16 February 2018
Supreme Court
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THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY Vs STATE OF TAMIL NADU BY ITS CHIEF SECRETARY

Bench: HON'BLE THE CHIEF JUSTICE, HON'BLE MR. JUSTICE AMITAVA ROY, HON'BLE MR. JUSTICE A.M. KHANWILKAR
Judgment by: HON'BLE THE CHIEF JUSTICE
Case number: C.A. No.-002453-002453 / 2007
Diary number: 11993 / 2007
Advocates: V. N. RAGHUPATHY Vs R. NEDUMARAN


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1

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION    

CIVIL APPEAL NO. 2453 OF 2007    

 The State of Karnataka by its Chief Secretary  … Appellant(s)    

Versus    State of Tamil Nadu by its Chief Secretary & Ors. … Respondent(s)    

WITH    

CIVIL APPEAL NO. 2454 of 2007    State of Kerala through the Chief Secretary  …Appellant(s)  to Government        Versus    State of Tamil Nadu through the Chief Secretary     …Respondent(s)  to Government and others     

CIVIL APPEAL NO. 2456 OF 2007      State of Tamil Nadu through the Secretary         ...Appellant(s)  Public Works Department           Versus    State of Karnataka by its Chief Secretary           …Respondent(s)  Government of Karnataka & Ors.            

2

2    

  J U D G M E N T  

   Dipak Misra, CJI    

I N D E X  

S. No. Heading Page No.  

A. The proceedings in this Court in the present  Appeals  

6  

B. Maintainability of the Appeals by Special  Leave  

18  

C. Stand of all parties pertaining to remand of  the matter to the Tribunal after deliberation  of the legal issues  

21  

D. Reference of the dispute to the Tribunal 24  

E. The initial proceedings before the Tribunal 29  

F. The issue of Ordinance by the State of  

Karnataka and the Presidential Reference  34  

G. The genesis of the controversy 50  

H. Doctrine of Paramountcy and its extinction  on coming into force of the Indian  

Independence Act, 1947  

74  

I. Infraction of Article 363 and non- maintainability of the dispute on the basis of  

agreements  

108  

J. Unconscionability of the 1892 and 1924  

agreements  133  

K. Status of the agreements after coming into  

force of the States Reorganization Act, 1956  

147

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3    

L. Issue relating to expiry of the agreements 164  

M. Did the complaint not require any  

adjudication?  179  

N. The approach adopted by the Tribunal post  

1974 and correctness of the same  183  

O. The quintessence of pleadings before the  

Tribunal  197  

P.  

 

The findings of the Tribunal on various  

issues  215  

P.1 Prescriptive rights and other claims 215  

P.2 Breach of agreements of 1892 and 1924  

and consequences thereof  217  

P.3 Peripheral issues qua claims of Kerala  and Union Territory of Pondicherry  

(presently named as ―Puducherry‖)  

219  

P.4 Gross water available for apportionment 222  

P.4(i) Surface flow of water 222  

P.4(ii) Identification of dependable yield 228  

P.4(iii) Additional source of water 231  

P.5 The principles of apportionment 241  

P.6 Determination of "irrigated areas" in  

Tamil Nadu and Karnataka  255  

P.7 Assessment of water for "irrigation  

needs" in Tamil Nadu and Karnataka  269  

P.8 Assessment of water for "Domestic and  Industrial  Purposes" in Tamil Nadu and  

297

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4    

Karnataka  

P.9 Assessment of water for "Environment  Protection and Inevitable Escapages  

into Sea" in Tamil Nadu and Karnataka  

305  

P.10 Water allocation for the State of Kerala  and Union Territory of Pondicherry  

(presently named as ―Puducherry‖)  

308  

P.11 Final water allocation amongst  

competing States  325  

P.12 Monthly schedule for delivery of water  

at inter-State contact points  327  

Q. Mechanism (Cauvery Management Board) for  implementation of Tribunal's decisions  

335  

R. Final order of the Tribunal 337  

S. Arguments advanced on behalf of State of  Karnataka as regards the allocation of water  on various heads  

345  

S.1   Submissions of Mr. Fali S. Nariman 345  

S.2  Submissions of Mr. S.S. Javali 349  

S.3  Contention raised by Mr. Mohan V.  

Katarki  

351  

S.4  Proponements of Mr. Shyam Divan 360  

T. Arguments put forth by the State of Tamil  Nadu  

368  

T.1   Submissions of Mr. Shekhar Naphade 368  

T.2  Contentions raised by Mr. Rakesh  

Dwivedi  

384  

U. Arguments advanced on behalf of the State  of Kerala  

387  

V. Submissions urged on behalf of  Union  Territory of Puducherry  

395  

W. Arguments on behalf of Union of India 398

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X. Our findings on issues of allocation 402  

X.1 Principles of apportionment to be  followed  

402  

X.2 Determination of ‗irrigated areas‖ in  Tamil Nadu and Karnataka  

422  

X.3 Assessment of water for ―irrigation  needs‖ in Tamil Nadu and Karnataka  

426  

X.4 Water allocation for the State of Kerala 431  

X.5 Water allocation for the Union Territory  of Puducherry  

432  

X.6 Recognition of ground water as an  additional source in Tamil Nadu  

433  

X.7 Water allocation for Domestic and  Industrial purposes in Tamil Nadu  

438  

X.8 Water allocation for Domestic and  Industrial purposes of State of  Karnataka  

439  

X.9 Allocation of water towards  environmental protection  

446  

X.10 Revised water allocation amongst  competing States  

447  

Y. Interpretation of Section 6A of the 1956 Act 452  

Z. The conclusions in seriatim 457  

 

In this batch of Appeals, the assail is to the award dated  

05.02.2007 passed by the Cauvery Water Disputes Tribunal (for  

brevity, ―the Tribunal‖) constituted under Section 3 of the Inter-

State Water Disputes Act, 1956 (for brevity, ―the 1956 Act‖) by three  

States, namely, Karnataka, Tamil Nadu and Kerala as each of them  

is aggrieved by the allocation and sharing of water of river          

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Cauvery according to individual perception, perspective and  

understanding. It is worthy to mention here that there are two  

principal States, namely, State of Karnataka and State of Tamil  

Nadu who as adversaries take the centre stage. The other two, State  

of Kerala and Union Territory of Pondicherry (presently named as  

―Puducherry‖) in their own way, attacked the award and also  

seriously criticized the stand and stance of the main protagonists  

because of their dominant, assertive and adamant attitude by  

which they not only feel neglected and discriminated but have also  

been compelled to harbour the idea that two of them have created  

impediment in their rightful due concerning the release of water.  

A. The proceedings in this Court in the present Appeals  

2.  Before the hearing of the Appeals commenced, on being moved  

by the State of Tamil Nadu, State of Karnataka and the Central  

Government, certain orders came to be passed. It is necessary to  

adumbrate the nature of orders passed by this Court, for without  

the said narration, it will be an incomplete narrative. We may  

immediately state that we shall devote some space to the genesis of  

the disputes as it travels beyond 100 years  and the learned counsel  

for the parties have argued with vigour and energy in that regard.  

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The said submissions shall be noted and addressed in due course.  

Be it noted, at one stage, the issue of entertainability of the appeals  

by special leave was raised by the Union of India and this Court had  

to deal with it and delivered a judgment in State of Karnataka v.  

State of Tamil Nadu and others1. Certain other orders also  

reflected the stand of the contesting States and where and how they  

were to be guided by the cherished principle of rule of law by  

accepting the order of the Court and not take a deviant path.  

3.  Though the award was passed on 5th February, 2007, yet it  

was published by requisite notification dated 19th February, 2013.  

On 10.05.2013, in I.A. No. 5/2013 in Civil Appeal No. 2456 of 2007,  

a two-Judge Bench, taking note of the notification dated 19th  

February, 2013 and also considering the fact that the said  

notification was under consideration of the Central Government,  

passed an order constituting a Supervisory Committee as a pro tem  

measure for implementation of the final order of the Cauvery Water  

Disputes Tribunal dated February 5, 2007 which was notified vide  

notification dated February 19, 2013. The two-Judge Bench ordered  

that the said Supervisory Committee shall consist of Secretary,  

                                                           1 (2017) 3 SCC 362

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Union Ministry of Water Resources as Chairman and the Chief  

Secretaries of the respective States of Karnataka, Tamil Nadu,  

Kerala and Union Territory of Puducherry as members.  

4. The order clarified that the aforesaid pro tem arrangement was  

without prejudice to the pending civil appeals, namely, Civil Appeal  

Nos. 2453 of 2007, 2454 of 2007 and 2456 of 2007.  Further, the  

order granted liberty to the Central Government to apply for  

modification of the said arrangement as and when necessary.  

5.  I.A. No. 10 of 2016 in Civil Appeal No. 2456 of 2007 was filed  

by the State of Tamil Nadu wherein Mr. Shekhar Naphade, learned  

senior counsel who had appeared for the applicant, had contended  

that the State of Karnataka had not been complying with the  

directions given by the Tribunal in its final order and that the said  

order had been flagrantly violated.  Further, during the course of  

arguments, Mr. Naphade had pointed out that if the water was not  

released by the State of Karnataka, the ‗samba‘ crops would be  

absolutely damaged which would lead to an unacceptable plight to  

be faced by the farmers of the State of Tamil Nadu.

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6. Per contra, Mr. Fali S. Nariman, learned senior counsel who  

had appeared for the State of Karnataka, had drawn the attention   

of the Bench to paragraph ‗D‘ of Clause IX of the final order of the  

Tribunal which reads as under :-  

―D. The Authority shall properly monitor the working of  monthly schedule with the help of the concerned States  and Central Water Commission for a period of five years  and if any modification/adjustment is needed in the  schedule thereafter, it may be worked out in consultation  with the party States, and help of Central Water  Commission for future adoption without changing the  annual allocation amongst the parties.‖  

   Learned senior counsel for the State of Karnataka had  

submitted that it is obligatory on the part of the State of Tamil  

Nadu to approach the Supervisory Committee that was constituted  

vide notification dated 22nd May, 2013.  Mr. Nariman had also  

drawn the attention of the Bench to paragraphs 2 and 3 of the  

notification which deal with the constitution and the role of the  

Supervisory Committee.  

For better appreciation, we think it condign to reproduce  

the said paragraphs.  They read as under:-  

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―Constitution of the Supervisory Committee:-  

(1) There shall be a Committee under this scheme to  be known as the Supervisory Committee (hereinafter  referred to as the Committee).  

 (2) The Committee referred to in sub-rule(1) shall  consist of the following, namely:-  

 (a) Secretary, the Ministry of  

Water Resources,  Government of India    

Chairman   Ex officio  

(b) Chief Secretaries to the  State, Governments of  Karnataka, Tamil   Nadu,  Kerala and the Union  Territory of Puducherry or  his duly nominated  representative    

Members,   Ex officio  

(c) Chairman, Central  Water Commission    

Members,   Ex officio  

(d) Chief Engineer, Central  Water Commission  Secretary  

Member-  Secretary  

 

3. Role of the Committee:- The role of the Committee  shall be to give effect to the implementation of the  Order dated the 5th February, 2007 of the Tribunal:      Provided that in case of any doubt or difficulty,  the Chairman, Supervisory Committee and, if  necessary, any of the parties may apply to Hon'ble  Supreme Court for appropriate directions with notice  to the other States and the Union Territory.‖  

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 During the course of proceedings of the said I.A. No.10 of  

2016, Mr. Nariman, learned Senior Counsel handed over a note to  

the Bench which contained certain suggestions, foremost of them  

being that the State of Karnataka shall release 10000 cusecs per  

day (about 0.86 TMC) from 7th September, 2016 to 12th September,  

2016.  Mr. Naphade, on the other hand, submitted that instead of  

10000 cusecs per day (about 0.86 TMC), there should be release of  

20000 cusecs of water per day.  

7. The Bench, after giving a patient hearing to the learned  

counsel for both the parties, passed an order on 5th September,  

2016 in the following terms:-   

―(a) The applicant, the State of Tamil Nadu, shall  approach the Supervisory Committee within three days  from today. Response, if any, by the State of Karnataka be  filed within three days therefrom.     (b) The Supervisory Committee shall pass appropriate  direction in this regard within four days from the date of  filing of the reference keeping in view the language  employed in the final order of the Tribunal. Be it clarified,  the Supervisory Committee is bound by the language  used in the order passed by the Tribunal.     (c) Coming to the immediate arrangement, keeping in view  the gesture shown by the State of Karnataka and the  plight that has been projected with agony by Mr.  Naphade, we think it appropriate to direct that 15 cusecs

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of water per day be released at Biligundulu by the State of  Karnataka for ten days.     (d) The State of Tamil Nadu is directed to release water  proportionately to the Union Territory of Puducherry.‖  

8. On 06.09.2016, the matter was taken up as there was a  

mistake as the order dated 05.09.2016 incorrectly mentioned 10  

cusecs and 20 cusecs in paragraph 1 and 15 cusecs in sub-

paragraph (c) which required to be read as 10000 cusecs, 20000  

cusecs and 15000 cusecs respectively.  The corrections were carried  

out on that day.   

