire quantity is available to the States of Maharashtra, Kamataka and Andhra Pradesh. Out of the total quantity thus found available for distribution, the State of Maharashtra as per Clause V is enjoined not to use in any water year more than 560 TMC up to the water year 1982-83 and further additional quantities in future as laid down therein. Similarly, the State of Karnataka is enjoined not to use in any water year more than 700 TMC to start with, up to the water year 1982-83 and further permitted quantities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion is reached a moot question survives whether the construction of the Almatti dam with FRL of 524.256 would ultimately result in utilisation of more water by defendant No. 1 State than what is allotted by the Tribunal. This grievance, which is made subject matter of issue No. 9(a) at the instance of the plaintiff State of Andhra Pradesh, has a clear nexus with the grievance of the said State about the violation of the decision of the Tribunal. Thus, even if it is held that the decision of the Tribunal regarding Scheme "A" has not expressly mentioned any permissible height to which the Almatti dam could be constructed with appropriate storage capacity of water if it is held on evidence that that height of 524.256 FRL would result in utilisation of more water per water year than as allowed, as per Clause V of the decision of the Tribunal, then the question of violation of injunction of Clause V by defendant No. 1 State would clearly fall for consideration. It is in that light that we have to consider the grievance of the plaintiff-State. 41. For deciding this question we may usefully refer to UKP Stage-II Multi Purpose Project - detailed Report submitted by defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity of Almatti power plant. 42. Once these averments in support of defendant No. 1's case are read in the light of PAP - 46 referred to earlier, it becomes clear that for generating electricity of 672 million units, the height of the dam could very well be at 519.60 m. That would serve the purpose of the defendant No. 1 State both for irrigating the command area of 1,97,120 hectares as well for generating aforesaid units of electricity and would very well result in treating the Almatti project as multi-purpose project. 43. We may also usefully refer in this connection to an affidavit of Prof. Ram Prasad on behalf of State of Karnataka-defendant No. 1 herein. It has been furnished by defendant No. 1 State in support of its case. The said affidavit is at page 103 of compilation II file of the State of Andhra Pradesh. Paragraph 4 of the said affidavit also makes an interesting reading. The same reads as under: The Upper, Krishna Project (UKP) consists of two reservoirs, one at Almatti and the other at Narayanpur, to utilize 173 TMC of water for irrigation (including evaporation from the reservoirs). At the instance of the Government of Karnataka, Indian Institute of Scie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of 302 tmc. under the UKP. In this regard, I have studied the relevant technical records made available by the Irrigation Department and the project officials. 45. These affidavits of experts, relied upon by defendant No. 1 State itself show that for utilising 173 TMC of water for irrigation and domestic use and power generator FRL 519.60 will be sufficient. It may be kept in view in this connection that under the award of the Tribunal an assessment of water requirement for UKP by the State of Karnataka was made by the Tribunal in the general terms as 155 TMC of water at Amatti dam and 5 more TMC was added to UKP because of calculation error so far as Hippargi weir project was concerned. They total up to 160 TMC and even that apart, according to Defendant No. 1 State, it would require storage capacity at Almatti dam for 173 TMC of water for irrigation, domestic use and power generation. We may also keep in view the Tribunal's decision, as seen from PK I and II, that Almatti dam was meant for being treated as a storage carry over reservoir for ultimately releasing water for irrigation to the down stream Narayanpur project. The height of the Almatti reservoir at FRL 519.60 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other inter-state projects. In the background note on the projects which was forwarded along with the said letter it was stated that the Central Water Commission had observed that the project as envisaged (UKP Stages I & II) creates a physical capability of water utilisation in excess of the envisaged utilisation of 173 TMC. It Was observed that "this is possible in view of the proposed top of the radial gate at FRL + 521 meters against the required level of 518.7 meters for utilisation for 173 TMC of water. 48. In para 40 of the plaint at page 60 of Vol.-III is mentioned a letter of 11th July, 1996 addressed by the then Minister for Water Resources, Government of India to the Chief Minister of the plaintiff State regarding UKP Stage II. In the said letter it was disclosed that the Central Water Commission have opined that since no permanent flood pool is envisaged, gate top above FRL of 518.70M is not acceptable. Meaning thereby that the gate level can go at Almatti dam up to that height and any further height would not be acceptable to the Central Water Commission. 49. At para 48 of the plaint it has been averred that "at the request of Andhra Pradesh, the Steering C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, it becomes absolutely clear that even according to defendant No. 1 State, the height of Almatti dam at FRL 519 would meet its present requirements of storage of sufficient water at Almatti dam for irrigation and power generation purposes. It may be that its future need depending upon the contingency of Scheme "B" ultimately getting finalised may require larger storage capacity calling for greater height at Almatti dam but at present as seen from the records, its need would be satisfied by restricting the height of Almatti dam at FRL 519. In fact, so far as the aforesaid height is concerned, even the plaintiff State, while cataloguing violations of KWDT decisions by the Karnataka State, has made the following pertinent averments in paras 66 (ii) & 66(iii) at pages 74 to 76 of its plaint: 66(ii). As per well accepted engineering practices, a live storage of maximum of 103 TMC is considered sufficient for utilisation of 155 TMC of water for irrigation. This is more apposite in view of the local conditions of the project area. Since the live storage capacity of the Narayanpur reservoir was only 23.77 TMC, the Tribunal allowed construction of the Almatti reservoir only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond 518.7 m. and going up to 524.256 m. In other words, there is no real grievance of the plaintiff State regarding maintenance of height of Almatti Dam at least up to 518.7 m. or 519 m. Beyond that it would be a real bone of contention by the plaintiff State. The aforesaid grievance of the plaintiff State is further highlighted, when we turn to para 68 of the plaint at page 82. Therein the plaintiff states that the 1st Defendant Karnataka has grossly violated the decisions of the KWDT. In the said para pertaining to Almatti Dam, at item 2, it was mentioned as under: Sl. No. Name of the project Area permitted (lakh acres) Planned Area (lakh acres) 2. Almatti Nil 4.13" On a conjoint reading of the aforesaid averments in paras 66(ii) and (iii) and para 68(a)(2), it becomes at once clear that the real grievance of the plaintiff State is of storage and utilisation of additional 11 TMC water at Almatti Dam by raising the height up to 524.256 m. which would result in the irrigation of planned area of 4.13 lakh acres. Under these circumstances, therefore, in our view as at present advised if the height of Almatti Dam is fixed at FRL 519 m. it would meet the require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... territory can construct a dam as required by it. The grievance of other riparian States would arise only if such construction is likely to affect the available water flow of inter-state river as available to it by any adjudication of the Tribunal or if it raises a dispute in this connection to be adjudicated upon by any future Tribunals The absolute assumption in the issue that State of Karnataka cannot be permitted to proceed with construction of dam without consent of other riparian States, therefore, cannot be accepted and will have to be considered subject to the aforesaid rider. 55. So far as the second assumption is concerned, the approval of the Central Government will be required under the federal setup as and when any project is to be constructed in Karnataka State. It has to get clearance from appropriate statutory and executive authorities. It cannot, therefore, be assumed that State of Karnataka would proceed with the construction of such dam without approval of the Central Government. In fact the evidence on record has shown that it has already approached the Central Government for necessary approval. Issue No. 9(b) is answered accordingly. Issue No, 9(c): 56. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten guarantee from Karnataka State that it would not install radial gates at Almatti and/or store water unless the matters of submergence of and likely damages to the structures in the territory of Maharashtra, were discussed and settled with the Maharashtra State to its entire satisfaction. The State of Karnataka was also informed that in the event of non receipt of written assurance, the State of Maharashtra would be compelled to approach the Honorable Supreme Court and seek judicial intervention for a total stoppage of all construction work at the Almatti dam and prevent storage of water above crest level RL 509.00 m. At para 1.13 at page 73 the stand of the State of Maharashtra is stated as disclosed from the correspondence exchanged between the parties: (a) The level of Krishna river near the Maharashtra Karnataka border is less than RL 519.00 m. compared to FRL RL of 524.256 m. at Almatti and FRL RL 524.87 m. at Hippargi, with the result there will be submergence in 55 Maharashtra to the extent of 5 to 6 meters. (b) No actual field surveys have so far been undertaken by Karnataka to assess the magnitude and extent of submergence in Maharashtra, Karnataka has now stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady fragile river regime near the border of the two States and increased flood depths and durations and consequent distress every year. Similar submissions are found at page 34 of the additional written statement filed by the State of Maharashtra. Statement No. 1 captioned as list of villages from Maharashtra State likely to be effected by floods due to Almatti Dam (in Karnataka State) with FRL RL 524.256 m., has mentioned list of 58 villages covered by the Krishna river basin. 57. The aforesaid grievance of the State of Maharashtra, which is defendant No. 3, against defendant No. 1 is really a dispute between the two defendants and does not project any dispute qua the plaintiff State, but even proceeding on the basis that suit under Article 131 is a comprehensive one and seeks to resolve the simmering disputes between all the contesting States which are the riparian States situated in inter-State river Krishna basin and not applying the strict yardstick of a suit before an ordinary civil court, we have to appreciate the real grievance voiced by the State of Maharashtra against the height of Almatti Dam. It centers around the height of 524.256 m. Any height beyond 519 m. and goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... level of 512 m. would entitle the State of Karnataka to control waters of river Krishna which is an inter-State river and if this type of control of the Krishna water by defendant No. 1 State is likely to submerge villages of Maharashtra State, which is an upper riparian State, by back-effect, it would clearly fall within the definition of 'water dispute' as found in Section 2(c)(i). That would immediately attract Section 3(a) which deals with complaints by State Governments as to water disputes, it provides that: 3. Complaints by State Governments as to water disputes.