9. An application for modification of the order dated 05.09.2016,  

viz., I.A. No.12 of 2016 in I.A. No.10 of 2016 in Civil Appeal No.2456  

of 2007 was mentioned on 11.09.2016 which was taken up on  

12.09.2016 on the basis of an affidavit for urgent hearing.  

10. Vide paragraph 3 of the said affidavit, the deponent had  

submitted that modification of the interim order dated 5th  

September, 2016 passed by this Court was necessary because of  

spontaneous agitations in various parts of the State of Karnataka  

which had paralyzed normal life and resulted in destruction of  

public and private properties worth hundreds of crores of rupees.  

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13    

The deponent had further submitted that modification was required  

having regard to the ground realities, needs and requirements as  

stated in the application.    

11. The Court, after perusal of the said affidavit and the annexed  

application for modification, noted that the application contained  

certain averments which cannot be conceived of to be filed in a  

court of law seeking modification of an earlier order.  The Court  

categorically stated that agitation in spontaneity or propelled by  

some motivation or galvanized by any kind of catalystic component  

can never form the foundation for seeking modification of an order.   

The Court observed that its order was bound to be complied with by  

all concerned and it is the obligation of the executive to maintain  

law and order and to see that the Court‘s order is complied with in  

letter and spirit.  The Court further observed that citizens cannot  

become law unto themselves; and when a court of law passes an  

order, it is the sacred duty of the citizens to obey the same.  The  

Court also expressed anguish over the pleadings in the application  

and also the affidavit filed for urgency and deplored the same.

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12. Mr. Nariman, learned senior counsel appearing for the State of  

Karnataka, unequivocally accepted during the hearing that the  

aforesaid affidavit was erroneously drafted.  However, he contended  

that the prayer in essence required reconsideration of the order.   

The Court thereafter proceeded to deal with the proponements of  

Mr. Nariman in respect of the reliefs sought for in the application.   

The application mainly sought for the modification of order of this  

Court dated 05.09.2016 (as corrected on 06.09.2016) and an order  

to the effect to keep in abeyance Clause (c) of the directions of this  

Court in its order dated 05.09.2016 as corrected on 06.09.2016.  

13. After giving due consideration to the exhaustive arguments  

presented by the senior counsel for both the States, the Court was  

of the view that the prayer of abeyance did not deserve acceptance  

and, accordingly, rejected the same. As far as the prayer for  

modification was concerned, the Court modified the order dated 5th  

September, 2016 to the extent that the State of Karnataka shall  

release 12000 cusecs of water per day and that the said direction  

shall remain in force till 20th September, 2016.  The Court also  

directed the Supervisory Committee to arrive at a decision in  

conformity with the final order of the Tribunal with respect to the

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situation of shortage of water and plight of farmers in both the  

States.  

14. On 20.9.2016, I.A. No.12 of 2016 in I.A. No.6 of 2016 in Civil  

Appeal No.2456 of 2007 was taken up.  After referring to its earlier  

orders, the Court considered the submissions advanced by the  

learned counsel for the parties and took note of the directions of the  

Tribunal for consideration of constituting the Cauvery Management  

Board. The Court, thereafter, directed the Union of India to  

constitute the Cauvery Management Board within four weeks and  

produce before the Court after four weeks the notification indicating  

that the said Board has been constituted.  As an interim measure,  

the Court directed the State of Karnataka to release 6000 cusecs of  

water from 21st September, 2016 till 27th September, 2016.  

15. On 27.09.2016, the Court sought the assistance of the learned  

Attorney General for India to apprise the Central Government to  

discuss with both the States so that an interim solution could be  

arrived at.  On 30.09.2016, the minutes of the proceedings were  

produced by learned Attorney General for India and Mr. Nariman,  

learned senior counsel appearing for the State of Karnataka,

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produced two letters and requested the same to be taken on record  

and the said prayer was acceded to.  Proceeding further, however,  

the Court modified the order dated 5th September, 2016.  The two  

letters pertained to the communication between Mr. Nariman and  

the State Government relating to compliance of this Court‘s order.   

It is not necessary to refer to the episode in detail. It is worthy to  

state here that on 04.10.2016, the matter was taken up as it was  

mentioned by the learned Attorney General for India.  The  

mentioning related to modification of the earlier order.  On that day,  

as the order of this Court was complied with and that sage  

controversy was put to rest. Mr. Nariman assisted the Court. We  

think it necessary to state here that Mr. Nariman had courageously  

lived upto the highest tradition of the Bar and we had recorded our  

uninhibited accession. Be it noted, after hearing learned counsel for  

the parties and Mr. Mukul Rohatgi, learned Attorney General for  

India, the Court constituted a High Power Technical Team to arrive  

at an interim solution and directed the State of Karnataka to  

release 2000 cusecs of water from 7.10.2016 till 18.10.2016.  

16. On the next date of hearing, i.e., 18.10.2016, the report of the  

Committee was filed but it was noticed that the Committee had not

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suggested anything with regard to the quantity of water.  At this  

juncture, the learned Attorney General for India submitted that the  

appeals are not maintainable. The same stand was taken by           

Mr. A.S. Nambiar, learned senior counsel appearing for the Union  

Territory of Puducherry. On that day, the issue also arose for  

consideration of the nature of the interim order. Regarding the  

release of 2000 cusecs of water from 7.10.2016, it was submitted by  

Mr. Madhusudan R. Naik, learned Advocate General of Karnataka  

assisting Mr. Nariman for the State of Karnataka, that the order  

dated 18.10.2016 had been complied with. After noticing the  

submissions with regard to the release of water by way of interim  

measure, it was decided to hear the matter on merits.  On that day,  

the earlier order passed by this Court was reiterated to the effect  

that the executive of both the States shall see to it that peace and  

harmony would be maintained in both the States and that the  

citizens do not become law unto themselves. Further, it was ordered  

that it would be the obligation of the executive to ensure that when  

the matter is heard and the interim order has been passed and that  

when the State of Karnataka is complying with the order, mutuality  

of respect between both the States and the citizens should be

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maintained. The order further impressed upon the fact that  

maintenance of law and order and care for public property is a sign  

of elevated democracy.  

17. We have paraphrased the interim orders as we are disposed to  

think that they deserve to be reproduced as the same is necessary  

for what we are going to say in the final judgment.  

B. Maintainability of the Appeals by Special Leave  

18. As stated earlier, the learned Attorney General for India raised  

the issue with regard to the maintainability of the appeals.  In the  

reported judgment State of Karnataka (supra), the Court has held  

that when judged by the principles of statutory interpretation to  

understand the legislative intendment of Section 6(2), it is clear as  

crystal that the Parliament did not intend to create any kind of  

embargo on the jurisdiction of this Court. The said provision was  

inserted to give the binding effect to the award passed by the  

Tribunal. The Court opined that the fiction has been created for  

that limited purpose. Section 11 of the 1956 Act bars the  

jurisdiction of the courts and needless to say, that is in consonance  

with the language employed in Article 262 of the Constitution. The

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Founding Fathers had not conferred the power on this Court to  

entertain an original suit or complaint and that is luminescent from  

the language employed in Article 131 of the Constitution and from  

the series of pronouncements of this Court. The Court further held  

that Section 6 cannot be interpreted in an absolute mechanical  

manner and the words ―same force as an order or decision‖ cannot  

be treated as an order or decree for the purpose of excluding the  

jurisdiction of this Court.  Elaborating the same, it was held that it  

cannot be a decree as if this Court has adjudicated a matter and  

passed a decree. The Parliament has intended that the same shall  

be executed or abided as if it is a decree of this Court. The Court  

further ruled that a provision should not be interpreted to give a  

different colour which has a technical design rather than serving  

the object of the legislation. The exposition of the principles of law  

relating to fiction, the intendment of the legislature and the  

ultimate purpose and effect of the provision compelled the Court to  

repel the submissions raised on behalf of the Union of India that  

Section 6(2) bars the jurisdiction conferred on this Court under  

Article 136. At that stage, the Court clarified in the following  

words:-

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―We would like to clarify one aspect. The learned Senior  Counsel appearing for the State of Karnataka as well as  the State of Tamil Nadu have commended us to various  authorities which we have already referred to in the  context of Article 136 of the Constitution, but the purpose  behind the said delineation is to show the broad canvas of  the aforesaid constitutional provision in the context of  maintainability of the civil appeals. How the final order  passed by the Tribunal would be adjudged within the  parameters of the said constitutional provision has to be  debated when we finally address the controversy  pertaining to the subject-matter of the civil appeals.‖  

 19. Referring to para 82 of the judgment, it is submitted by            

Mr. Nariman, learned senior counsel for the State of Karnataka,  

that this Court should exercise the wide powers bestowed in it  

under Article 136 of the Constitution in a case of this nature and  

exercise its discretion.  Similar was the submission of learned  

senior counsel appearing for the other States.  Be it clarified that  

each one is a contesting appellant as also respondent.  

20. Keeping in view the controversy at hand, we think it  

appropriate to advert to the other legal issues and appreciate the  

factual score on the required parameters which will be unfolded in  

the course of our deliberations.  We do not presently intend to state  

it as wide or broad approach or restricted or narrow approach. The  

said concept shall be dwelled upon at the relevant stage.

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C. Stand of all parties pertaining to remand of the matter to  the Tribunal after deliberation of the legal issues  

 21. At the commencement of the hearing of the appeals, a serious  

criticism was advanced on behalf of the State of Karnataka that  

after the hearing before the Tribunal was closed, the State of Tamil  

Nadu filed an affidavit which was marked as TN Ext. 1665 and  

when objections were raised, the Tribunal had assured that the said  

document would not be relied upon but unfortunately the Tribunal  

had referred to the contents of the affidavit and relied upon the  

same.  Be it noted, the said affidavit came into existence because of  

the suo motu order passed by the Tribunal on 12.11.2002 which is  

as follows:-  

―During the course of hearing of arguments it transpired  that most of the riparian States which are party to the  proceedings cultivate paddy and allow at least 2-3 inches  of water to remain in fields throughout till the crop  matures. We are told that this is the traditional practice  which is being followed:  

In many States in India paddy crops, after  transplantation, are watered from time to time and a  particular level of water need not remain in the fields  throughout. It need not be pointed out that traditional  practice, which is being followed in Cauvery basin states  obviously will consume and require more water in the  fields.

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Since 1973, different recommendations have been made  requesting the riparian States before us to practice  economy while utilizing waters of river Cauvery.  

Learned Additional Advocate General, appearing on  behalf of the State of Tamil Nadu stated that during last  several years, steps have been taken to improve the water  use efficiency. Similar stand has been taken on behalf of  the States of Karnataka, Kerala and the Union Territory  of Pondicherry.  

It need not be impressed that it better scientific methods  are adopted in cultivation of paddy, the requirement of  water is bound to be less.  All the party States and the Union Territory of  Pondicherry shall file their respective Affidavits within six  weeks from today, as to what steps have already been  taken to reduce the requirement of water for cultivation  and what steps are likely to be taken in near future. In  the Affidavit it should also be stated as to what minimum  delta is required for different crop varieties in their  respective States.‖  

 22. It is assiduously urged that though the said affidavit has been  

filed in reply to the affidavits filed by the State of Karnataka in  

pursuance of the suo motu order passed by the Tribunal, yet the  

affidavit of the State of Tamil Nadu for the first time furnished its  

scientific crop water requirement, that is, a detailed statement of  

computed crop water requirement system fed by Mettur and other  

schemes in the basin and the Tribunal, contrary to the principles of  

law of evidence and in violation of the principal facet of natural

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justice, took the same on record and marked it as Ext. 1665.  The  

Tribunal, as averred by the senior counsel for the State of  

Karnataka, had clarified that the affidavit filed by Tamil Nadu would  

not be relied upon in support of its case and that the case would be  

considered on the facts and documents already brought on record.    

23. The said submission was equally seriously resisted by the  

State of Tamil Nadu by stating that the said affidavit did not contain  

anything new but was only a compilation of the materials already  

brought on record.  As the debate continued, it was suggested to  

the learned counsel for the parties whether it would be advisable to  

remit the matter to the Tribunal on the said score. At this juncture,  

Mr. Nariman, learned senior counsel appearing for the State of  

Karnataka, submitted that considering more than 27 years had  

elapsed from the date of constituting the Tribunal and also  

considering that all the State parties to the dispute were before this  

Court and that each of them had challenged the Tribunal's final  

order, it would be appropriate for this Court to exercise its authority  

under Article 136 of the Constitution of India and decide the matter  

finally. He submitted that as per judicial pronouncements, the  

power of this Court under Article 136 read with Article 142 being

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plenary, is exercisable outside the purview of ordinary law in cases  

where the need of justice demands interference as in the present  

case. The current dispute is a unique one affecting the lives of  

millions of people and the stakes involved are unparalleled. He  

submitted that remanding the matter to the Tribunal for fresh  

consideration would be an exercise in futility and a drain on the  

resources of all the parties concerned which must be eschewed.  

24. We may fruitfully state here that all the learned counsel, at  

least on this issue, unanimously stated that the remand is no  

solution to such a dispute and this Court should decide the legal  

and factual issues so that the controversy is put to rest. Thereafter,  

the hearing of the appeals continued. Accordingly, we shall proceed  

to decide the various legal issues which are of priority and upmost  

concern and thereafter advert to the approach to be adopted in the  

obtaining factual matrix.  

D. Reference of the dispute to the Tribunal  

25. The State of Tamil Nadu lodged a request before the  

Government of India raising a water dispute and requesting for  

adjudication of the same by a Tribunal constituted under Section 3

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of the 1956 Act.  In the said complaint dated 6th July, 1986, it was  

stated on behalf of the State of Tamil Nadu that a water dispute had  

arisen with the Government of Karnataka by reason of the fact that  

the interests of the State of Tamil Nadu and the inhabitants thereof  

in the waters of Cauvery, which is an inter-State river, had been  

prejudicially affected. The relevant part of the said communication  

reads as follows:-   

―(a) the executive action taken by the Karnatka State in  constructing Kabini, Hemavathi, Harangi, Swrnavathi  and other projects and expanding the aycut--    (i) Which executive action has resulted in materially  

diminishing the supply of waters to Tamil Nadu.  (ii) Which executive action has materially affected the  

prescriptive rights of the ayacutdar already acquired  and existing;  

(iii) Which executive action is also in violation of the  1892 and 1924 agreements; and  

 (b) the failure of the Karnataka Government to  implement distribution and control of the Cauvery  waters.    The bilateral negotiations hitherto held between the  States of Karnataka and Tamil Nadu have totally failed.    Also all sincere attempts so far made by the Government  of India to settle this long pending water dispute by  negotiations since 1970 have totally failed.   

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Therefore, this request is made by the Government  of Tamil Nadu to the Government of India under Section  3 of the Inter-State Water Disputes Act, 1956 to refer this  water dispute to a Tribunal.‖  

 26. The complaint referred to the matters connected with the  

dispute and the efforts made for settling the disputes by  

negotiations. The broad features pointed out are the ―River  

Cauvery‖, ―Development of Irrigation in the Cauvery Basin‖, ―The  

Inter-State Agreements of 1892 and 1924‖, ―Violation of the  

aforesaid two agreements by Karnataka‖, ―Tamil Nadu‘s concern‖,  

―Tamil Nadu‘s first call for adjudication in September, 1969‖, ―Tamil  

Nadu‘s formal request for adjudication in February, 1970‖, Tamil  

Nadu‘s  continued participation in the discussion and negotiations‖,  

―Filing of suit by Tamil Nadu in the Supreme Court‖, ―Prime  

Minister‘s advice‖, ―The Cauvery Fact Finding Committee (CFFC)‖,  

―Consideration of the proposals put forth by the Union  

Government‖, ―Last bilateral discussions with Karnataka held on  

23rd November, 1985‖, ―Chief Ministers‘ meeting held at Bangalore  

(now known as Bengaluru) on 16 June, 1986‖ and the narration of  

the events. Thereafter, there was a request for expeditious action for

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referring the dispute to the Tribunal.  The said part reads as  

follows:-  

―From 1974-75 onwards, the Government of Karnataka  has been impounding all the flows in their reservoirs.  Only after their reservoirs are filled up, the surplus flows  are let down. The injury inflicted on this State in the past  decade due to the unilateral action of Karnataka and the  suffering we had in running around for a few TMC of  water every time the crops reached the withering stage  has been briefly stated in note (Enclosure—XXVIII). It is  patent that the Government of Karnataka have badly  violated the inter-State agreements and caused  irreparable harm to the age old irrigation in this State.  Year after year, the realisation at Mettur is falling fast  and thousands of acres in our ayacut in the basin are  forced to remain fallow. The bulk of the existing ayacut in  Tamil Nadu concentrated mainly in Thanjavur and  Thiruchirappalli districts is already gravely affected in  that the cultivation operations are getting long delayed,  traditional double crop lands are getting reduced to  single crop lands and crops even in the single crop lands  are withering and failing for want of adequate wettings at  crucial times. We are convinced that the inordinate delay  in solving the dispute is taken advantage of by the  Government of Karnataka in extending their canal  systems and their ayacut in the new projects and every  day of delay is adding to the injury caused to our existing  irrigation.    

The Government of Tamil Nadu are of the firm view that  the "water dispute with the Government of Karnataka  has arisen by reason of the fact that the interests of the  State of Tamil Nadu and the inhabitants thereof in the  waters of Cauvery, which is an inter-State liver have been  affected prejudicially by —  

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(a) the executive action taken by the Karnataka State  in constructing Kabini, Hemavathi, Harangi,  Swarnavathi and other projects and expanding the  ayacuts:  

 (i) which executive action has resulted in  

materially diminishing the supply of waters to  Tamil Nadu;  

 (ii) which executive action has materially affected  

the prescriptive rights of the avacutdars  already acquired and 'existing; and  

 (iii) which executive action is also in violation of  

the 1892 and 1924 Agreements ; and    

(b) the failure of the Karnataka Government, to  implement the terms of the 1892 and 1924  Agreements relating to the use, distribution and  control of the Cauvery waters.  

 The bilateral negotiations hitherto held between the  

States of Karnataka and Tamil Nadu have totally failed.  

 

Also all sincere attempts so far made by the Government  of India to settle this long pending water dispute by  negotiations since 1970 have, totally failed.    I am therefore to request the Central Government to refer  

the Cauvery Water Dispute to a Tribunal for adjudication  

under the provisions of Section 4 of the inter-State Water  

Disputes Act, 1956 without any delay.‖  

 27. On the basis of the aforesaid letter of request, the Central  

Government, by the notification dated June 2, 1990, constituted  

the Tribunal and passed the following order of reference:-

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―No. 21/1/90-WD                

Government of India           

(Bharat Sarkar)              

Ministry of Water Resources         

(Jal Sansadhan Mantralaya)            

New Delhi, June 2, 1990  

 

Reference  

In the exercise of the powers conferred by sub- section (1) of Section 5, of the Interstate Water  Disputes Act, 1956 (33 of 1956), the Central  Government hereby refers to the Cauvery Water  Disputes Tribunal for adjudication, the water disputes  regarding the interstate river Cauvery and the river  valley thereof, emerging from Letter No. 17527/K2/82- 110 dated July 6, 1986 from the Government of Tamil  Nadu (copy enclosed).  

 

                                  By order and in the name    

                                  of the President of India     

                                        (M.A. Chitale)               

                                Secretary, (Water Resources)  

                              Chairman,  

                     The Cauvery Water Disputes Tribunal,                                              New Delhi‖  

   

E. The initial proceedings before the Tribunal  

28. During the pendency of the reference, the Government of  

Tamil Nadu filed CMP No.4 of 1990 praying that the State of  

Karnataka be directed not to impound or utilize the water of

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Cauvery river beyond the extent impounded or utilized by them as  

on May 31, 1972 as agreed to by the Chief Ministers of the basin  

States and the Union of India for irrigation and power.  It was also  

prayed that an order be passed restraining the State of Karnataka  

from notifying any new projects, dams, reservoirs, canals, etc.,  

and/or from proceeding further with the construction of projects,  

dams, reservoirs, canals, etc., in the Cauvery basin.  The Union  

Territory of Puducherry filed CMP No. 5 of 1990 on 8.9.1990  

seeking an interim order directing the State of Karnataka and  

Kerala to release the water already agreed to during the months of  

September to March.  An emergent petition was filed by the State of  

Tamil Nadu forming the subject matter of CMP No.9 of 1990 to  

direct the State of Karnataka to release at least 20 TMC of water as  

the first installment pending formal orders in CMP No.4 of 1990.   

The said prayers were seriously opposed by the State of Karnataka  

and the State of Kerala on merits as well as on a preliminary  

objection that the Tribunal had no power or jurisdiction to entertain  

the said petitions and to grant any interim relief.  The Tribunal  

upheld the objections raised by the State of Karnataka and the  

State of Kerala holding that the said applications were not

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maintainable in law and, accordingly, dismissed the same.   

Aggrieved by the said orders, special leave petition was filed for  

seeking leave to assail the said order.  This Court passed the  

judgment in State of Tamil Nadu v. State of Karnataka and  

others2 wherein the majority view stated by N.M. Kasliwal, J. is  

extracted below:-  

―22. The above passage clearly goes to show that the  State of Tamil Nadu was claiming for an immediate relief  as year after year, the realisation at Mettur was falling  fast and thousands of acres in their ayacut in the basin  were forced to remain fallow. It was specifically  mentioned that the inordinate delay in solving the  dispute is taken advantage of by the Government of  Karnataka in extending their canal systems and their  ayacut in the new projects and every day of delay is  adding to the injury caused to their existing irrigation.  The Tribunal was thus clearly wrong in holding that the  Central Government had not made any reference for  granting any interim relief. We are not concerned,  whether the appellants are entitled or not, for any interim  relief on merits, but we are clearly of the view that the  reliefs prayed by the appellants in their C.M.P. Nos. 4, 5  and 9 of 1990 clearly come within the purview of the  dispute referred by the Central Government under  Section 5 of the Act. The Tribunal has not held that it  had no incidental and ancillary powers for granting an  interim relief, but it has refused to entertain the C.M.P.  Nos. 4, 5 and 9 on the ground that the reliefs prayed in  these applications had not been referred by the Central  Government. In view of the above circumstances we think  it is not necessary for us to decide in this case, the larger  

                                                           2 1991 Supp (1) SCC 240

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question whether a Tribunal constituted under the  Interstate Water Disputes Act has any power or not to  grant any interim relief. In the present case the  appellants become entitled to succeed on the basis of the  finding recorded by us in their favour that the reliefs  prayed by them in their C.M.P. Nos. 4, 5 and 9 of 1990  are covered in the reference made by the Central  Government. It may also be noted that at the fag end of  the arguments it was submitted before us on behalf of  the State of Karnataka that they were agreeable to  proceed with the CMPs on merits before the Tribunal on  the terms that all party States agreed that all questions  arising out of or connected with or relevant to the water  dispute (set out in the respective pleadings of the  respective parties), including all applications for interim  directions/reliefs by party States be determined by the  Tribunal on merits. However, the above terms were not  agreeable to the State of Tamil Nadu as such we have  decided the appeals on merits.‖  

 

Sahai, J. opined thus:-  

―I agree with brother Kasliwal, J. that under the  constitutional set up it is one of the primary  responsibilities of this Court to determine jurisdiction  power and limits of any tribunal or authority created  under a statute. But I have reservations on other issues  including the construction of the letter dated July 6,  1986. However, it is not necessary for me to express any  opinion on it since what started as an issue of profound  constitutional and legal importance fizzled out when the  States of Karnataka and Kerala stated through their  counsel that they were agreeable for determination of the  applications for interim directions on merits.‖  

29. In view of the aforesaid directions, the Tribunal heard the said  

applications of Karnataka and Puducherry.  Before the Tribunal,

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objections were again raised on behalf of the State of Karnataka  

with regard to the maintainability of the applications filed by the  

State of Tamil Nadu and Union Territory of Puducherry for interim  

relief. The Tribunal did not countenance that objection and  

expressed the view that the directions given by this Court were  

binding on it.  The Tribunal proceeded to decide the applications on  

merits and, vide its order dated June 25, 1991, and on a detailed  

analysis of the materials available, it directed the State of  

Karnataka, as an interim measure, to ensure that 205 TMC of water  

is available in Tamil Nadu's Mettur Reservoir in a year from June to  

May.  The modalities for regulating the release of water so fixed  

were also laid down with a further direction that 6 TMC of water for  

Karaikal region of the Union Territory of Puducherry would be  

delivered by the State of Tamil Nadu.  The State of Karnataka was  

restrained from increasing its area under irrigation by the waters of  

the river of Cauvery beyond the existing 11.2 lakh acres. In issuing  

this direction, the Tribunal was guided by the consideration that  

pending final adjudication, the rights of the parties ought to be  

preserved and it was also ensured that by the unilateral action of  

one party, the other party was not prejudiced from getting

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appropriate relief at the time of passing of final orders. In  

quantifying the volume of 205 TMC of water to be released by the  

State of Karnataka from its reservoirs for Tamil Nadu's Mettur  

reservoir, the Tribunal construed the average of the annual flow of  

waters of the river Cauvery into the reservoir of Mettur Dam in  

Tamil Nadu as the reasonable basis.  For the said purpose, amongst  

other aspects, it took note of the inflow of water into Mettur Dam for  

a period of 10 years, i.e., 1980-81 to 1989-90 and worked out the  

figure by leaving out of scrutiny the abnormally good years and bad  

years and, thus, arrived at the figure of 205 TMC. While  

entertaining the grievance of State of Tamil Nadu to the effect that  

the releases ought to be made timely to meet the need of cultivation  

of crops for which it set down the norms, it noted that the State of  

Kerala had not applied for any interim order.  