- If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by- (a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or x x x It becomes clear that the Maharashtra State, namely, defendant No. 3, apprehends that because of the executive action of Defendant No. 1 State c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n para (k) in the reliefs sought by the State of Maharashtra from the Water Tribunal it was submitted as under: (i) That for the purpose of giving effect to the decision of this Honourable Tribunal all directions may be given and orders passed which are usual and proper in a final determination of an inter-States' River Water Dispute including a direction that the water shall not be used in any project which will have the effect of submerging the territory of any other State except with the prior consent of, and prior agreement on the adequate compensation for the damage to the concerned State if it has consented to a part of its territory being submerged. It is, of course, true that though the defendant No. 3 State considered the question of submergence as a part of 'water dispute' to be resolved by the Tribunal, the Tribunal did not consider the question of submergence of villages in the territory of defendant No. 3 State because of the height of Almatti Dam. It has, therefore, remained a simmering dispute between the defendant No. 3 State and defendant No. 1. It, therefore, requires to be' adjudicated upon by a competent Tribunal as noted earlier. It is axioma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther competent authorities functioning under different Statutes. Requisite clearance will be required by defendant No. 1 State for raising the height of the dam even up to 519 m. 61. In particular, such clearance will have to be obtained under the Environment Protection Act, 1986 and from the Ministry of Forests & Environment, Govt. of India in this connection. 62. Appropriate clearance will also have to be obtained from the Central Water Commission for raising the height up to 519 m. 63. The aforesaid permission/clearance to raise the height of 519 m. by this order will also subject to any further directions if any, obtained by the disputant States concerned from any future Water Disputes Tribunal which may be constituted by the Central Government on the complaint raised by any of the disputant States, including the State of Maharashtra defendant No. 3 herein. The interim relief granted by this Court pending hearing of the present suit will stand modified to the effect that the State of Karnataka, subject to the aforesaid clearance of the authorities, can raise the height of the Almatti Dam up to 519 m., as at present advised. 64. The raising of further height of Almatti Dam b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quantity of water which is allocated or permitted by the decisions of the KWDT for the respective projects of the respective party States before the Tribunal; and that any variation in either storage or utilisation of the waters by each such state in respect of each of such projects could only be with the prior consent or concurrence of the other riparian States; (d) declare that all the projects executed and/or which are in the process of execution by the State of Karnataka which are not in conformity with and conflict with or violate the decisions of the KWDT, as illegal and unauthorised. (e) declare that approvals/sanctions/ clearances/ in-principle clearances granted by the Union of India on or after KWDT decisions on 24.12.1973 and on 27.5.1976 in respect of schemes/projects/ undertaken by the Government of Karnataka are invalid and direct the Union Government to review/reconsider all such schemes/projects proposed/ undertaken by Karnataka, afresh, after obtaining the views thereon of the other riparian States; (f) declare that the State of Karnataka and Maharashtra shall not be entitled to claim any rights preferential or otherwise in respect of storage, control and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; (1) pass a decree in terms of prayers (a) to (k); and (m) award costs of the present proceeding in favour of the Plaintiff; (n) pass such further decree or decrees or other orders as this Hon'ble Court may deem fit in the facts and circumstances of the case. 68. Though there are as many as 14 reliefs sought for as stated above, but essentially the reliefs relate to the construction of Almatti Dam under Upper Krishna Project by the State of Karnataka to a height of 524.256 M. Though the averments of facts in the plaint have been made in 71 paragraphs, shorn of minute details, the same may be stated as under; 69. That the dispute between the three riparian States namely Maharashtra, Karnataka and Andhra Pradesh with respect to use, distribution and control of the water of inter-State river Krishna stood resolved by the decisions of the tribunal, constituted under Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as 'the Act') by the decision rendered in 1973 and the Further decision rendered in 1976. The said decision having bee- notified by the Central Government under Section 6, became binding on all parties. All the parties-State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any right to the user of such water except to the extent allocated to it. The plaintiff also averred that while making allocation to the three States, no express provisions were made for sharing of any deficiency and further the tribunal took note of the fact that out of 100 years deficiency may occur in 25 years. It was also averred relieve the State of Andhra Pradesh from the aforesaid difficulty, the tribunal permitted the State of Andhra Pradesh to store water in the Nagarjunasagar Dam and in Srisailam Dam and held that for such storage, there would not be any deduction from its share out of the dependable flow on the ground that if the water is not allowed to be stored by the plaintiff-State, then it would flow down and get submerged in the sea. According to the plaint, the tribunal did consider the different project reports which had been produced before it, in relation to the Upper Krishna Project and allowing the protected utilisation of 103 TMC, it came to the conclusion that the demand of State of Karnataka to the extent of 52 TMC to be utilised by Narayanpur Right Bank Canal is worth consideration. After enumerating the different Clauses of the Final, Order of the tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the tribunal and, therefore, this Court should injunct the State of Karnataka in going ahead with the Almatti Dam upto the height of 524 Metres, as indicated in its project. The plaintiff then referred to several correspondence made between the State of Karnataka and State of Andhra Pradesh inter se, as well as correspondence between these States and Union Government and Central Water Commission. It has also been averred that allowing the State of Karnataka to construct the dam at Almatti up to a height of 524 Metres would be grossly detrimental to the lower riparian state of Andhra Pradesh inasmuch as for three months in a year from July to September, the State of Andhra Pradesh may go dry and the entire crop in the State would get damaged for paucity of water. The plaintiff also has averred in several paragraphs of the plaint as to how the plaintiff-State has been demanding from the State of Karnataka to have suitable information in relation to the construction of the dam at Almatti and how the plaintiff State has been prevented from being favoured with any such information. In paragraph 34 of the plaint, the plaintiff refers to the letter addressed to the Chief Minister of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eters. The said Committee had also observed that the FRL on the top of the shutter be fixed for the present at 519.6 meters and the gates be manufactured and erected accordingly and this will be adequate to take care of the annual requirements of 173 TMC presently envisaged under the Upper Krishna Project. The said Committee, therefore, suggested the restriction of the height of the dam at 519.6 meters. The plaintiff however does not accept of the entitlement of the first defendant to use 173 TMC under UKP and the height of the dam at 519.6 meters. From paragraph 52 onwards, the plaintiff then has made averments indicating the negotiations and further developments in the matter and then states that the Ministry of Power, Government of India having indicated that 'in principle' clearance of construction of Upper Krishna Hydro-electric power project at Almatti, contemplating the height of the dam at 524.256 meters was contrary to the award of the tribunal, and therefore, the plaintiff-State lodged its objections by letter dated 18th of October, 1996, to which the reply came that 'in principle' clearance is not a techno-economic clearance and it is purely an administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... YPK-3. Neither the State of Andhra Pradesh nor any other State had raised any objection to the said Project Report and there was no issue before the tribunal on that score and in fact the height of the Almatti Dam was not a matter of adjudication before the tribunal. In this view of the matter, the plaintiff-State is not entitled to raise that issue on the purported allegation that it amounts to violation of the decision of the tribunal. It is also contented that an identical issue having been raised by an individual by filing a writ petition in the Andhra Pradesh and after dismissal of the same, the matter having been brought to this Court and the order of the Andhra Pradesh High Court has been affirmed, the same question cannot be re-agitated by filing a suit by the State under Article 131 of the Constitution of India. In respect of the decision of the Committee, which stated about the FRL 519.6 m, it has been averred in the written statement that the said Committee considered the height at 519.6 meters to be sufficient, taking into account the storage capacity of the dam which will take care of the annual requirement of 173 TMC in a water year but it did not take into account th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision thereon has been given by the tribunal itself and in this view of the matter any grievance with regard to the height of the dam at Almatti would be a fresh water dispute and would not come within the adjudicated dispute and decision thereon by the tribunal itself and, therefore, the suit filed under Article 131 is not maintainable. It has been specifically averred that the storage level at Almatti Dam from 519.6 meters to 524.256 meters is not at all an increase, particularly, when the tribunal itself expressly noted the contemplated completion of the Almatti Dam to the full, height that is the height in Exhibit MYPK-3. The defendant also referred to the report of the Central Water Commission dated January 30, 1994, where under it has been indicated that since the power generation is contemplated under the project at Almatti by way of utilising the extra storage of water between 519.60 meters and 521 meters, the project may be treated as a multi-purpose project (the level required to utilise 173 TMC of water for irrigation is 519.60 meters). The Defendant-State of Karnataka has specifically averred that even though the dam height is raised to this final level of 524.256 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff has no grievance and is not entitled to file the suit. It has been stated in the written statement that in the re-submitted modified proposal dated 21st of April, 1996 for Upper Krishna Project Stage II as multi-purpose project, incorporating compliance of the various comments of CWC and also then again proposing a FRL of 524.256 meters, clearly stating that even though the dam was to be raised to its final level of 524.256 m, the utilisation for irrigation would be only 173 TMC as per the readjustment of the project-wise allocations in the Master Plan within the scope of the Scheme "A" allocation of 729 TMC and as such, there has been no deviation, so far as the height of the dam at Almatti is concerned. With regard to the allegations made in the plaint, concerning development seeking a political solution to the dispute, the defendant-Karnataka denies all the averments made in that respect and asserts that execution of projects is within its entitlement and limits permitted by the decision