F. The issue of Ordinance by the State of Karnataka and the  Presidential Reference  

30. The State of Karnataka, however, on 25.07.1991, promulgated  

an Ordinance captioned ―The Karnataka Cauvery Basin Irrigation  

Protection Ordinance, 1991‖ which, for all intents and purposes,

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sought to negate the effect of the interim order dated 25.06.1991.    

The said Ordinance reads as follows:-  

―An Ordinance to provide in the interest of the general  public for the protection and preservation of irrigation in  irrigable areas of the Cauvery basin in Karnataka  dependent on the waters of the Cauvery river and its  tributaries.  

 

Whereas the Karnataka Legislative Council is not in  session and the Governor of Karnataka is satisfied that  circumstances exist which render it necessary for him to  take immediate action, for the protection and  preservation of irrigation in the irrigable areas of the  Cauvery basin in Karnataka dependent on the water of  Cauvery river and its tributaries.  

 

Now, therefore, in exercise of the power conferred under  clause (1) of Article 213 of Constitution of India, I,  Khurshed Alam Khan, Governor of Karnataka, am  pleased to promulgate the following Ordinance, namely:  

 

1. Short title, extent and commencement.— (1) This  Ordinance may be called the Karnataka Cauvery Basin  Irrigation Protection Ordinance, 1991.  

 

(2) It extends to the whole of the State of Karnataka.  

 

(3) It shall come into force at once.  

 

2. Definition.— Unless the context otherwise requires:  

(a) ‗Cauvery basin‘ means the basin area of the Cauvery  river and its tributaries lying within the territory of the  State of Karnataka.  

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(b) ‗Irrigable area‘ means the areas specified in the  Schedule.  

 

(c) ‗Schedule‘ means the Schedule annexed to this  Ordinance.  

 

(d) ‗Water year‘ means the year commencing with the first  of June of a calendar year and ending with the thirty-first  of May of the next calendar year.  

 

3. Protection of irrigation in irrigable area.— (1) It shall be  the duty of the State Government to protect, preserve and  maintain irrigation from the waters of the Cauvery river  and its tributaries in the irrigable area under the various  projects specified in the Schedule.  

 

(2) For the purpose of giving effect to sub-section (1) the  State Government may abstract or cause to be  abstracted, during every water year, such quantity of  water as it may deem requisite, from the flows of the  Cauvery river and its tributaries, in such manner and  during such intervals as the State Government or any  officer, not below the rank of an Engineer-in-Chief  designated by it, may deem fit and proper.  

 

4. Overriding effect of the Ordinance.— The provisions of  this Ordinance, (and of any Rules and Orders made  thereunder), shall have effect notwithstanding anything  contained in any order, report or decision of any Court or  Tribunal (whether made before or after the  commencement of this Ordinance), save and except a  final decision under the provisions of sub-section (2) of  Section 5 read with Section 6 of the Inter-State Water  Disputes Act, 1956.  

 

5. Power to remove difficulties.— If any difficulty arises in  giving effect to the provisions of this Ordinance, the State

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Government may, by order, as occasion requires, do  anything (not inconsistent with the provisions of this  Ordinance) which appears to be necessary for purpose of  removing the difficulty.  

 

6. Power to make rules.— (1) The State Government may,  by notification in the official Gazette make rules to carry  out the purpose of this Ordinance.  

 (2) Every rule made under this Ordinance shall be laid as  soon as be after it is made, before each House of the  State legislature while it is in session for a total period of  thirty days which may be comprised in one session or in  two or more sessions and if before the expiry of the said  period, either House of the State legislature makes any  modification in any rule or order or directs that any rule  or order shall not have effect, and if the modification or  direction is agreed to by the other House, such rule or  order shall thereafter have effect only in such modified  form or be no effect, as the case may be.‖  

 31. The notification mentioned a schedule of area which refers to  

irrigable areas in the Cauvery basin of Karnataka under various  

projects including minor irrigation works.  The State of Karnataka  

instituted a suit under Article 131 against the State of Tamil Nadu  

and others seeking a declaration that the order of the Tribunal  

granting interim relief was without jurisdiction.  In the meantime,  

the Ordinance stood replaced by the Act 27 of 1991 and the said  

Act reproduced the provisions of the Ordinance in verbatim except  

that in Section 4 of the Act, the words ‗any court‘ were omitted and

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Section 7 was added repealing the Ordinance.  After the Act was  

passed, the President under Article 143, on July 27, 1991, referred  

three questions for opinion of this Court.  The reference reads as  

follows:-  

―WHEREAS, in exercise of the powers conferred by  Section 4 of the Inter-State Water Disputes Act, 1956  (hereinafter referred to as ―the Act‖), the Central  Government constituted a Water Disputes Tribunal called  ―the Cauvery Water Disputes Tribunal‖ (hereinafter called  ―the Tribunal‖) by a notification dated June 2, 1990, a  copy whereof is annexed hereto, for the adjudication of  the Water Dispute regarding the Inter-State River  Cauvery;  

 

WHEREAS on June 25, 1991, the Tribunal passed an  interim order (hereinafter referred to as ―the Order‖), a  copy whereof is annexed hereto;  

 

WHEREAS, differences have arisen with regard to  certain aspects of the Order;  

 

WHEREAS, on July 25, 1991, the Governor of  Karnataka promulgated the Karnataka Cauvery Basin  Irrigation Protection Ordinance, 1991 (hereinafter  referred to as ―the Ordinance‖), a copy whereof is  annexed hereto;  

 

WHEREAS, doubts have been expressed with regard to  the constitutional validity of the Ordinance and its  provisions;  

 

WHEREAS, there is likelihood of the constitutional  validity of the provisions of the Ordinance, and any

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action taken thereunder, being challenged in courts of  law involving protracted and avoidable litigation;  

 

WHEREAS, the said differences and doubts have given  rise to a public controversy which may lead to  undesirable consequences;  

 

AND WHEREAS, in view of what is hereinbefore stated,  it appears to me that the following questions of law have  arisen and are of such nature and of such public  importance that it is expedient to obtain the opinion of  the Supreme Court of India thereon;  

 

NOW, THEREFORE, in exercise of the powers  conferred upon me by clause (1) of Article 143 of the  Constitution of India, I, Ramaswamy Venkataraman,  President of India, hereby refer the following questions to  the Supreme Court of India for consideration and report  thereon, namely:  

 

(1) Whether the Ordinance and the provisions thereof are  in accordance with the provisions of the Constitution;  

 

(2) (i) Whether the Order of the Tribunal constitutes a  report and a decision within the meaning of Section 5(2)  of the Act; and  

 

(ii) Whether the Order of the Tribunal is required to be  published by the Central Government in order to make it  effective;  

 (3) Whether a Water Disputes Tribunal constituted under  the Act is competent to grant any interim relief to the  parties to the dispute.‖  

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32. To deal with the reference, the Constitution Bench narrated  

the factual background that had led to the reference.  After  

analyzing various aspects, the opinion was expounded in the  

following terms:-  

―Question No. 1: The Karnataka Cauvery Basin Irrigation  Protection Ordinance, 1991 passed by the Governor of  Karnataka on July 25, 1991 (now the Act) is beyond the  legislative competence of the State and is, therefore, ultra  vires the Constitution.  

 

Question No. 2: (i) The order of the Tribunal dated June  25, 1991 constitutes report and decision within the  meaning of Section 5(2) of the Inter-State Water Disputes  Act, 1956;  

 

(ii) the said Order is, therefore, required to be published  by the Central Government in the official Gazette under  Section 6 of the Act in order to make it effective.  

 

Question No. 3: (i) A Water Disputes Tribunal constituted  under the Act is competent to grant any interim relief to  the parties to the dispute when a reference for such relief  is made by the Central Government;  

 (ii) whether the Tribunal has power to grant interim relief  when no reference is made by the Central Government  for such relief is a question which does not arise in the  facts and circumstances under which the Reference is  made. Hence we do not deem it necessary to answer the  same.‖  

 33. The aforesaid decision also noted a certain aspect which has  

been highlighted by the State of Karnataka in the course of

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arguments and we shall be dealing with it in extenso at a later  

stage. In paragraph 4 of the judgment, the Court stated:-  

―4. There were two agreements of 1892 and 1924 for  sharing the water of the river between the areas which  are predominantly today comprised in the States of  Karnataka and Tamil Nadu, and which were at the  time of the agreements comprised in the then  Presidency of Madras on the one hand and the State of  Mysore on the other. The last agreement expired in  1974….‖   

 

Again in paragraph 11, the Court observed:-  

―……  In the said letter, Tamil Nadu primarily made a  grievance against the construction of works in the  Karnataka area and the appropriation of water  upstream so as to prejudice the interests downstream  in the State of Tamil Nadu. It also sought the  implementation of the agreements of 1892 and 1924  which had expired in 1974.‖  

34. The State of Karnataka, still undaunted by such reverses, filed  

an application before the Tribunal to recall its order dated  

25.06.1991 citing several grounds justifying such review.  The  

Tribunal, vide its order dated 07.04.1992, however, declined to  

interfere with its earlier order dated 25.06.1991 with the  

observation that in case, thereafter, there was any change in  

circumstance or undue hardship in a particular year to any party,   

it would be open to such party to approach it for appropriate

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orders. The stage being thus set, following the submissions of the  

respective statements of cases, counters and rejoinders, the  

Tribunal framed the following issues:-  

―(1)  Are both the Agreements of 1892 and 1924 or either  of them, invalid?  

 

(2)  Are both the Agreements of 1892 and 1924 or either  of them invalid because of the alleged oppression or  because the same were between the "unequal  Riparian States" as claimed by the State of  Karnataka?  

 

(3)  Are both the Agreements of 1892 and 1924 binding  and enforceable upon all the parties to the present  reference (dispute)?  

 

(4)  Are both the Agreements of 1892 and 1924, in so  far as the river Cauvery and its tributaries are  concerned invalid, on the ground that the then  Chief Commissioner's Province of Coorg, Podukottai  State, Travancore State and the French settlement  of Pondicherry and Karaikal, were not parties to the  said Agreement?  

 

(5)  Whether the circumstances, that, the Agreements of  1892 and 1924 were not executed also on behalf of  the then Chief Commissioner's Province of Coorg,  Podukottai State, Travancore State and the French  settlement of Pondicherry and Karaikal, made the  said Agreements not binding and unenforceable  against parties to the present reference.  

 

(6)  Is the State of Karnataka estopped from challenging  both the Agreements of 1892 and 1924 or either of  them, on the ground that it had said to have been  acted upon?  

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(7)  Is the State of Karnataka entitled to contend that in  any view of the matter the State of Tamil Nadu had  waived the rights claimed by it under the  Agreements of 1892 and 1924?  

 

(8)  Has there been any breach of both the Agreements  of 1892 and 1924 or either of them, by any of the  States. If so, what is the effect of any such breach  upon the rights of the parties to the present  reference?  

 

(9)  Did both the Agreements of 1892 and 1924 or either  of them provide for a fair and equitable distribution  of waters of the river Cauvery and its tributaries to  the parties of these Agreements?  

 

(10) (i) Could there be prescriptive rights as claimed by  the State of Tamil Nadu/Union Territory of  Pondicherry, in their pleadings.  

 

 (ii) If the answer to (i) is in affirmative, what was the  nature of such prescriptive rights, and  

 

 (iii) Whether the Agreements of 1892 and 1924 or  either of them, were in recognition of the  prescriptive rights as claimed by the State of Tamil  Nadu?  

 

(11)  Have both the Agreements of 1892 and 1924 or  either of them ceased to be operative and  enforceable and binding because of subsequent  events including enactment of various laws and  happening of changed circumstances?  

 

(12) What would be the true and proper construction of  both the Agreements of 1892 and 1924, and their  legal consequences?  

 

(13)  Were the Rules of Regulation in Annexure I to the  Agreement of 1924 arbitrary, unconscionable and

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excessive to the requirements of the areas which  then formed part of the Province of Madras?  

 

(14) Whether the Rules and Regulation in Annexure I to  the Agreement of 1924, are arbitrary and  inequitable on the ground that the same were  excessive to the requirements of the areas which  now form the part of the State of Tamil Nadu?  

 

(15)  Does the entire Agreement of 1924 stand terminated  at the expiry of 50 years from the date of its  execution? Does not the said agreement continue to  subsist even after the expiry of the period of 50  years, subject to the modifications to be made to it  in accordance with clause 10(xi) of the same  Agreement? What is the true scope and effect of  clause 10(xi) of the Agreement?  

 

(16)  If the answer to the first part of issue 15 is in the  affirmative, whether the 1892 Agreement ought to  continue in force until a new Agreement is entered  into or the respective rights of the basin States are  determined in accordance with law?  

 

(17)  What is the present relevance and also the effect of  the deliberations of the Cauvery Fact Finding  Committee, and of the Study Team conducted by  Shri CC Patel, Additional Secretary to the  Government of India, and also of reports, measures  and surveys conducted by other agencies?  

 

(18)  Upon a true and proper assessment made according  to the reliable and scientific method, what would be  the approximate available surface waters of the  Cauvery basin including the delta region?  

 

(19) Whether the Agreement of 1892 was operative and  enforceable also in respect of those tributaries of the  river Cauvery which were not specifically mentioned  in the Schedule 'A' to the said Agreement?

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(20)  What is the extent of additional/alternative means  of water resources available in the Cauvery basin by  appropriate exploitation of ground water potentials  and by trans-basin diversion?  

 

(21)  What is the approximate volume of ground water in  each one of the States/Union Territory which are  parties to the Reference and whether the said  availability of ground water, if any, should be  relevant in making fair and equitable distribution of  the Cauvery river waters?  

 

(22)  What should be the basis on which the availability  of waters be determined for apportionment, namely,  dependability or on percentage basis? If it is on  percentage basis, what ought to be the said  percentage?  

 

(23)  Whether there is wastage of waters in appreciable  volume or quantity, either in the basin or in the  delta areas of the Cauvery river? If so, what is its  effect, if any, on the fair and equitable distribution  of waters of the river Cauvery?  

 

(24)  Whether directions need be issued to the parties for  ensuring that the cropping patterns are compatible  with the rainfall and the river flows and other  relevant factors and whether such directions, if any,  would be feasible and germane for making equitable  and fair distribution of the waters of the river  Cauvery?  

 

(25)  What is the extent of the return flow of water used  in irrigation by the different parties and what would  be its effect on the apportionment of Cauvery waters  among them?  

 

(26)  What is the extent of drought prone/affected areas  in the Cauvery basin region in each of the party

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States, and what is its effect, if any, in making  equitable apportionment of waters?  

 

(27)  Should trans-basin diversion of the water of rivers  Kabini and Bhavani be permitted for generation of  power and for irrigation and water supply by the  State of Kerala? If so, to what extent and subject to  what conditions and with what safeguards?  

 

(28)  Whether generation of power by trans-basin  diversion of water by the parties would be legal and  justified, particularly, if a part of such power would  be utilised by the people of the river basin itself?  

 

(29)  Are the States of Karnataka and Tamil Nadu  resorting to trans-basin diversion of the waters of  river Cauvery? If so, whether those States can be  permitted to object to the proposed trans-basin  diversion of the water by the State of Kerala?  

 

(30)  Should any preference or priority be given to  utilization of water in a manner such that it can  generate power as well as meet the needs of  irrigation and water supply within the  basin/outside the basin area?  

 

(31) What is the extent of the contribution by the  different States to the total flow in the Cauvery river  and what would be its relevance for equitable  apportionment of waters to the party States?  

 

(32) Whether directions are required to be issued to  ensure that the waters of the Cauvery and its  tributaries maybe developed by each of the States,  singly or jointly, to generate maximum hydroelectric  power without detriment to irrigation uses?  

 

(33) Is the State of Karnataka entitled to compensation  for the loss suffered as averred in paragraphs 18.9  to 18.11 of the Statement of Case of Karnataka and

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as per averments in paragraphs 34 to 41 of the  Counter of Karnataka to the Statement of Case of  Tamil Nadu?  

 

(34) Whether any order/direction should be issued upon  any one or more of the States for regulated release  of the Cauvery waters and whether in that event  compensation is to be awarded in favour of the  parties, prejudicially affected thereby?  

 

(35)  To what extent should Kerala be permitted to utilise  the waters generated in Kerala when such  utilisation in Kerala would secure either more or  equal benefit for the country and its people than by  its utilisation in any of the other States?  

 

(36)  Whether the State of Kerala requires a part of  Cauvery water for generation of power, and, if so, to  what extent?  

 

(37)  Whether shortage of food in any of the States would  be a relevant factor to be taken into consideration in  making the apportionment of the Cauvery water?  

 

(38)  Whether the backwardness, under-developed and  allegedly neglected area of a particular State would  be relevant matters in making a fair and equitable  distribution of the water of the Cauvery river?  

 

(39)  Whether the construction works executed by the  State of Tamil Nadu in the Upper Bhavani,  Vargarpallam West and Vargarpallam East, have  unreasonably deprived the rights of the State of  Kerala in the natural flow of the waters of the river  Cauvery and, if so, to what effect?  

 

(40)  Whether the executive action taken by Karnataka in  constructing Kabini, Hemavathi, Harangi,  Suvarnavathy and other projects and expanding its  ayacuts has prejudicially affected the interests of

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Tamil Nadu and Pondicherry, materially diminished  the supply of waters to Tamil Nadu and Pondicherry  and materially affected the prescriptive rights  claimed by Tamil Nadu and Pondicherry on behalf of  their ayacutdars?  

 

(41)  Whether the above said executive action taken by  Karnataka is in violation of 1892 and 1924  Agreements?  

 

(42)  Whether the State of Tamil Nadu is entitled to  compensation for the loss, damage and injury  caused by the failure on the part of Karnataka to  implement the terms of 1924 Agreement after 1974?  

 

(43)  If the answer to the above issue No.42 is in the  affirmative, what is the amount of compensation to  which Tamil Nadu is entitled?  

 

(44)  What is the equitable share of the Union Territory of  Pondicherry in the waters of the inter-State river  Cauvery?  

 

(45)  Is the understanding reached between the then  Governor of French Settlement in India Pondicherry  and the then Governor of Madras on 6thSeptember,  1926 to maintain adequate supply of water to the  French Territory still subsisting and as such  enforceable against the State of Tamil Nadu?  

 

(46)  Whether the projects executed by the States of  Karnataka and Tamil Nadu have unreasonably  impaired the free flow of water of the river Cauvery  into the Union Territory of Pondicherry?  

 

(47)  On what basis should the available waters be  determined?  

 

(48)  How and on what basis should the equitable  apportionment be made?  

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(49)  What directions, if any, should be given for the  equitable apportionment and for the beneficial use  of the waters of the river Cauvery and its  tributaries?  

 

(50)  What directions, if any, are required to be given  regarding the sharing of distress and surplus  among the concerned parties to the reference in the  event of the waters of the Cauvery falling short of  the allocated quantum or being surplus to the  same?‖  

 

35. Subsequent thereto, evidence was recorded.  However, prior to  

the arguments, the issues, for the purpose of convenience, were  

regrouped finally as hereunder:-  

―Sl.No.   Subject             Issue No.  1.  Agreements of 1892 and 1924  a)  Arbitrary and inequitable     9, 13 & 14  b) Prescriptive rights and other claims   10 & 40  c) Construction and review     of agreements       12, 15 & 16  d) Breach of agreements and     Consequences       8, 33, 40 to 43  e) Constitutional and legal     1 to 7,11 & 19    validity and enforceability    2. Availability of water –    surface flows, additional/               18, 20 to 22, 25,    alternative resources          27, 29, 31 & 47    3. Equitable apportionment and    26, 31, 34,37,     related subjects:      38, 47 to 50  i)  Cropping pattern  ii) Trans-basin diversion  iii) Relevant date of apportionment

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iv) Relevance of projects completed    or otherwise.‖  

36. Reverting to the sequence of events, the Central Government  

finally, to give effect to the interim order dated 25.06.1991 passed  

by the Tribunal, by notification dated 11.08.1998, framed a scheme  

titled ―The Cauvery Water (Implementation of the   

Interim Order of 1991 and all subsequent Related Orders of the  

Tribunal) Scheme, 1998 which, amongst others, provided for the  

constitution of the Cauvery River Authority, delineated its role,  

powers and functions.  

37. The Cauvery River Authority (Conduct of Business) Rules,  

1998 were also framed and given effect to from 14.07.2000 in order  

to regulate the conduct of business of the Cauvery River Authority  

as provided in Clause 3(2) of the Cauvery Water (Implementation of  

the Interim Order of 1991 and all subsequent Related Orders of the  

Tribunal).  

G. The genesis of the controversy  

38. Having stated the issues framed before the Tribunal, we would  

have proceeded to deal with the primary legal issues. However, it is  

requisite to state the genesis of the reference to the Tribunal.

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Having narrated the facts to this extent, we think it appropriate to  

go to the narration of events which have been graphically exposited  

before us.  It goes back to the year 1799. We do not intend to refer  

to the unnecessary facets except those which had been expounded  

to espouse the legal aspect.  The first agreement between the  

Madras Presidency and the State of Mysore was entered into in the  

year 1892. Prior to entering into the said agreement, there was  

correspondence between the British Resident in Mysore and the  

Government of Madras.  It is worthy to note here that after the  

defeat of Tipu Sultan by the British, the Wadiyars, Rulers of the  

State of Mysore, were decored with the crown under Subsidiary  

Alliance Treaty in 1799.  The State of Mysore undertook certain  

works in its territory pertaining to restoration of river which was  

protested by the Collector of Tanjore in the Madras Presidency.  The  

correspondence continued which is not necessary to be referred to.   

In the year 1881, the Viceroy and the Governor General of India, by  

an Instrument of Transfer 1881, restored the administration of the  

Princely State of Mysore to another scion of the Wadiyar family by  

signing the ―Sanad‖ described as ―Instrument of Transfer‖. Be it  

stated here, the State of Karnataka asserts that it was not a treaty

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but a ―Sanad‖ as is reflected from the communication made by the  

British Foreign Secretary in his dispatch of 1874. The relevant part  

reads as follows:-  

"He is in reality the recipient of favours - the person  who benefits by the avowedly liberal policy of  Government - and it seems to me to be in every way  more becoming that the Government should attach  its own conditions to its gift, and that these should  be set forth in a Sanad or patent to be granted by  Government to the Maharaja."  

39. As contended by the State of Karnataka, the ―Instrument of  

Transfer‖ of 1881 placed the Maharaja in possession of the  

territories of Mysore and in the administration thereof, and declared  

that he would be entitled to hold possession thereof and administer  

them only so long as he fulfilled the conditions prescribed in the  

Instrument of Transfer.  Emphasis has been laid on paragraphs 22  

and 23 of the said instrument.  After the year 1881, the British  

Government of Madras Presidency raised objections as regards the  

fact that there was continued implementation of the schemes for  

restoration of tanks in Mysore by stating that the Presidency of  

Madras had a right to uninterrupted natural flow in the river.  On  

13th June, 1889, the British Resident in Mysore thought it  

appropriate to remind the Dewan of Mysore that the British

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Resident could not accept the Dewan‘s stand and that Mysore had  

the right to utilize to the fullest extent the natural water forces  

flowing through its territory.  The relevant part of the letter reads  

thus:-  

"In the first place international law is not applicable to a  feudatory State like Mysore in its dealings with the  paramount power. Even if it were so, international law  would not give Mysore the right claimed. Its position with  reference to Madras territory is something similar to that  of Switzerland ... The principle which should be taken as  your guide in this important question is that no scheme  for stopping the flow of water from Mysore into Madras  territory will be permitted if it can be shown to be  detrimental to the interests of the latter.‖  

 40.   On 20.11.1889, the British Government of Madras Presidency  

issued the following order:-  

―The Mysore Government cannot claim to improve its  irrigation works by impounding or diverting the supply of  streams which feed works in British territory and to the  water of which the British Government has acquired a  prescriptive right.‖  

41. As the factual matrix would unroll, on 10.05.1890, a  

conference was held at Ooty where the Princely State of Mysore put  

forward its claim for the restoration of irrigation works which had  

been inaugurated during the British Government Administration in  

Mysore (1831-1881), but the claim was rejected by the then British

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Resident who formally expressed the opinion that the assertion of  

unlimited rights of Mysore was extreme and untenable. The  

minutes, among other things, recorded thus:-  

"... After some argument the Diwan stated his position as  follows: ...Madras rights extend only to the supply which  has been actually turned to account for irrigation..."  

"Mr. Stokes said that ...He refused to admit that the  Madras rights to the flow in the rivers was limited to the  amount actually turned to account for irrigation, and  contended that Madras is entitled by prescription to the  whole flow allowed to pass the frontier, at which point  Mysore loses all right or interest in it..."  