of the tribunal. With regard to the initiative taken by the Prime Minister of India by holding a meeting on 10.8.1996, it has been stated that such initiative was frustrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... environmental law is concerned, it has been averred in the written statement that the applications for environmental clearance are under process by the Government of India and the State of Karnataka has not done anything without the appropriate clearance from the Appropriate Authorities. According to the defendant-State of Karnataka, the averments in the plaint are misleading and lacking of bona fides and all allegations and insinuations against the Chief Minister of Karnataka are denied. All other allegations of illegality being perpetuated by the State of Karnataka have been denied. So far as creation of Jal Nigam is concerned for effective execution of the Upper Krishna Project, the State of Karnataka contends that the said Nigam is wholly Government owned company and all its activities are controlled by the Department of Irrigation, Govt. of Karnataka and, therefore, the allegation of the plaintiff that the State is abdicating its responsibility for the execution of the project is incorrect and is denied. It has been categorically averred that the Karnataka State would be subjected to irreparable loss if the works at Almatti are stopped and the State of Andhra Pradesh wants to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1956. Generally denying the allegations made in the plaint the Union of India took the positive stand that Karnataka multipurpose project Stage II which envisages generation of Hydropower is still under examination and the project report provides for Hydropower generation by storing water at the addition of storage space from 519.6 M to 524.256 M and it has been indicated that after generating the Hydropower the tail race water after power generation will be let into the river Krishna and the utilisation of river Krishna water under UKP will be within 173 TMC. With regard to the plaint allegation that under the Award Tribunal has allocated water project wise, the Union of India submitted that the allocation of water is gross allocation and not the project wise allocation. It has been further stated that the State is entitled to utilise the gross amount of water for any such projects and so long as utilisation by Karnataka is within 173 TMC in upper Krishna project, there is no violation of Krishna Water Disputes Tribunal Award. It has also been indicated that Stage I of UKP has been approved and Stage II is under various examination arid not yet been approved. So far as the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect. But no final approval has been given. The allegation of State of Andhra Pradesh that Central Government adopted partisan attitude has been denied and on the other hand it has been stated that the State of Andhra Pradesh has not been able to prove that by constructing Almatti Dam the State of Karnataka will be utilising more water than allocated by KWDT. It is in this context the Central Government has also averred that the State of Andhra Pradesh is constructing Telugu Ganga Project which is an unapproved Project. So far as the allegation in the plaint that State of Andhra Pradesh had not been consulted before the Department of Environment and Forest cleared the Upper Krishna Project, it has been averred that there is no obligation on the part of Department of Environment and Forest, Government of India to obtain the views of State of Andhra Pradesh while clearing of the Upper Krishna Project of State of Karnataka. According to the Central Government the Award of the Tribunal is binding on the parties and the plaintiff has not been able to show any violation of the decision of the Tribunal. 72. On behalf of Ministry of Power who is Defendant No. 2 (C) a separate written st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and did not want any clarification on the subject of storage which fortifies stand of the State of Maharashtra that there is no restriction on any State in respect of storage of water within the Krishna Basin so long as it does not exceed the enbloc allocation given by the Tribunal. According to this defendant the relief sought for in the plaint would tantamount to a complete re-writing of the decision of the Tribunal which would be outside the scope of a suit under Article 131 of the Constitution. After refuting the stand taken by the State of Andhra Pradesh in the plaint in paragraph 16 of the written statement the State of Maharashtra submitted, "that the plaintiff does not deserve to be granted any of the prayers prayed for in this para and the Suit should be dismissed with costs". Having filed the aforesaid written statement on 7th July, 1997 fully supporting the stand taken by the State of Karnataka and seeking relief of the dismissal of the suit filed by the State of Andhra Pradesh an additional written statement was filed by the said State on 9th April, 1999 giving a clear go bye to the earlier written statement and taking a new stand in relation to the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 1. Whether the State of Karnataka has violated the binding decisions dated 24.12.1973 and 27.05.1976 rendered by the KWDT by executing the projects mentioned in para 66, 68n & 69 of the Plaint? (A.P./KAR) 2. Has this Hon'ble Court jurisdiction to entertain and try this suit? (MAH.) 3. Does the Plaintiff prove that the allocation of Krishna Waters by the KWDT in its Final Order are specific for projects and not enbloc as contended by the Defendant? (MAH.) 4. Does the Plaintiff prove that the upper States are not entitled to construct project without reference to and consent of the other States? (MAH.) 5. Whether the Plaintiff is entitled to a declaration that all the projects executed and/or which are in the process of execution by the State of Karnataka, and not in conformity with or in conflict with the Decisions of the KWDT are illegal and unauthorised? (A.P.) 6. Is not the Union Government duty bound to consult all the riparian States before according any approval/sanction/ clearance in principle clearances to any schemes, projects proposed/undertaken, by any of the riparian States on the Inter-State river Krishna? (A.P.) 7. Whether the sanctions and the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder? (A.P.) 18. Whether the utilisation of water under Chikkapada Salagi, Heggur and 5 other barrages is not 33 TMC as assessed by the Plaintiff State? (A.P.) 19. Whether the cumulative utilisations in the K2 sub-basin is 173 TMC as claimed by the State of Karnataka or 428.75 TMC as assessed by the Plaintiff State? (A.P.) 20. Whether the State of Karnataka has violated the KWDT award by proceeding with several new projects in the sub-basin such as K-6, K-8 and K-9 in respect of which restrictions in quantum of utilisation have been imposed in the final decision of the Tribunal? (A.P.) 21. Whether utilisation under Almatti would be of the order of 91 TMC as claimed in para 66(iii) of the plaint? (A.P.) 22. To what reliefs if any, the plaintiff is entitled to? (A.P.) 75. The additional issue framed as 9(C), because of the additional written statement filed on behalf of defendant No. 3 is to the effect, "Whether Karnataka can be permitted to raise the storage level at Almatti dam, above RL 509.16 meters in view of the likely submergence of territories in Maharashtra." 76. Before we take up the different issues framed by the Court and answer the same in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e riparian States, and that being the position, there is no logic on the part of the State of Andhra Pradesh to resist the prayer of Plaintiff No. 1 is OS No. 1 of 1997 to make Scheme 'B' binding on parties which Scheme obviously form a part of the report and the further report. Mr. Ganguli, learned senior counsel appearing for the State of Andhra Pradesh on the other hand contended, that a prayer made by the plaintiff has to be understood in the context of the averments made in the plaint itself and not bereft of the same. According to Mr. Ganguli prayer 'a' in the case in hand if read in the light of the averments made in the plaint itself it would only mean that the plaintiff State having averred in the plaint that the Tribunal had made project wise allocation which should be read into the final decision of the Tribunal which has been notified in the Official Gazette by the Government of India and, therefore, the State of Karnataka is not entitled to raise the height of the Dam at Almatti to 524.256 meters whereby it would be able to store more than 200 TMC of water with the utilisation capacity of about 400 TMC. It is in this context Mr. Ganguli placed before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then forwards to the Central Government a further report giving such explanation or guidance as it deems fit. Thereby the original decision of the Tribunal is modified to the extent indicated in the further decision as provided under Section 5(3) of the Act. Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette where after the said decision becomes final and binding on the parties to the dispute and has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties. It is not required that the report containing the arguments or basis for the ultimate decision is also required to be notified so as to make that binding on the parties. This being the position, it is difficult to appreciate the contention of Mr. Ganguli that the decision of the Tribunal as notified, is in fact a decree of a civil suit and that decree has to be understood in the light of the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has also permitted such issues to be struck and most of the issues over-lap one another and in fact have no bearing in relation to the prayer made by the plaintiff. But instead of re-framing the issues, arguments having been advanced by the counsel for the parties, we would deal with each of them, but with specific emphasis on the vital issues. So far as the three issues with which we are concerned at the moment, when read with the paragraphs of the plaint, dealing with the same, it appears that the plaintiff Andhra Pradesh has made out a case in the plaint that under Scheme "A" which is the decision of the tribunal and which has been notified by the Central Government under Section 6 of the Inter-State Water Disputes Act, though there has been allocation of water enbloc but on going through the report itself and the very basis on which the mass allocation has been quantified, it would indicate that project-wise allocation must be read into the so-called mass allocation. This being the position, in Upper Krishna Project, the tribunal having allocated only 160 TMC of water, construction of Almatti Dam to a height of 524.256 meters itself constitutes an infraction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prayed for, can be granted let us examine the very first ingredient namely whether under the decision of the tribunal, there has at all been a project-wise allocation as contended by Mr. Ganguli, appearing for the State of Andhra Pradesh or the allocation was enbloc, as contended by Mr. Nariman, appearing for the State of Karnataka and reiterated by Mr. Salve, the learned Solicitor General and Mr. Andhyarujina, appearing for the State of Maharashtra. While deciding the Original Suit No. 1 of 1997, filed by the State of Karnataka, negativing the contention of the said State to the effect that Scheme "B" evolved by the tribunal, whether forms a decision of the tribunal or not, we have already recorded the finding that Scheme "B" cannot be held to be the decision of the tribunal inasmuch as it is only that order of the tribunal which conclusively decides the dispute referred to, and is capable of being implemented on its own, can be held to be a decision of the tribunal under Section 5(2) of the Act. In fact the plaintiff in the present suit also bases its case on the Scheme "A" and contends that there has been an infraction of the said Scheme "A&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishna river basin during the water years 1990-91, 1991-92 and 1992-93 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects. (B) The State of Karnataka shall not use in any water year more than the quantity of water of the river Krishna specified hereunder.