42. As the time passed, the Government of India, on 21st August,  

1891, clarified in a publication in the Official Gazette of India No.  

1700/E the relationship between the Government of India as  

represented by the Queen Empress of India on the one hand and  

the ―native States‖ in India on the other. It read as follows:-  

"The principles of International Law have no bearing  upon the relations between the Government of India as  representing the Queen Empress on the one hand, and  the native States under the suzerainty of her Majesty on  the other. The paramount supremacy of the former,  presupposes and implies the subordination of the latter."  

[emphasis is supplied]  43. On 21.01.1892, the order was passed by the British  

Government of Madras directing that the consent of Madras  

Government should be obtained before the new reservoir is

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constructed within the Mysore State and in the event of  

disagreement between the two Governments, the matter has to be  

settled by arbitration.    

44. In view of the above, the agreement was entered into between  

the Madras Government and State of Mysore on 18.02.1892.   

Clause 1 defines New Irrigation Reservoirs.  Clause 3 defines Repair  

of Irrigation Reservoirs. Clause 4 states that any increase of  

capacity other than what falls under ―Repair of Irrigation  

Reservoirs‖ as defined shall be regarded as a ―New Irrigation  

Reservoir‖. Clauses 2, 3 and 5 are reproduced below:-  

―II. The Mysore Government, shall not, without the  previous consent of the Madras Government, or before a  decision under rule 4 below, build (a) any ―New Irrigation  Reservoirs‖ across any part of the fifteen main rivers  named in the appended Schedule A; or across any stream  named in Schedule B below the point specified in  Column 5 of the said Schedule B, or in any drainage area  specified in the said Schedule B, or (b) any ―new anaicut‖  across the streams of Schedule A, Nos. 4 to 9 and 14 and  15, or across any of the streams of Schedule B, or across  the following streams of Schedule A, lower than the  points specified hereunder:  

 

Across  1. Tungabhadra – lower than the road crossing  at Honhalli,  

Across 10. Cauvery – lower than the Ramaswami anaicut,  and

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Across 13. Kabani – lower than the Rampur anaicut.   

 

III. When the Mysore Government desires to construct  any ―New Irrigation Reservoir‖ or any new anaicut the  previous consent of the Madras Government under the  last preceding rule, then full information regarding the  proposed work shall be forwarded to the Madras  Government and the consent of that Government shall be  obtained previous to the actual commencement of work.  The Madras Government shall be bound not to refuse  such consent except for the protection of prescriptive  right already acquired and actually existing, the  existence, extent and nature of such right and the mode  of exercising it being in every case determined in  accordance with the law on the subject of prescriptive  right to use of water and in accordance with what is fair  and reasonable under all the circumstances of each  individual case.  

 

V. The consent of the Madras Government is given to new  irrigation reservoirs specified in the appended Schedule  C, with the exception of the Srinivasasagara new  reservoir across the Pennar, the Ramasamudram new  reservoir across the Chitravati and the Venkatesasagara  new reservoir across Papaghni. Should, owing to the  omission of the Mysore Government to make or maintain  these works in a reasonable adequate standard of safety,  irrigation works in Madras, themselves in a condition of  reasonably adequate safety, be damaged, the Mysore  government shall pay to the Madras government  reasonable compensation for such damage.  

 As regards the three new reservoirs excepted above the  admissibility  of any compensation from Mysore to  Madras on account of loss accruing to Madras irrigation  works from diminution of supply of water caused by the  construction of the said works, will be referred to the  Government of India whose decision will be accepted as

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final and should such compensation decided to be  admissible, the decision of the Government of India as to  the amount thereof will be accepted, after submission to  them of the claims of Madras which would be preferred in  full detail within a period of five years after the  completion of said works.‖  

 45. As stated in Clause 2, there are two Schedules, namely,  

Schedule A and Schedule B which do not require any reference. We  

may note here that on 18.02.1924, another agreement was entered.   

The prefatory note to the said agreement contains reference to the  

1892 agreement, Clause 2 refers to Clause 3 of the 1892 agreement  

and certain disputes that had arisen between the two States and  

the reference to arbitration and the award in the year 1914,  

rectification of the award by the Government of India and the  

decision in appeal with the Secretary of State for India who had  

reopened the question. It is necessary to state what had been  

mentioned in the said reopening of the question:-  

―6. Whereas thereupon the Mysore Government and the  Madras Government with a view to an amicable  settlement of the dispute entered into negotiations with  each other; and  

 

7. Whereas as the result of such negotiations, certain  Rules of Regulation of the Krishnarajasagara reservoir  were framed and agreed to by the Chief Engineers of the  Mysore and Madras Governments on the 26th day of July

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of the year 1921, such Rules of Regulation forming  Annexure I to this agreement; and  

 

8. Whereas, thereafter, the technical officers of the two  Governments have met in conference and examined the  question of extension of irrigation in their respective  territories with a view to reaching an amicable  arrangement; and  

 9. Whereas as the result of such examination and  conference by the technical officers of the two  Governments, certain points with respect to such  extension were agreed to respectively by the Chief  Engineer for Irrigation, Madras, and the Special Officer,  Krishnarajasagara Works, at Bangalore, on the 14th day  of September 1923, such points forming Annexure III to  this agreement.‖    

46. In the said backdrop, the Mysore Government and the Madras  

Government entered into the 1924 agreement. We think it  

appropriate to reproduce the entire part of the said agreement as  

that is the fulcrum of the stand of the State of Tamil Nadu:-    

―(i) The Mysore Government shall be entitled .to  construct arid the Madras Government do hereby assent  under clause III of the 1892 agreement to the Mysore  Government constructing a dam and a reservoir across  and on the river Cauvery at Kannambadi, now known a6  the Krishnarajasagara, such dam and reservoir to be of a  storage capacity of not higher than 112 feet above the sill  of the under-sluices now in existence corresponding to  124 feet above bed of the river before construction of the  dam, and to be of the effective capacity of 44,827 million  cubic feet, measured from the 6ill of the irrigation sluices  constructed at 60 feet level above the bed of the river up

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to the maximum height of 124 feet above the bed of the  river; the level of the bed of the river before the  construction of the reservoir being taken as 12 feet below  the sill level of the existing under-sluices; and such dam  and reservoir to be in all respects as described in  schedule forming Annexure II to this agreement.    (ii) The Mysore Government on their part hereby agree  to regulate the discharge through and from the said  reservoir strictly in accordance with the Rules of  Regulation set forth in the Annexure I, which Rules of  Regulation shall be and form part of this agreement.    (iii) The Mysore Government hereby agree to furnish to  the Madras Government within two years from the date  of the present agreement dimensioned plans of anicuts  and sluices or open heads at the off-takes of all existing  irrigation channels having their source in the rivers  Cauvery, Lakshmanathirtha and Hemavathi, showing  thereon in a distinctive colour all alterations that have  been made subsequent to the year 1910, and further to  furnish maps similarly showing the location of the areas  irrigated by the said channels prior to or in the year  1910.    (iv) The Mysore Government on their part shall be at  liberty to carry out future extensions of irrigation in  Mysore under the Cauvery and its tributaries to an  extent now fixed at 110,000 acres. This extent of new  irrigation of 110,000 acres shall be in addition to and  irrespective of the extent of irrigation permissible under  the Rules of Regulation forming Annexure I to this  agreement, viz, 1,26,000 acres plus the extension  permissible under each of the existing channels to the  extent of one-third of the area actually irrigated under  such channel in or prior to 1910.    (v) The Madras Government on their part agree to limit  the new area of irrigation under their Cauvery Metur

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project to 301,000 acres, and the capacity of the new  reservoir at Metur, above the lowest irrigation sluice to  ninety-three thousand five hundred million cubic feet.    

Provided that, should scouring sluices but  constructed in the dam at a lower level than the  irrigation sluice, the dates on which such scouring  sluices are opened shall be communicated to the Mysore  Government.  

 (vi) The Mysore Government and the Madras  Government agree, with reference to the provisions of  clauses (iv) and (v) preceding, that each Government  shall arrange to supply the other as soon after the close  of each official or calendar year, as may be convenient,  with returns of the areas newly brought under irrigation,  and with the average monthly discharges at the main  canal heads, as soon after the close of each month as  may be convenient.    (vii) The Mysore Government on their part agree that  extensions of irrigation in Mysore as specified in clause  (iv) above shall be carried out only by means of reservoirs  constructed on the Cauvery and its tributaries mentioned  in Schedule A of the 1892 agreement. Such reservoirs  may be of an effective capacity of 45,000 million cubic  feet, in the aggregate and the impounding therein shall  be so regulated as not to make any material diminution  in supplies connoted by the gauges accepted in the Rules  of Regulation for the Krishnarajasagra forming Annexure  I to this agreement, it being understood that the rules for  working such reservoirs shall be so framed as to reduce  to within 5 percent any loss during any impounding  period, by the adoption of suitable proportion factors,  impounding formula or such other means as may be  settled at the time.    (viii) The Mysore Government further agree that full  particulars and details of such reservoir schemes, and of

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the impounding therein, shall be furnished to the Madras  Government to enable them to satisfy themselves that the  conditions in clause (vii) above will be fulfilled. Should  there arise any difference of opinion between the Madras  and Mysore Governments as to whether the said  conditions are fulfilled in regard to any such scheme or  schemes, both the Madras and Mysore Governments  agree that such difference shall be settled in the manner  provided in clause (xv) below.    (ix) The Mysore Government and the Madras Government  agree that the reserve storage for power generation  purposes now provided in the Kriahnaraja sagra may be  utilized by the Mysore Government according to their  convenience from any other reservoir hereafter to be  constructed, and the storage thus released from the  Krishnarajasagra  may be utilized for new irrigation  within the extent of 110,000 acres provided for in  clause(iv) above.     (x) Should the Mysore government so decide to release  the reserve storage for power generation purposes from  the Krishnarajasagra, the working tables for the new  reservoir from which the power water will then be utilized  shall be framed "after taking into consideration the  conditions specified in clause (vii) above and the altered  conditions of irrigation under the Krishnarajasagara.    (xi) The Mysore Government and the Madras Government  further agree that the limitations and arrangements  embodied in clauses (iv) to (viii) supra shall at the expiry  of fifty years from the date of the execution of these  presents, be open to reconsideration in the light of the  experience gained and of an examination of the  possibilities of the further extension of irrigation within  the territories of the respective Governments and to such  modifications and additions as may be mutually agreed  upon as the result of such reconsideration.   

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(xii)  The Madras Government and the Mysore  Government further agree that the limits of extension of  irrigation specified in clauses (iv) and (v) above shall not  preclude extensions of irrigation effected solely by  improvement of duty, without any increase of the  quantity of water used.    (xiii) Nothing herein agreed to or contained shall be  deemed to qualify or limit in any manner the operation of  the 1892 agreement in regard to matters other than  those to which this agreement relates or to affect the  rights of the Mysore Government to construct new  irrigation works on the tributaries o the Cauvery in  Mysore not included in Schedule A of the 1892  agreement    (xiv) The Madras Government shall be at liberty to  construct new irrigation works on the tributaries of the  Cauvery in Madras and, should the Madras Government  construct; on the Bhavani, Amaravati or Noyil rivers in  Madras, any new storage reservoir, the Mysore  Government shall be at liberty to construct, as an offset,  a storage reservoir in addition to those referred to in  clause (vii) of this agreement on one of the tributaries of  the Cauvery in Mysore, of a capacity not exceeding 60 per  cent of the new reservoir in Madras.    Provided that the impounding in such reservoirs shall not  diminish or affect in any way the supplies to which the  Madras Government and the Mysore Government  respectively are entitled under this agreement, or the  division of surplus water which, it is anticipated, will be  available for division on the termination of this  agreement as provided in clause (xi).    (xv) The Madras Government and the Mysore  Government hereby agree that, if at any time there  should arise any dispute between the Madras  Government and the Mysore Government touching the

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interpretation or operation or carrying out of this  agreement, such dispute shall be referred for settlement  to arbitration, or if the parties so agree shall be  submitted to the Government of India.‖  

47. As is noticeable, Clause 10(ii) provided that the Mysore  

Government had agreed to regulate the discharge through and from  

the concerned reservoir strictly in accordance with the Rules of  

Regulation set forth in Annexure I, which Rules of Regulation shall  

be and form part of that agreement.  The relevant part of Annexure I  

is reproduced below:-  

―7. The minimum flow of the Cauvery that must be  ensured at the upper anicut before any impounding is  made in the Krishnarajasagara, as connoted by the  readings of the Cauvery dam north gauge, shall be as  follows:-  Month      Readings of the          Cauvery Dam          North gauge.    June    ..   Six and a half feet.  July and August  ..  Seven and a half feet  September   ..   Seven feet.  October    ..   Six and a half feet.  November   ..   Six feet.  December   ..   Three and a half feet.  January    ..   Three feet.    8. The discharges connoted by the gauge readings set  forth in rule 7 shall, in the case of regulation during the  irrigation season (vide rule 9) of 1921, be deducted from  the average discharge curve derived from the joint