- (i) as from the water year commencing on the 1st June next after the date of the publication of the decision of the Tribunal in the Official Gazette up to the water year 1982-83 700 TMC (ii) as from the water year 1983-84 up to the water year 1989-90 700 TMC plus a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water years 1975-76, 1976-77 and 1977-78 from its own projects using 3 TMC or more annually over the utilisations for such irrigation in the water year 1968-69 from such projects. (iii) as from the water year 1990-91 up to the water year 1997-98 700 TMC plus a quantity of water equivalent to 10 per cent of the excess of the average of the annual utilisations for irrigation in the Krishna river basin during the water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared that: (i) the utilisations for irrigation in the Krishna river basin in the water year 1968-69 from projects using 3 TMC or more annually were as follows: From projects of the State of Maharashtra -61.45 TMC From projects of the State of Karnataka - 176.05 TMC From projects of the State of Andhra Pradesh -170.00 TMC (ii) annual utilisations for irrigation in the Krishna river basin in each water year after this Order comes into operation from the project of any State using 3 TMC or more annually shall be computed on the basis of the records prepared and maintained by that State under Clause XIII. (iii) evaporation loses from reservoirs of projects using 3 TMC or more annually shall be excluded in computing the 10 per cent figure of the average annual utilisations mentioned in Sub-clauses A(ii), A(iii), A(iv), B(ii), B(iii), B(iv), C(ii), C(iii) and C(iv) of this clause. 79. The aforesaid Clause V, no doubt is in a negative form, prohibiting the State of Maharashtra and State of Karnataka from using in any water year more than the water that has been allotted in their favour respectively but by no stretch of imagination, any restriction can be said to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in respect of those 11 projects and the tribunal adjudicated the additional utilisation to the extent of 714.91 TMC in respect of 9 out of the 11 projects and thus the total protected utilisation out of the dependable flow at 75% dependability worked out at 1693.36 TMC, which of course includes 227.25 TMC on minor irrigations. Having thus arrived at the figure of 1693.36 TMC for protected utilisation, the balance quantity out of the dependable flow to the extent of 366.64 TMC was further distributed by the tribunal to the extent of 50.84 TMC to Andhra Pradesh for Srisailam reservoir and Jurala Project. Out of the remaining 315.80 TMC, taking into consideration all germane factors, the tribunal allocated 125.35 TMC to Maharashtra and 190.45 TMC to Karnataka. Mr. Ganguli contends that while making these allocations, so far as Upper Krishna Project in the State of Karnataka is concerned, the tribunal merely permitted utilisation of only 52 TMC in the Right Bank Canal of Narayanpur in addition to the protected utilisation of 103 TMC already granted in respect of the Left Bank Canal under the Narayanpur Canal and, therefore, the total worked out at 155 TMC and there had been no allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to use the waters for irrigation in such manner as they find proper, subject, always to the restrictions and conditions which are placed on them. Unless, therefore, any restriction or conditions in the decision of the tribunal can be found out for utilisation of a specific quantity of water out of the total allocated share in the Upper Krishna Project, there cannot be any fetter on the part of the State of Karnataka to make such user. In the decision of the tribunal, there does not appear to be an iota of restrictions or conditions, which even can be inferred and, therefore, the submission of Mr. Ganguli, appearing for the State of Andhra Pradesh on this score cannot be accepted. 82. In the report of the Krishna Water Disputes Tribunal Exhibit PK-1 for the purpose of allocation of water in the Krishna Basin the Tribunal has examined each project of each of the three States and then recorded its conclusion as to whether the project is worth consideration. The Tribunal expressed the meaning of the expression "worth consideration" by saying that the expression is used in the sense that it means the requirements of an area in the State concerned. It would be appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te as assessed from the demands made which had been either protected or which have held as worth consideration. The very fact that restrictions have been put by the Tribunal in several sub-basins and no restriction has been put so far as sub-basin K-2 wherein Upper Krishna Project of the State of Karnataka is being carried on clinches the point raised by the State of Andhra Pradesh and discussed in these three issues, namely, it is not possible to read any restriction for quantity of user of water in Upper Krishna Project by the State of Karnataka and so long as the total user does not exceed mass allocation, it cannot be said that the decision of the Tribunal is being violated infringing the rights of the State of Andhra Pradesh which can be prohibited by issuing any mandatory injunction. After receiving the copy of the report and the decision of the Tribunal under Exhibit PK-1 the State of Andhra Pradesh filed application for clarification, being clarification No. 4 under Section 5(3) of the Act, requesting reduction of 1.865 TMC from the Koyna Project of State of Maharashtra. Having filed such application on 5th March, 1976, the learned Advocate General of the State of Andhra Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the additional issues framed thereon, the learned Counsel appearing for the State of Maharashtra did not argue the question of jurisdiction, and on the other hand contended, that the jurisdiction of this Court in a suit under Article 131 of the Constitution should not be restricted or narrowed down and on the other hand the Court should be capable of granting all necessary reliefs in adjudicating the dispute raised. That apart on the basis on which the plaintiff State filed the suit and the relief sought for it cannot be said that the suit is not maintainable. We, therefore, answer this issue in favour of the plaintiff. ISSUE NOS. 4, 6, 7 and 8 84. These four issues are inter-linked and have been framed in view of the positive stand taken by the State of Andhra Pradesh that in case of an inter State river when any project of one State is considered by the Government of India or any other appropriate authority the other State should also be made aware of and their consent should also be taken. Though this stand had been taken by the plaintiff-State of Andhra Pradesh but all the three defendants refuted the same. In course of hearing of the suit the learned Counsel Mr. Ganguli h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer to injunct the State of Karnataka from constructing the Dam height at Almatti upto 524.256 meter cannot be granted. The issue has two sub-issues; Sub-issue 'a' relates to the height of Almatti Dam; and sub-issue 'b' being on the question whether State of Karnataka could be permitted to proceed with the construction without the consent of the other riparian States and without the approval of the Central Government? At the outset it may be stated that though the State of Karnataka had produced its project report relating to the construction of the Almatti Dam as per Exhibit PAP-42 but neither the Tribunal had considered the same nor any decision has been arrived at on the question of height of the said Dam. Even after the original report and the decision being made known under Section 5(2) of the Act as per Exhibit PK-1 the State of Andhra Pradesh also did not raise any dispute or clarificatory application objecting to the construction of the Almatti Dam or even to the height of such Dam under Section 5(3) of the Act. In the absence of a decision of the Tribunal on the question of construction of Dam at Almatti or its height and mass allocation made, being bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Expert Committee was approved by the four Chief Ministers who had been requested by the Prime Minister of India to intervene and find out the efficacy or otherwise of the stand of Karnataka to have Almatti Dam upto the height of FRL 524.256 m. The said Expert Committee had observed that the proposal of the State of Karnataka of having Upper Krishna Project with FRL 524.256 m in Stage II at Almatti has not been approved by the Government of India. And it has been further observed that it would be desirable to proceed with utmost caution in the larger interest of the Nation to wait and watch operation of various Krishna system upstream and down stream before embarking on creating larger storage at AJmatti Dam than what is needed to suit the prevailing conditions. We are taking note of the observations made by the Expert Committee for the purpose that the plaintiff having failed to establish its case for getting an injunction, would it be appropriate for this Court to allow the State of Karnataka to have the height of the Dam at Almatti at 524.256 m or it would be obviously in the larger interest of the country and all the States concerned to allow the Dam up to the height of 51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Tribunal, and as such, cannot be implemented by a mandatory order from this Court and the stand of the State of Karnataka before the so called Expert Committee being that they have designed the height of Almatti Dam at 524.256 m keeping in view that in the event Scheme 'B' fructifies the State will be able to get the surplus water and store it as a carry over reservoir, as observed by the Tribunal itself, notwithstanding the fact that the plaintiff has failed to establish a case on its own for getting the relief of injunction in relation to the construction of Almatti Dam by the State of Karnataka, it would be reasonable to hold that though the State can 5 have the Dam at Almatti but the height of the said Dam should not be more than 519.6 m, particularly when the State of Karnataka has not been able to indicate as what is the necessity of having a height of Dam at 524.256 m when Scheme 'B' is not going to be operated upon immediately. The Upper Krishna Project Stage II, detailed project report of October 1993 which has been exhibited in the present case as PAP 45 also indicates that minimum FRL required to get 173 TMC utilisation is found to be 518.7 m. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our under Scheme "A" and, therefore, the State should be injuncted. We are unable to appreciate this contention of the State of Andhra Pradesh inasmuch as on today the Central Government as well as the appropriate authority have not sanctioned the Upper Krishna Project Stage-II with the dam height at 524.256 meters. It would not be possible for this Court to pronounce that there will be a violation of the mass allocation if the State of Karnataka is allowed to have the dam height at Almatti at 524.256 meters, though as stated earlier, according to the State of Karnataka itself for utilisation of 173 TMC, the required dam height is 519.6 meters. It is under these circumstances, we are of the considered opinion that there should not be any bar against the State of Karnataka to construct the dam at Almatti upto the height of 519.6 meters and the question of further raising its height to 524.256 meters should be gone into by the tribunal, which learned Solicitor General agreed on behalf of Govt. of India to be constituted immediately after the delivery of judgment of these two suits, so as to mitigate the grievance of each of the riparian States on a complaint being made by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an claim any relief against the co-defendant is itself a debatable issue. Mr. Andhyarujina, the learned senior counsel, appearing for the State of Maharashtra, however contended that a suit filed in the Supreme Court under Article 131 of the Constitution is of a very peculiar nature and the normal principle of a suit filed in an ordinary civil Court should not apply. According to Mr. Andhyarujina, if a dispute between the two states involving the existence or extent of a legal right of one State is being infringed by the action or in-action of another State, is brought before this Court invoking jurisdiction under Article 131 of the Constitution, this Court would be fully justified in entertaining and adjudicating the said dispute, no matter whether the dispute is raised as a plaintiff or a defendant in any proceeding before the Court. It is in this context the learned Counsel referred to the observations of Bhagwati J and Chandrachud J, in the case of State of Karnataka v. Union of India [1978]2SCR1 , wherein Hon'ble Bhagwati J. had indicated that the original jurisdiction of the Supreme Court under Article 131 on being invoked by means of filing a suit, the Court should be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a also relied upon the observations of Bhagwati J in the said decision to the following effect: What has, therefore, to be seen in order to determine the applicability of Article 131 is whether there is any relational legal matter involving a right, liberty, power or immunity qua the parties to the dispute. If there is, the suit would be maintainable, but not otherwise. 89. Reliance was also placed on the observations of Chandrachud J, in the self same case, which may be extracted herein under: By the very terms of the article, therefore, the sole condition which is required to be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties referred to in Clauses (a) to (c) must involve a question on which the existence or extent of a legal right depends. 90. Chandrachud J also had categorically stated : I consider that the Constitution has purposefully conferred on this, Court a jurisdiction which is untrammeled by considerations which fetter the jurisdiction of a Court of first instance, which entertains and tries suits of a civil nature. The very nature of the dispute arising under Article 131 is different, both in form and subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the learned Counsel, the State of Karnataka too agreed to carry out actual field surveys and calculations to determine the extent of submergence under the directions of Central Water Commission in its meeting dated 22.2.1999 and those studies are still under progress and further the Supreme Court itself had passed an order of status quo relating to the height of Almatti Dam by order dated 2.11.1998 and consequently, the State of Maharashtra never thought it fit to file an independent suit, invoking the jurisdiction of the Court under Article 131. But the State of Karnataka having obtained the liberty from this Hon'ble Court to proceed further with the installation of the assembly of the gates by order dated 4.11.1998 and the said State of Karnataka refusing to give an undertaking to the State of Maharashtra not to raise the height of the Almatti Dam beyond the present level of 509 meters, the State of Maharashtra was compelled to put forth its grievance on the question of likely submergence of its territory and has prayed for the relief of injunction against the State of Karnataka for raising the dam height up to 524.256 meters. Mr. Andhyarujina also submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate that it had no grievance on the question of submergence. Having examined the rival contentions on this issue, we have no hesitation to hold that the issue must be answered against the State of Maharashtra. 93. It is no doubt true that the jurisdiction of the Court in a suit under Article 131 of the Constitution is quite wide, which is apparent from the language used in the said article and as has been interpreted by this Court in the two cases already referred to (see [1978]2SCR1 . It is also true that Article 142 confers wide powers on this Court to do complete justice between the parties and the Court can pass any order or issue any direction that may be necessary, but at the same time, within the meaning of Article 131, the dispute that has been raised in the present suit is between the State of Andhra Pradesh and State of Karnataka and question, therefore, would be whether it involve any existence or extent of a legal right of such dispute. In answering such a dispute, it may be difficult to entertain a further dispute on the question of submergence as raised by the State of Maharashtra, a co-defendant. But in view of the stand taken by Mr. Nariman, without further d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undation and submergence of its territory if the height of Almatti Dam is allowed to be raised to 524.256 meters, as per the latest Project Report of the State of Karnataka, but such concern of the State of Maharashtra alone would not be sufficient for this Court to decide the matter and issue any order of injunction as prayed for in the additional written statement filed by the State of Maharashtra and on the other hand, it would be a matter for being agitated upon before a tribunal to be constituted by the Govt. of India in the event, a complaint is made to that effect by the State of Maharashtra. We also do not find sufficient materials in this proceeding before us to enable this Court to come to a positive conclusion as to what would be the effect on the question of submergence, if the height of the dam at Almatti is allowed to be constructed up to 524.256 meters inasmuch as, according to the State of Maharashtra, the joint surveys are still on. It is too well settled that no Court can issue an order of mandatory injunction on mere apprehension without positive data about the adverse effects being placed and without any definite conclusion on the question of irreparable injury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterfere with the rights of a State from using the water allocated by the Tribunal within its boundaries nor is this Clause capable of being construed that if any submergence is caused in any other State by such user, then the user becomes in consistent with any order of the Tribunal. Mr. Andhyarujina's entire argument is based upon the expression 'regulate within its boundary' but that expression applies to the use of water or enjoys benefits of water within that State. Since the question of submergence of any other State by the user of water by another State allocated in its favour is not a subject matter of adjudication by the Tribunal and in fact the Tribunal has not expressed any opinion on the same it would be difficult for us to hold that submergence ipso facto even if admitted to be any within the State of Maharashtra by user of water by the State of Karnataka of Almatti can be held to be in consistent with the order of Tribunal. In this view of the matter we are unable to accept the submission of Mr. Andhyarujina, learned senior counsel appearing for the State of Maharashtra that the user of water by the State of Karnataka by constructing a Dam at Almatti is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submission of the report and the decision in the year 1973 as per Exhibit PK-1 the Government of India had filed the application for clarification which was registered as Reference No. 1 of 1974 by the Tribunal and Clarification 1 (b) was to the following effect- While the Tribunal have laid down restriction on the use of water in certain sub-basins as well as the total use by each State, there may be locations where hydro power generation (within the basin) may be feasible at exclusively hydro-sites or at sites for multi-purpose projects. At such sites, part of the waters allocated to the States, as also water which is to flow down to other States could be used for power generation either at a single power station or in a series of power stations. The Tribunal may kindly give guidance as to whether such use of water for power generation within the Krishna basin is permitted even though such use may exceed the limits of consumptive use specified by the Tribunal for each State or sub-basin or reach, and if so, under what conditions and safeguards. 96. The State of Andhra Pradesh to the aforesaid application for clarification submitted two Notes Nos. 9 and 10 before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue is concerned the question of entitlement of the State of Karnataka to reallocate or re-adjust utilisation under UKP or any other project unilaterally does not arise at all. If the Tribunal would have made any project wise allocation and would have restricted the user of water under UKP to any particular quantity then the question of re-allocation by the State of Karnataka on its own would have arisen but the Tribunal not having made any allocation in respect of the Upper Krishna Project which includes Almatti and having made an enbloc allocation so long as the total user by the State of Karnataka does not exceed the enbloc allocation in its favour it cannot be said that there has been any violation by the State of Karnataka by planning to use any particular quantity of water at Almatti. Then again the question of getting concurrence of other riparian States, as has been raised by the State of Andhra Pradesh is wholly misconceived. Neither there exists any law which compels any State to get the concurrence of other riparian States whenever it uses water in respect of inter-State river nor the decision of the Tribunal which allocates the water in the Krishna Basin on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to conceive that any State will force ahead with its project concerning user of water in respect of Inter State reservoir without getting the sanction/concurrence of the Appropriate Authorities and without compliance with the relevant statutes or laws made by the Parliament. It is a common knowledge that the large scale projects planned by each of these States, are submitted to the Planning Commission for its approval and for getting financial assistance. Such projects are then examined by different authorities and it is only after getting approval of the Planning Commission the same is submitted to the appropriate departments of the Government of India where again all the formalities are scrutinised and final sanction or permission is granted. So far as user of water in respect of an Inter State Reservoir is concerned, the plans are also examined by the Central Water Commission, who is an expert body and the views given by such Commission also is taken into consideration by the Government of India. This being the entire gamut of procedure we really fail to understand on what basis the State of Andhra Pradesh has made the allegation and the issue has been struck in that respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an real and on the records of this proceedings no materials have been put forth to enable the Court to come to a conclusion on the question of so-called adverse effect on the State of Andhra Pradesh on account of the construction of Dam at Almatti. Mr. Ganguli, learned Senior Counsel appearing for the State of Andhra Pradesh referred to the written memorandum furnished to the Committee by the State of Karnataka wherein the said State had unequivocally admitted that the additional storage in Almatti will cause a temporary reduction in quantum of flows going to Andhra Pradesh for a period of about three months during August to October which is made good later on. According to the learned Counsel since those three months are vital for the crops in the State of Andhra Pradesh the State will sustain irreparable damages and, as such on the admission of the State of Karnataka a finding could be arrived at. At the outset we must state that the written memorandum furnished by the State of Karnataka cannot be read in isolation by spinning out a particular sentence and must be read as a whole. Thus read we do not find any admission on the part of the State of Karnataka indicating any reductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h No. 12.111. The counsel appearing for the State of Andhra Pradesh also did not place any material in support of the aforesaid issue in course of the arguments and the averments in the plaint having been denied in the written statement, the issue in question must be answered against the plaintiff. ISSUE NO. 19 104. Though, the plaintiff-State of Andhra Pradesh on its own