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gaugings of the Cauvery at the Cauvery dam made in the  four years ending 1920. The said discharges shall be  revised, if necessary, after completion of the joint  gaugings of 1921 and shall be used for the purpose of  regulation for the five years ending 1926. The said  discharges shall be finally revised and adopted for all  subsequent regulation, at the conclusion of the joint  gauging of the year 1926, on the basis of the joint  gaugings of the ten years ending 1926.    9. The south-west monsoon shall, for the purpose of  these rules be considered to extend from the 1st June to  the 30th September, both days inclusive, and the north- east monsoon from the1st October to the 31st January,  both days inclusive. The irrigation season shall be taken  to extend from the 1st June to the 31st January, both  days inclusive. All dates in this rule shall have reference  to the Upper Anicut.‖  

48. Annexure III of the agreement pertains to the extent of  

irrigation of Mysore and Madras. The relevant part is as follows:-  

―2.The extent of future extension of irrigation in Mysore  under the Cauvery and its tributaries mentioned in  Schedule A of the 1892 agreement shall be fixed at  110,000 acres, and Madras shall have their Cauvery- Mettur project as revised in 1921 with their new area of  irrigation fixed at 301,000 acres, …‖   

49. It is worthy to note here that another agreement was entered  

into between both the governments in the year 1929 to clarify  

Rules 7 and 8 of the Rules of Regulation pertaining to the Krishna  

Raja Sagara reservoir which is as follows:-  

"AGREEMENT

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 WHEREAS on the 18th February 1924 an agreement  between the Governments of Mysore and Madras was  signed and whereas by clause 10(2) of the said agreement  the Mysore Government agreed to regulate the discharge  through and from the Krishnarajasagara reservoir strictly  in accordance with the Rules of Regulation being  Annexure I to the said agreement;    and    WHEREAS disputes had arisen between the two  Governments in regard to the interpretation, operation  and carrying out of rules 7 and 8 of the said Rules and  Regulation;   And    WHEREAS both the Governments have submitted the  matters in dispute to the Arbitration of the Honourable  Mr. Justice Page with Messrs. Howley and Forbes as  assessors.     Now the two Governments have agreed in lieu of an award  in that behalf to adopt finally for all Regulation  subsequent to 1st July 1929, the following discharges for  the respective months in place of the averages referred to  in clause 8 of Annexure I:-  

June for 61/2 feet gauge     .. 29,800 cusecs.  July and August for 71/2 ft. gauge  .. 40,100     "  September for 7 feet gauge    .. 35,000      "  October for 6 1/2 feet gauge           .. 29,800     "  

November for 6 feet gauge     .. 25,033     "  December for 31/2 feet gauge           .. 8,913       "  January for 3 feet gauge                   .. 6,170       "    and in rule 10, defining the impounding formula, C will  denote the said above mentioned discharges.   

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THIS agreement is without prejudice to the other  questions outstanding between the parties in regard to  the clauses of the agreement other than clauses 7 and 8  of the Rules of Regulation.    17th June 1929.    (Signed) R. RANGA RAO)     (Signed) A.G. LEACH,  Officiating Chief Secretary     Secretary to the Government  to the Govt. of Mysore          Public Works and Labor  

                                   Department, Madras."  

50.  In 1934, a new reservoir at Mettur which was constructed by  

Madras became operational pursuant to Clause 10(v) of the  

agreement of 1924 and the Madras Government had agreed to limit  

―the new areas of irrigation under their Cauvery Mettur project  

(Project Report of 1921) to 301,000 acres‖ and the capacity of ―the  

new reservoir at Mettur‖ to 93.5 TMC.  In the said order, the State  

of Madras started planning of Nhawan reservoir under Clause 10  

(xiv) of the agreement of 1924 and, as a result, Mysore became  

entitled to construct a reservoir of 60% of the capacity planned by  

Madras and, accordingly, Mysore proposed Kabini Reservoir as an  

offset reservoir under Clause 10(xiv) of the said agreement.  In this  

regard, the finding of the Tribunal is as follows:-  

―Regarding Kabini project, the objection of Madras was  that the proposal of Mysore for transfer of half of power

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storage from Krishnarajasagar to Kabini was not  permissible although according to the State of Karnataka  it was permissible under Clasue 10(ix) of the agreement.  Apart from objection regarding the transfer of power  storage with regard to Kabini other objections had also  been raised. From the notes of discussion between the  then engineers of the two States on 11th and 12th March,  1940 (Tamil Nadu Vo,VII/Exh.445 page 148) it appears  that the two Chief Engineers of Madras and Mysroe  Governments finally agreed on the impounding in  reservoir to be built on Kabini during the critical months  from June to January, applying the Rule 10 of Rules of  Regulation of KRS (Annexure I to the Agreement). The  notes of discussions and agreements between the two  Chief Engineers were duly signed by them, and no further  action was taken by the State of Madras. Any agreement  between the two chief engineers was subject to the  approval of the State of Madras and the Government of  Mysore. Then by letter dated 21st May. 1945 the Secretary  to Maharaja of Mysore made a request to the Resident in  Mysore to obtain the concurrence of the Madras  Government. There was no reply from Madras  Government although the contents of the aforesaid letter  had been communicated to the Government of Madras.  No explanation was furnished as to why when the Chief  Engineers of two States had fixed and settled the  impounding formula in terms of the agreement of 1924.  for the reservoir on Kabini. the State of Madras was not  communicating its approval. Because of that the project  on Kabini as planned by Mysore in 1933 under clause  10(iv) of the agreement remained unimplemented."  

51.  In the year 1935, the British Parliament enacted the  

Government of India Act, 1935 (for short, ―the 1935 Act‖). In the  

year 1947, the Indian Independence Act, 1947 (for brevity, ―the  

1947 Act‖) came into force.  The Maharaja of Mysore had executed

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an agreement ―Instrument of Accession‖ initially only on two  

subjects, namely, defence and external affairs and communications  

which was accepted by the Governor General of India on  

16.08.1947. Thereafter, a White Paper was released on Indian  

States and ―Standstill Agreement‖ was entered into between the  

Dominion of India and the Maharaja of Mysore. A supplementary  

―Instrument of Accession‖ was executed on 01.06.1949 for all  

matters enumerated in List I and List II of the Seventh Schedule of  

the 1935 Act which was contained in the said supplementary  

agreement.  After coming into force of the Constitution of India, the  

1947 Act stood repealed by reason of the provisions contained in  

Article 395 of the Constitution of India and the erstwhile province of  

Madras under the 1935 Act became a Part A State of Madras with  

effect from 26.01.1950.  On 01.11.1956, the new State of Mysore  

was formed by the States Reorganisation Act, 1956 (for short, ‗the  

Reorganisation Act‖).   

52. In August 1972, the State of Tamil Nadu filed a suit OS No. 1  

of 1971 against the State of Mysore which was permitted to be  

withdrawn with liberty to file a fresh suit if necessary.  On  

29.05.1972, the Chief Ministers of Mysore, Tamil Nadu and Kerala

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discussed with the Union Minister for Irrigation and Deputy  

Minister. The relevant part of the discussion reads as follows:-   

"Note on discussions regarding Cauvery held at New  

Delhi on 29th May, 1972"  

"Discussions were held on 29th May, 1972 at New Delhi  between the Chief Ministers of Mysore, Tamil Nadu and  Kerala. Union Minister for Irrigation and Power and  Deputy Ministers were present. The Chief Ministers were  assisted by Ministers of respective States, those present  were as follows:  

I. Tamil Nadu:  

1. Thiru M. Karunanidhi, Chief Minister  2. Thiru S. Madhavan, Minister for Law  3. Thiru SJ. Sadiq Pasha, Minister for Public Works    

II. Mysore:  1. Shri D. Devaraj Urs, Chief Minister  2. Shri M.N. Nanja Gouda, Minister for State for Major  Irrigation  

III. Kerala:  1. Shri C. Achutha Menon, Chief Minister  2. Shri T.K. Divakaran, Minister for Public Works  

Union Minister for Irrigation and Power stated that river  problems are best settled through negotiations and this  was the course the Central Government was adopting for  the last few years in settling the differ rences on the use®  of waters of Cauvery. Earlier, it was aimed to arrive at an  interim agreement to be valid till 1974. when the earlier  agreement of 1924 would have come up for review after  50 years, as provided in the agreement. Now, as 1974 is  near, this attempt has been given up in favour of finding  an overall approach to solve the problem amicably

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amongst the several States. (Emphasis supplied) The  discussions amongst the Chief Ministers revealed general  

consensus on the three following points as in para 2:  

2.1 A serious attempt should be made to resolve by  negotiations the Cauvery dispute between eh States  

as eariy as possible.   

2.2. The Centre may appoint a Fact Finding  Committee consisting of Engineers, retired Judges  and if necessary, Agricultural Experts to collect all  the connected data pertaining to Cauvery waters, its  utilization and irrigation practices as well as  projects both existing, under construction and  proposed in the Cauvery basin. The Committee will  examine adequacy of the present supplies or  excessive use of water for irrigation purposes. The  Committee is only to collect the data and not make  any recommendations. The Committee may be  

asked to submit its report in three months time.  

2.3 Making use of the data, discussions will be held  between the Chief Ministers of the three States to  arrive at an agreed allocation of waters for the  respective States.  

3. Union Government will assist in arriving at such  a settlement in six months, and in the meanwhile,  no State will take any steps to make the solution of  the problem difficult either by impounding or by  utilizing water of Cauvery beyond what it is at  present.‖  

53. Pursuant to the above, the Cauvery Fact Finding Committee  

(CFFC) was set up by the Government of India. The terms of the  

reference to the CFFC were as follows:-

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"(i) To collect all the connected data pertaining to Cauvery  waters; its utilization at different points of time: irrigation  practices; as well as projects both existing, under  construction, and proposed in the Cauvery basin.  

(ii) To examine adequacy of the present supplies or  

excessive use of water for irrigation purposes.  

(iii) To collect data relevant to the use of water in  different States like the physical and other features;  cultivated areas; existing and proposed uses for domestic  and industrial water supply; hydro-electric power  generation, navigation, salinity control and other non-

irrigational purposes.  

(iv) Any other connected matters."  

54. The CFFC submitted a report on 15.12.1972. The relevant part  

of the report is reproduced below:-  

"As desired in the above resolution, we hereby submit our  report.  

The data was received from Kerala on 21st September,  1972 from Mysore on 19th October, 1972 and Tamil Nadu  on 24th October, 1972. Both Mysore and Tamil Nadu  supplemented their data during their discussions with the  Committee at New Delhi from 7th to 14th November, 1972.  Some clarifications and elucidations had been asked for  from the States during the discussions and again during  the visit of the Committee to Mysore and Tamil Nadu from  6th to 8th December, 1972. The replies from the State  Governments have not yet been received. The data  supplied by the three States runs into 20 volumes. In  addition, they have left with the Committee project reports  for their study which also run into 36 volumes. As this  voluminous data requires very careful examination and  scrutiny, the Committee "had asked for further extension

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of one month from 15th December, 1972 to 15th January,  1973. But the same has not been agreed to.  

In view of the above, the Committee had no alternative  but to submit its report on 15th December, 1972, though  it has not been possible to do full justice to this important  work.  

In accordance with the note on discussions regarding  Cauvery held at New Delhi on 29th May, 1972, between  the Union Minister for Irrigation and Power and the Chief  Ministers of Kerala, Mysore and Tamil Nadu {a copy of  which had been supplied to the Committee) "the  Committee is only to collect the data and  not make any  recommendations". As such, the Committee has refrained  from making any recommendations.‖  

55. On 14.08.1973, an additional report was submitted.  In  

October, 1973, the States of Mysore, Tamil Nadu and Kerala desired  

the Government of India to make a study on the scope of economy  

in the use of water and in pursuance of the same, the C.C. Patel  

Committee was constituted. The Committee made various  

recommendations and an estimate of irrigation water requirement  

in each State. On 12.08.1976, a Committee with Mr. E.C. Saldhana,  

Member, Central Water Commission, as Chairman was set up by  

the Central Government with the following terms of reference:-   

"(i) To assess the requirement of water of the existing  areas under irrigation as well as new areas which are  proposed to be brought under irrigation taking into  consideration the availability of water from the rainfall  within the respective command areas:

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(ii) To assess the availability of water for use in a  normal year taking into consideration integrated  operation of the reservoirs and the demand pattern of  releases:  

(iii) To recommend regulation of supplies in normal or  good years for protecting the existing ayacuts as well as  for the new areas, taking into consideration the savings  to be effected progressively in Tamil Nadu including  Karaikal region of Pondicherry and Karnataka.‖  

56. In March 1977, a draft report was submitted to the  

Government of India.  As is manifest, discussions, deliberations and  

negotiations went on between the two States and eventually, as  

stated earlier, on 06.07.1986, the State of Tamil Nadu lodged a  

complaint under the 1956 Act with the Government of India raising  

water dispute thereby requesting for adjudication of the water  

dispute by a tribunal.  