estimation, has made an averment in paragraph 68(b) to the effect that the plan utilisation by the State of Karnataka in K2 sub-basin is 428.75 TMC on the basis of which the aforesaid issue has been framed, but no positive data have been placed before us to come to the aforesaid conclusion. On the other hand, the State of Karnataka in its written statement has asserted that under Upper Krishna Project, the utilisation would be to the tune of 173 TMC and this is apparent from several documents placed before the tribunal as well as in this proceeding. In this view of the matter, we answer this issue by holding that the plaintiff has failed to establish that the cumulative utilisation in K2 sub-basin of the State of Karnataka would be to the tune of 428.75 TMC. At any rate, since we have already held that the alloc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the construction of Darn at Almatti with the aforesaid Nigam and this has been designedly made so that any order or decree for injunction would not be binding. Since this argument had been advanced towards the concluding stage and there was no assertion in the plaint in this regard, nor any issue had been struck by the Court, the State of Karnataka had been permitted to file an affidavit indicating the correct state of affairs in relation to the Constitution of KBJNL and to allay or apprehension in the minds of the plaintiff State. An affidavit had been filed by the Secretary to the Government of Karnataka, Irrigation Department, who has also been nominated as Director of KBJNL, the said nomination having been made under Article 147(c) of the Articles of Association of the Companies. It has been categorically stated in the said affidavit that for facilitation of mobilising funds and providing sufficient funds to complete' irrigation projects the Constitution of KBJNL has been constituted with the sole idea to complete the works of Upper Krishna Projects by 2000 AD. This company is a Government Company which has been established with an approval of the Cabinet in the State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also record my concurrence therewith but I wish to add a few pages as my reasoning in the matters in issue by way of one concurring judgment of both the Suits as below: 111. The points of controversy in these two suits (OSNo. 1 and OSNo. 2/97) under Article 131 of the Constitution between the States of Karnataka, Andhra Pradesh and Maharashtra pertain to the use and sharing of Krishna river water. Whereas Karnataka has filed Original Suit No. 1 of 1997 against the State of Andhra Pradesh as the first defendant and State of Maharashtra as the second, the Original Suit No. 2 of 1997 has been instituted by the State of Andhra Pradesh against the States of Karnataka and Maharashtra. Union of India, however has been impleaded as a party defendant in both the Suits. 112. Before, however, proceeding with the controversies as raised, be it noted that peculiar is the distribution of water resources in the country which cannot but be ascribed to be highly uneven as regards time element. Over 80 to 90 per cent of the run off in Indian rivers occurs in four months of the year and there are regions of harmful abundance and acute scarcity. The country has to deal with several critical issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve litigants. Controversies between the states are becoming frequent, and, in the rapidly changing conditions of life and business, are likely to become still more so. Involving, as they do, the rights of political communities which in many respects are sovereign and independent, they present not infrequently questions of far-reaching import and of exceeding difficulty. 114. The framers of the Constitution, however, being alive to the situation did incorporate Article 262 providing for adjudication of disputes relating to waters of inter-State Rivers or River Valleys. Significantly, Sub-article 2 of Article 262 by its unequivocal language expressly provides for a total ouster of jurisdiction of courts including the Supreme Court by Parliamentary legislation as regards resolution of such disputes. The subsequent legislation as introduced into the Statute Book, namely, the Inter-State Water Disputes Act 1956 is such a legislation under Article 262 of the Constitution and Section 11 thereof excludes the jurisdiction of the courts including that of the Supreme Court in respect of a water dispute. The true effect of Section 11, however, will be dealt with shortly hereinafter but before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or regenerated flows and 70-80 TMC for industrial use and domestic water supply. Andhra Pradesh also like Maharashtra did claim further additional 120 TMC for domestic water supply and industrial use and Mysore State demanded 1430 TMC but did not include its needs for water for domestic and industrial use. There is no point of dispute that the total available water in the Krishna river system cannot match with the demands as raised or claims asserted. 119. Incidental, Krishna is the second largest river in India. It rises in the Mahadev range of Western ghats near Mahabaleshwar in Maharashtra and flows through Mysore and Andhra Pradesh obtaining further water accumulation support from various tributaries, rivulets and streams and finally joins the Bay of Bengal. In the run of 186 miles within Maharashtra, the bed fall is 14.06 ft. per mile, the fall up to mile 85 being steeper at the rate of 22.1 ft. per mile. In the run of 300 miles within Mysore, the bed fall is 2.12 ft. per miles and in a run of 358 miles within Andhra Pradesh, the bed fall is 3 ft. per mile. Be it noted that rivers Bhima and Tungabhadra are tributaries of Krishna but they themselves are major inter State river ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or further diversion of waters outside the Krishna drainage basin be protected and/or permitted? If so, to what extent and with what safeguards? How is the drainage basin to be defined? (5) Should any preference or priority be given to irrigation over production of power? (6) Has any State any alternative means of satisfying its needs? If so, with what effect? (7) Is the legitimate interest of any State affected or likely to be affected prejudicially by the aggregate utilisation and requirements of any other State? (8) What machinery, if any, should be set up to make available and regulate the allocations of waters, if any, to the States concerned or otherwise to implement the decision of the Tribunal? 122. Incidentally, the Krishna water disputes were investigated by the Tribunal in terms of an order of reference under Section 5(1) of the Inter-State Water Dispute Acts and the Tribunal upon consideration of the matter forwarded its unanimous report and decision under Section 5(2) of the Act to the Government of India on 24th December, 1973. The parties before the Tribunal, however, taking recourse to the provisions of Section 5(3) of the Act of 1956 filed four separate r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of river Krishna between Maharashtra, Mysore and Andhra Pradesh inter alia as under. (a) Clause III of the order relates to the dependable flow and augmentation in the dependable flow due to return flows. (b) Clauses IV and V embody the scheme for apportionment of water of the river Krishna between the three States of Maharashtra, Mysore and Andhra Pradesh. In Clause V it has been stated with regard to the State of Maharashtra and Mysore that each of them shall not use in any water year more than a particular quantity of water specified therein. It is necessarily implied that both these States may use, in any water year, water of the river Krishna upto the quantities specified in that Clause subject to the conditions and restrictions imposed by the Tribunal and subject to the availability of water. It has been clarified that water has been al located to each of the three States enbloc and that subject to the conditions and restrictions, each State shall have the right to make beneficial use of the water allocated to it in any manner it thinks proper. It was made clear that the water allocated to each State is for all beneficial purposes including domestic and industrial uses an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... water after the 31st May, 2000. We have, however, provided that the authority or the tribunal which will be reviewing the order of this Tribunal shall not, as far as practicable, disturb any utilisation that may be undertaken by any State within the limits of the allocation made to it by the Tribunal. The Nile Commission of 1925 had recommended a similar provision to the effect that: The Commission foresees that it will be necessary from time to time to review the question discussed in this report. It regards it as essential that all established irrigation should be respected in any future review of the question. If during the intervening period there is an augmentation of the waters of the river Krishna by the diversion of the waters of any other river, no State shall be debarred from claiming before the aforesaid reviewing authority or Tribunal that it is entitled to a greater share in the waters of the Krishna on account of such augmentation nor shall any State be debarred from disputing such claim. 126. Needless to record that the water being a nature' s bounty and social benefactor, ought to be allocated in such a way so as to have its beneficial use by all concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament." It is needless to record that Scheme 'A' does not at all depend upon the agreement of the parties and comes into operation by virtue of the order of the Tribunal. It is altogether independent of Scheme B. The Tribunal in its wisdom, however, though specific that Scheme B cannot come into operation without unanimous consent and approval of the parties or by enactment of legislation by the Parliament did, however, note in detail the modalities of Scheme B. It is on this score the Tribunal recorded as below: Now we proceed to examine how the waters of the river Krishna should be divided between the parties under Scheme W. The essential element in this scheme is that the States of Maharashtra, Mysore and Andhra Pradesh share the utilisable waters of the river Krishna in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the question of enforcement of such a Scheme is left with the "good sense of the parties or to the wisdom of the Parliament". 129. The "good sense", however, has not dawned on to the parties as yet and neither has the wisdom of the Parliament prompted it to legislate on the score and as such, introduction of Scheme B in the matter of resolution of disputes between the lower riparian State and two upper riparian States viz-a-viz the water dispute pertaining to river Krishna according to the Tribunal's own view does not and cannot arise and it is because of this conclusion of the Tribunal, I refrain myself from detailing the modalities of Scheme 'B'. 130. It would thus be convenient, therefore, at this stage to note the case with which the parties have come into this Court upon invocation of Article 131 of the Constitution. But before so doing, a short but an interesting question has to be considered as regards interpretation of Article 262 of the Constitution and as raised by the learned Solicitor General of India while contending that both the suits (OS No. 1 and OS No. 2) being barred under Article 262 having due regard to the language used the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow: 11. The bar of jurisdiction of Supreme Court and other Courts - Notwithstanding anything contained in any other law neither the Supreme Court nor any other Court and shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act. 133. There is, therefore, a total ouster of jurisdiction of all Courts. In this context reference may be made to an earlier decision of this Court reported in AIR1992SC522 (in the matter of Cauvery Water Disputes Tribunal) wherein this Court while analysing Article 262 and the Water Disputes Act. 1956 stated: An analysis of the Article shows that an exclusive power is given to the Parliament to enact a law providing for the adjudication of such disputes. The disputes or complaints for which adjudication may be provided relate to the "use, distribution or control" of the waters of or in any inter-State river or river valley. The words "use", "distribution" and "control" are of wide import and may include regulation and development of the said waters. The provisions- clearly indicate the amplitude of the scope of adjudication inasmuch as it would take w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) the levy of any water rate in contravention of the prohibition contained in Section 7". Section 3 of the Act states that if it appears to the government of any State that the water dispute with the Government of another State of the nature stated therein, has arisen or is likely to arise, the State Government may request the Central Government to refer the water dispute to a Tribunal for adjudication. Section 4 of the Act provides for the Constitution of a Tribunal when a request is received for referring the dispute to a Tribunal and the Central Government is of the opinion that the water dispute cannot be settled by negotiations. Section 5 of the Act requires the Tribunal to investigate the matter referred to it and forward to the Central Government the report of its findings and its decision. The Central Government has then to publish the decision under Section 6 of the Act which decision is final and binding on the parties to the dispute and has to be given effect to by them. These dominant provisions, among others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory, decree, order and injunction, to notify Scheme B framed by the Tribunal and made provision for establishment of a Krishna Valley Authority and for implementation of the directions of the Tribunal in the Report (1973) and Further Report (1976), as contemplated under Section 6A of the Inter State Water Disputes Act, 1956. (d) For a permanent order and injunction restraining the Defendant No. 1 from continuing to execute the following projects vis., Telugu Ganga, Sirisailam Right Bank Canal, Srisailam Left Bank Canal, Bheema Lift Irrigation and Pulichintala Projects till the Scheme B framed by the Tribunal is duly and effectively put into operation and implemented. (e) Pending the hearing and final disposal of the suit, the Defendant No. 3 be restrained from clearing any new projects of the State of Andhra Pradesh not envisaged in Scheme A. (f) Pending the hearing and final disposal of the suit, the Defendant State of Andhra Pradesh be restrained by order and injunction of this Hon'ble Court, from using any portion of surplus waters in excess of 2060 TMC for allowing any of the following projects viz., Telugu Ganga, Srisailam Right Bank Canal, Srisailam Left Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression use, distribution or control,' Section 11 which bars the jurisdiction of all Courts in respect of any water dispute which is otherwise to be referred to the Tribunal would not have any manner of application. The test of maintainability of a legal action initiated by a State in a Court would thus be whether the issues raised therein are capable of being referred to a Tribunal for adjudication. In the factual matrix of the matter under consideration, question of adjudication of any water dispute within the meaning of Section 2(c) would not arise. The suit pertains to implementation, but does not require any further adjudication of water rights between the States. Reference to two decisions of this Court [N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. [1952]1SCR218 and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., [1978]2SCR272 in the contextual facts may not have much relevance; as such, we need not detain ourselves in dealing with the same. The plenary power of Article 329(b) which is a blanket ban on litigative challenge to electoral steps taken by the Election Commission for carrying forward the process of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal be termed to be a decision within the meaning of Section 6 of the Act of 1956. 139. As regards the second suit where the State of Andhra Pradesh initiated the action in Court being O.S. No. 2 of 1997 the height of the dam at Amity is the focal point for consideration and it is on this score this Court has been pleased to have Issue No. 9(a) and (b) for adjudication which reads as below: 9. (a) Whether the construction of the Almattidam with a FRL of 524.256 meter together with all other projects executed, in progress and contemplated by Karnataka would enable it to utilise more water then allocated by the Tribunal? (b) Whether Karnataka could be permitted to proceed with construction of such a dam without the consent of other riparian State, and without the approval of the Central Government? 140. Needless to record here that the learned submissions center around these two issues in whole of the two suits being O.S. No. 1 and O.S. No. 2 and which have in fact occupied more than 25 hearings before this Bench. 141. It would, however, be convenient at this juncture to note that the issue pertaining to Scheme B - whether a decision or not, is the most relevant and the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has to be implemented and this is a Statutory requirement, therefore, and resultantly the decision will assume its conclusiveness and its binding nature immediately after publication of the same in the Official Gazette. 143. It is rather significant to note that the Issue No. 2 as raised before the Tribunal and noticed hereinbefore has been answered by the Tribunal in the final order itself by way of Scheme A, the detailed Scheme as suggested by the Tribunal. Scheme B however, does not find place in the final order. Admittedly, the Tribunal delved into the issue as an alternative scheme for resolution of disputes by establishment of Krishna Valley Authority and it is this Scheme - it is this second Scheme which Mr. Nariman. Sr. Advocate appearing for the Plaintiff State of Karnataka contended that the Scheme itself ought to be treated as a part of the final order and decision of the Tribunal and as such ought to be implemented. 144. It is to be noted, however, that the authority spoken of (Krishna Valley Authority) in terms of the order of the Tribunal itself has to be established either by agreement between the parties or by any law made by the Parliament under Entry 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III. "The Krishna Valley Authority shall tentatively determine the shares of all the States." IV. "The Krishna Valley Authority will be in a position to give directions to the parties to adjust their utilisations in such a way that the use made by each State at the end of a water year is as far as practicable.... V. "The Krishna Valley Authority is to ensure that the parties get waters in proportion to their share. For this purpose it can take any step which it deems proper at any time." VI. "The Krishna Valley Authority may even direct transfer of water from the project to upper State to the project of the lower State from time to time." VII. "We take it that the Krishna Valley Authority will be composed of high ranking engineers who are expected to use their discretion in the matter of transfer of water from one State to another judiciously." VIII. "A highly competent body such as the Krishna Valley Authority which will not only consist of the representatives of the States but also of the Government of India will take due care while directing the transfer of water from one State to another. As a further safeguard, it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties or to the wisdom of Parliament. 149. On the wake of the statements as recorded by the Tribunal as above, I do not see any reason to ascribe Scheme B as the decision of the Tribunal requiring publication or notification by the Central Government in terms of the provisions of the Act of 1956. 150. Section 6 of the Act of 1956 provides for publication of the decision of the Tribunal and is rather specific in its language and on an analysis of the same it appears that there is existing a statutory and mandatory requirement, to publish, in the event, a decision is communicated to the Central Government by the Tribunal pertaining to a water dispute within the meaning of the Act of 1956. As noticed above, the Tribunal itself recorded in no uncertain terms that in so far as Scheme B is concerned, question of enforcement there of would be dependant upon the good sense of the parties or to the wisdom of the Parliament This is thus not a decision in terms of Section 6 of the Act of 1956 so as to create an obligation for its publication so far as the Central Government is concerned. The Tribunal itself has treated it differently and in no uncertain terms recorded that whereas Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Tribunal would not otherwise have the jurisdiction to issue any directive and conversely, the Union Government will not have any obligation either to agree to carry out any directive. 153. Scheme B has been expressly recommended subject to alternative contingencies - (I) an agreement between the parties or, (II) a legislation by Parliament and it is by reason of the factum of non-fulfilment of either of the two happenings even during this interregnum, question of Scheme B as being capable of being notified as a decision does not arise. Scheme B in short, would not constitute a decision. The Krishna Valley Authority spoken of earlier and being the 'heart of the Scheme' shall have to be created by the Central Government and having due regard to the factum that Central Government has not created any such authority as yet, question of implementation of Scheme B, as a decision of the Tribunal does not and cannot arise. Needless to record, that there cannot possibly be any binding direction either and, in fact, there has been none in the matter of Constitution of an Authority such as Krishna Valley Authority - it has been left solely to the concurrence of the parties and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retary to the Government of India, Ministry of Water Resources to the following effect: I am directed to refer to the Government letter dated 17.8.92 under reference and to communicate the following comments of Karnataka on the establishment of Krishna Valley- (a) The Krishna Water Dispute Tribunal has considered in its final order, only scheme "A" for implementation i.e. allocation of 75% dependable flows only. The order of the Tribunal comes up for review in 2000 A.D. the time upto 2000 A.D. is required by the State for the implementation of projects as per Scheme "A" of allocations ordered by the Tribunal. The Tribunal, in its final order has not contemplated any machinery to be set up for the Scheme "A " of allocation and hence there is no necessity for the setting up of the same. (b) The Constitution of machinery was only contemplated for scheme "B" where surplus flows also had to be allocated. But Scheme "B" did not form part of the final order of the Tribunal nor have the parties agreed so far for Scheme "B". The machinery can come only when parties opt for Scheme "B". (c) However, even without ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation. If it is agreeable to you, I shall convene a meeting of the Irrigation Ministers of Krishna Basin States for working out the Constitution and functions and the modalities for setting up of Krishna Valley Authority. 160. The reply to the said letter, P.K.-97, by letter dated 3.2.96 (P.K. 98) is also of some importance and the same is set out here in below: Please refer your DO letter cited above wherein a proposal has been made to convene a meeting of Irrigation Ministers of Krishna Basin States for working out the Constitution and functions and the modalities for setting up of Krishna Valley Authority. In this connection, I would like to draw your attention to the Scheme B as envisaged by the Krishna Water Disputes Tribunal which provides for a fuller and better utilisation of the waters of the river Krishna. Only on the coming into operation of this scheme, Krishna Valley Authority has to be established. So far, three Inter-State meetings at the level of Chief Ministers have been held, the first one on 21.4.1990 at Tirupathi, the Second Meeting on 22.8.1990 at Mysore and the third meeting on 22.5.1993 at Mahabaleswara, to resolve the issue of sharing the surplus wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text, ought also to be noticed namely the review of the distribution of water after 25 years as contained in the report of the Tribunal and which has since been published by the Central Government in terms of its obligation under Section 6 of the Act of 1956. The Tribunal itself felt that while Scheme B may be otherwise beneficial but Scheme B cannot be termed to be a part of the final order or the decision of the Tribunal warranting implementation by the Central Government. 163. The third aspect of the matter is in regard to the concept of equities Undoubtedly, some projects have been constructed both by Maharashtra and by Andhra Pradesh and in the event of there being some change of situation, the national exchequer would very severely hit since the project cost are otherwise phenomenal. Not only there would be a drainage of national economy but correspondingly, the same will have its due effect on the entire super structure of the country. In any event, the Scheme A itself is due for review in the month of May, 2000 and obviously the review shall have to be by a Tribunal and it would be open for the Tribunal to have a fresh look into the matter. Incidentally, the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is confined to the parties to the water dispute: On the second count he contended that Section 6 and Section 6A operate in different fields - Section 6A conditionally empowers the union to take step which it may consider appropriate to implement the decision of a tribunal. This power of the union is not conditional upon any disobedience by the States, nor it it confined to situations where the Tribunal directs the Constitution of an authority: On the third count he contended that the principle of "power coupled with a duty" is therefore inapplicable on account of the fact that the decision of the Tribunal is not made binding upon the union under Section 6 of the Act. It also cannot be invoked since the nature of the power conferred under Section 6A is clearly legislative in character, which is discernible inter alia from A. the nature of the power conferred. B. The power to frame regulations, which would have overriding effect. C. The nature of Parliamentary control. D. The overriding power conferred in Section 6A(6). On the fourth count Mr. Solicitor General contended that the provision expressly provides that Parliament may decide that no scheme is necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30th September, 1997 records a concession on the part of Shri F.S. Nariman, Senior Advocate appearing for the State of Karnataka being the Defendant No. 1 (O.S. No. 2) and Shri T.R. Andharjuna, former Solicitor General of India, appearing for the State of Maharashtra being the Defendant No. 3 (O.S. No. 2) in the matter of acceptance of the prayer in the plaint in O.S. No. 2 of 1997 filed by the State of Andhra Pradesh wherein the Plaintiff State of Andhra Pradesh prayed for a declaration that the report/decision dated 24.12.1973 and further report/decision dated 27th May, 1976 of the Krishna Water Disputes Tribunal in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh as also the Union of India. The order of this Court of 30th September, 199 7 as noted above recorded that by reason of such a concession, question of there being any controversy as regards the binding nature of the decision of the Tribunal dated 24th December, 1973 and as modified by further report and decision dated 27th May, 1976 between the three riparian States would not arise. The order however, records that the learned Attorney General appearing for Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ataka has unilaterally planned to increase, the area to be irrigated to 23.77 lakh acres which is contrary to the Decision of the Tribunal. 3.3 that if Karnataka is permitted to go ahead with raising of Almatti dam beyond RL 519.60 m, it enables storage of more than 200.00 TMC. and utilisation of about 400 TMC. Therefore, according to Andhra Pradesh the downstream flow would be gravely affected and consequently the power and irrigation needs would suffer. * * * 173. On the wake of the aforesaid understanding as recorded in the written statement, Mr. Ganguly the learned Senior Counsel for the State of Andhra Pradesh being the Plaintiff in O.S. No. 2 of 1997 contended that the prayer made in the Plaint ought to be appreciated in the context of the averments made in the Plaint itself and the appreciation thereof by the Defendant and not the hors the same. Perusal of the statement as above would unmistakably depict the specific understanding of the State of Karnataka as regards the averments in the Plaint and that by itself negates the submission of Mr. Nariman. Having come to the conclusion as above, I need not dilate much on the other part of the submission of Mr. Ganguly more so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n at the hands of the Tribunal or authority reviewing the matter. Almatti Dam is under construction and may serve as carry-over reservoir 175. It thus appears that the claim of Karnataka for allocating more water for Upper Krishna Project has been expressly negated and Almatti Dam has been taken to serve only as a carry-over reservoir obviously for irrigation purposes and it is on this score that Mr. Ganguly contended that the three riparian States being bound by the mandate of the Tribunal as contained in its decision as notified in terms of Section 6 of the Act of 1956 cannot possibly act contra the decision of the Tribunal. Admittedly, the height of Almatti was at FRL 509. Under the final award or the decision of the Tribunal, the total utilisation permitted under all the three components of Upper Krishna Project i.e. Hippargi, Almatti and Narayanpur was 155+5 = 160 TMC and no irrigation was permitted under Almatti Canal since the Tribunal expressly observed in Exhibit P.K.II in answer to a clarification from the State of Maharashtra: "We may also point out that we did not allow any demand for water in respect of Almatti Canal." The further demand of the State of Karn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illogical, but having regard to the present contextual situation, I am unable to agree with the submissions in favour of the grant of injunction-the situation is not conclusive for the grant, neither the grant is warranted at this juncture. Generally speaking however, be it noted that the issue of grant of injunction is to be looked from the point of view as to whether on refusal of the injunction, the Plaintiff would suffer irreparable loss of injury keeping in view the strength of the parties' case. Balance of convenience or inconvenience is also another requirement but no fixed rules or notions ought to be laid in the matter of grant of injunction and the relief being always flexible depending upon the facts and circumstances of each case. The justice of the situation ought to be the guiding factor (vide the decision of this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. : AIR1999SC3105 : myself being a party to the judgment). In the contextual facts, therefore, question of grant of any order of injunction in my view would not arise. 177. As noticed above the height of Almatti Dam is the principal issue in O.S. No. 2 of 1997: the question therefore arises a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn the ambit and coverage of that article. The only requirement necessary for attracting the applicability of Article 131 is that the dispute must be one involving any question "on which the existence or extent of a legal right" depends, irrespective whether the legal right is claimed by one party or the other and it is not necessary that some legal right of the plaintiff should be infringed before a suit can be brought under that article. The plaintiff must of course be a party to the dispute and obviously it cannot be a party to the dispute unless it is affected by it. 178. Chandrachud, J. also in the same judgment and in the same vein observed: I consider that the Constitution has purposefully conferred on this Court a jurisdiction which is untrammeled by considerations which fetter the jurisdiction of a court of first instance, which entertains and tries suits of a civil nature. The very nature of the disputes arising under Article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits. 179. In my opinion, the view expressed above amply represents the true meaning and purport of Article 131 of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, is also of some substance by reason of 40 the express stand of the State of Karnataka that the deficiency of water supply in the month of August, September and October can be met immediately thereafter. It is this admitted case that the Kharif crop would be a total wash out in the event no water is available in July, August and September: Storage facility at Nagarjuna Sagar and Sri Sailem would not really alleviate the situation. Earlier in this judgment I have stated that peculiarities are the characters of the rivers in this country - whereas one is in spate causing a tremendous amount of flood damage, the other is totally dry causing an equal amount of dry famine season and on the wake of the aforesaid, the apprehensions expressed by both the States of Maharashtra and Andhra Pradesh do not seem to be baseless and as such the same needs serious consideration by the concerned Authority or Authorities at the time of re-consideration of Scheme 'A' in terms of our judgment in O.S. No. 1 of 1997. 181. In that view of the matter I record my concurrence with the findings of Brother Pattanaik, that by reason of the report of the experts, the Almatti Dam and its upper limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd fauna. There is no denial of the fact that in the ancient times water played an important role in the origin, development and growth of civilization all over the globe. Water is an important factor in the economic development of the countries which ultimately affects the social and human relations between the habitants. Planned development and proper utilization of water resources can serve both as a cause as well as an effect off the prosperity of a nation. Water on earth is available in the form of frozen snow, rivers lakes, springs, water ways, water falls and aqueducts, etc. 184. In this galaxy and the environment surrounding the earth, its hydrosphere segment mostly consists of water in the shape of oceans. Out of the total available water on earth 97.3 % water is such which can not be utilised for the benefit of the humanity. Only 2.07 % water is available for consumption and mankind's utilization. Out of this consumable water 3 0% is used for irrigation, 7% for domestic and 12% for industrial purposes. Rest of the water goes waste on account of mismanagement and the lack of facilities of better utilisation. Whereas water is scarce and limited, its users are numbers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts has undergone a sea change all over the world. International and inter-State disputes regarding the user of water are sought to be settled by recourse to the process of law in place of the old doctrine or settlement "by war or diplomacy". Water under all prevalent systems of law has been declared to be the property of the public and dedicated to their use, subject to appropriation and limitations as may be prescribed either under law or by settlement or by adjudication. The disputes relating to water management, its development and its distribution are to be considered not from rigid technical or legal angle but from the preeminently important humanitarian point of view as water wealth admittedly forms a focal point and basis for the biological essence and assistance of socio economic progress and well being of human folk of all the countries. In resolution of the disputes relating to development, management and distribution of the water reliance has to be placed upon the long usage, customs, prevalent practices, rules, regulation Acts and judicial decisions. There is no dispute that under the constitutional scheme in our country right to water is a right to life and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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