57.  We have already noted that the State of Karnataka had  

brought out an ordinance and how the Court has dealt with the  

same.  

58. Having noted the aforesaid and observing what the  

Constitution Bench had stated, we may proceed to deal with the  

contentions canvassed on behalf of both the States with regard to  

the validity of the agreements.

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H.  Doctrine of Paramountcy and its extinction on coming  into force of the Indian Independence Act, 1947  

59. Mr. Nariman, learned senior counsel, has attacked both the  

agreements on two counts, namely, (i) the Maharaja of Mysore was  

not in a position to enter into an agreement on equal terms with the  

Madras Government as the communications would show, and  

further, (ii) the manner in which the agreements were reached, the  

status conferred by the British Government and the Maharaja, the   

orders passed by the British Government from time to time and  

eventually, the order of the Secretary of State for India who upheld  

the appeal of the British Government of Madras against the Griffin  

Award clearly show the subservience of the Maharaja of Mysore to  

the paramount power of the British Crown. He has drawn our  

attention to a passage of the Griffin Award which is as under:-  

"The Secretary of State holds that the Government  of Madras were within their rights in appealing to him,  firstly because the procedure prescribed in rule IV of the  agreement of1892 was varied in the Arbitration  Proceedings and, secondly, because, while the Agreement  of1892 was and is valid as between the Governments of  Madras and Mysore, this does not relieve him (i.e. the  Secretary of State) of his genera! responsibility for  intervening in any matter in which it seems to him that  the public interest is threatened with injury, even if the  possible injury would be consequent on action taken

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under an award given, or purporting to be given, under  rule IV".  

60. Relying on the same, it is propounded by Mr. Nariman that a  

binding arbitration award between the Indian State and a Province  

in British Government was not regarded as binding by the Secretary  

of State and he could refuse to recognize it and from the said, the  

Doctrine of Paramountcy is manifest and that alone should be  

treated as sufficient to treat the agreements as absolutely unfair,  

arbitrary and unreasonable.  Learned senior counsel would contend  

that when in such a situation the agreement had been entered into,  

the same cannot be regarded as valid in law after India got  

independence and should be declared as null and void under the  

Constitution of India that came into force on 26th January, 1950.  It  

is urged by him that having regard to the regime of paramountcy  

and taking note of the fact that the Crown had the paramount  

power and exercised the same in favour of the Madras Government  

ignoring whatever objection could be raised then by the Dewan of  

Maharaja of Mysore, the agreement cannot be constituted as valid  

and acceptable in law.  The argument on the factual score by Mr.  

Nariman has been seriously contested by Mr. Rakesh Dwivedi,  

learned senior counsel appearing for the State of Tamil Nadu,

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urging that the agreements were arrived at after several  

correspondences and proper consideration. He has also drawn our  

attention to the letter dated 12.02.1924 from the Dewan of Mysore  

to the Secretary of the Maharaja. The said letter reads thus:-  

―I have discussed the whole matter this morning with my  colleagues and they entirely approve of my  recommendations. I feel relieved and proud that after  four years of strenuous fight. I am able to put up for His  Highness approval a settlement which is eminently  satisfactory and favourable to Mysore and its future  

generations.  

PS. - Sir Visvesvaraya has gone away to Bhadravathi, so,  I cannot speak to him. I have already discussed all the  main points with him a week ago and he was fully  satisfied that we got all we could and had a very  satisfactory settlement."  

61. Referring to the language employed in the said letter, it is  

submitted by Mr. Nariman that the same does not really indicate  

anything that can be considered as consent or acceptance but  

instead reflects some kind of resignation.  He has emphasized on  

the words ―that we got all we could‖ to highlight that it is reflective  

of compulsive surrender having no choice and accepting whatsoever  

has been given in the absence of any option.  He would further  

submit that the agreement of 1924 only permitted the State of  

Mysore to undertake irrigation in the Princely State on certain

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terms.  It was because of the unilateral imposition by the  

paramount power.  

62. In this context, it is also necessary to refer to what Mr.  

Dwivedi, learned senior counsel, has drawn our attention to from  

the letter of the Dewan of Mysore to the Maharaja of Mysore.  The  

said part reads as follows:-  

―I am sending tonight with this letter a complete  comprehensive agreement embracing all the points of  dispute, bringing forward every clause as agreed to up to  date during the past 4years of discussion and signed by  the technical officers of the two Governments.  It will be  seen that we have given a concession to Madras in regard  to the Bhavani Project and have got, in return, a quid pro  quo that we shall be entitled to have an additional  reservoir.  The other points are already settled.  The  whole case has caused me, during the past few days,  considerable anxiety and I honestly now think that with  the concession now obtained and with the finality in  regard to the krishnarajasagara, taken together with the  possibility of an additional development of 110,000 acres  during the next 50 years, Mysore interests are fully  safeguarded even though Mysore now agrees to the Metur  project slightly enlarged.  We have made a very still fight  over this question, and as Madras have climbed their  other contentions and are prepared to sign the agreement  as now submitted, we may, with good grace, yield on this  one point so far as only the additional 1,500 m.c. ft. extra  storage is concerned, which is negligible and conclude  the dispute once for all.  

  I have discussed the whole matter this morning with  my colleagues and they entirely approve of my

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recommendations.  I feel relieved and proud that after  four years of strenuous fight, I am able to put up for His  Highness approval a settlement which is eminently  satisfactory and favourable to Mysore and its future  generations.‖  

63. Elaborating the stand of paramountcy, this Court has been  

apprised of certain factual aspects.  In 1929, certain disputes arose  

between the two Governments pertaining to the interpretation,  

operation and carrying out of Rules 7 and 8 of the Rules of  

Regulation of 1921 (Annexure to the Agreement of 1924) and under  

Clause 10(ii), the matters in dispute were referred to arbitration of  

Mr. Justice Page of the Calcutta High Court and during the  

arbitration, both the Governments agreed to adopt the same as final  

as regards the discharges at the upper Anicut and certain further  

aspects.  In 1934, a new reservoir at Mettur which was constructed  

by Madras became operational pursuant to clause 10(v) of the  

Agreement of 1924 and the Madras Government agreed to limit the  

new areas of irrigation under the Cauvery-Mettur project to 301,000  

acres and the capacity of the new reservoir at Mettur to 93.5 TMC.   

It is the stand of the State of Karnataka that when the Mettur Dam  

became operational with effect from 1934, the natural flow for  

upper Anicut which was at a considerable distance below Mettur

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could not be maintained at the stipulated six and a half to seven  

and a half ft. equal to 29800 cusecs to 40100 cusecs since the  

water of the upstream flowed into Mettur reservoir.  Despite the  

same, as urged by Mr. Nariman, clause 10(ii) of the Agreement of  

1924 required strict observance of Rule 7 of the Rules of Regulation  

and was not altered and it was so because of the paramount power  

exercised by the authority and it did not desire the anomaly to be  

corrected.  Various other aspects have been stressed upon to  

highlight that the State of Mysore had no authority to bargain and  

it was compelled to succumb to the paramount exercise of power.   

We are at present not referring to the specific reservoirs as that  

shall be dealt with at a later stage.    

64. The legal validity of the agreement of the year 1924 was  

challenged before the Tribunal and it has addressed whether the  

agreement has become constitutionally invalid.  Adverting to the  

same, the Tribunal has opined that when the 1924 Agreement was  

entered into, the Government of India Act, 1919 was in force.   

Section 30 of the said Act enabled the Governor General in Council  

to make any contract for the purpose of that Act.  The Government

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of India Act, 1919 was repealed by the Government of India Act,  

1935.  

65. On behalf of the State of Tamil Nadu, reliance was placed on  

Section 177 of the Government of India Act, 1935 to sustain the  

contention that the 1924 Agreement continued to be in force and  

when British paramountcy lapsed on 15th August, 1947, the  

agreement did not lapse automatically due to the proviso to Section  

7(1) of the Indian Independence Act, 1947.  It is further put forth  

that the agreement continued to be in force in the absence of  

denouncement of those agreements by either party or by  

superseding them by any fresh agreement.  That apart, the State of  

Mysore which was a Princely State at the time of its accession to the  

Dominion of India executed both the ―Instruments of Accession‖  

and the ―Standstill Agreement‖ under which the agreement  

continued between the State of Madras and the then State of  

Mysore.  After the Constitution came into force, the liabilities and  

obligations arising out of the said agreements under Articles 294-B  

and 295(2) devolved on the two States and after the reorganization  

of the States in November, 1956, the terms of the agreement made  

earlier are to be treated as binding on the successor State or States

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under Section 87(1) of the Reorganisation Act. The contention of the  

State of Karnataka before the Tribunal was that the Agreement of  

1924 is not covered by Section 177 of the Government of India Act,  

1935 and as such, it lapsed after coming into force of the said Act.  

66. The Tribunal referred to Section 177(1), noted the submissions  

of the learned counsel for the parties and held thus:-  

―7. On a plain reading of Section 177(1) of the  Government of India Act 1935 aforesaid it is apparent  that it conceived contract to be made by or on behalf of  the Secretary of State in Council. On the facts furnished  on behalf of the State of Karnataka itself it appears that  the Agreement which had been initially signed by the  Dewan of Mysore and Secretary to the Government of 88  Madras on 18th February 1924 was also signed by the  Maharaja of Mysore as well as the Governor of Madras. It  was also approved by the Secretary of State and that  approval was communicated by telegram dated 18th  June 1924. Thereafter, the Government of India approved  and confirmed the said agreement on 11th July 1924  which is apparent from the note made on the photo copy  of the agreement by the Political Secretary. In this  background, it shall be deemed that the said agreement  had been executed on behalf of the Secretary of State in  Council. Merely because in the agreement it had not been  mentioned that it was being executed on behalf of the  Secretary of State in Council, shall not make the  agreement invalid. It is well known that in such matters  a presumption has to be raised that official acts have  been performed by complying with the requirement of the  law. According to us after lapse of about 80 years from  the date of the execution of the agreement it shall be a  futile attempt to examine the legal validity of the  execution of the agreement of the year 1924 which had

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been acted upon by the then State of Madras and the  Government of Mysore in respect of sharing of the water  of Cauvery and its tributaries including in respect of  construction of reservoirs over Cauvery and its  tributaries by two States. Pursuant to that agreement  KRS was constructed and became functional in the year  1931 within Mysore and Mettur was constructed by  Madras which became functional in the year 1934. The  reservoirs on tributaries within the States of  Mysore/Karnataka and Madras/Tamil Nadu have also  been constructed and they are functioning. No dispute  was raised at any stage on behalf of the Mysore or  Karnataka till 89 the expiry of the period of 50 years in  1974, in respect of any defect in the execution of the  agreement of the year 1924 or that it was not binding on  Mysore/Karnataka.‖  

67. The submission was structured on the basis of the 1947 Act  

and the judgment rendered in Dr. Babu Ram Saksena v. State3.   

The Tribunal analyzed the said decision and the views of Patanjali  

Sastri, J. who delivered his opinion on behalf of M.H. Kania, CJ and  

himself and the opinion rendered by B.K. Mukherjee, J.  Be it  

noted, Fazal Ali, J. agreed with both Sastri, J and Mukherjee, J.  

and opined that the appeal deserved to be dismissed.  Mahajan, J.  

concurred with Mukherjee, J.  After noting the facts, the Tribunal  

observed thus:-  

―16. It appears that three remaining Hon‘ble Judges Fazl  Ali, J, Mahajan,J, and Das,J, agreed with the opinion  

                                                           3 1950 SCR 573 : AIR 1950 SC 155

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aforesaid expressed by Hon‘ble Justice Mukherjea. The  majority of the Judges in the aforesaid Supreme Court  case dismissed the appeal taking special facts and  circumstances of that particular case, i.e. the merger of  the Tonk State along with several other States and giving  rise to the United State of Rajasthan. In the process of  merger Tonk had lost its identity and had relinquished its  life. As such a treaty previously concluded had lapsed.‖  

68. After so stating, the Tribunal distinguished the said decision  

as the factual matrix is different.  It has been held by the Tribunal  

that the State of Mysore was a ruling State and after accession, it  

became a Group B State under the Constitution of India and at no  

stage, there has been any merger of the said State with any other  

State by which the Ruling State of Mysore stood extinguished or  

relinquished as in the case of State of Tonk which was the subject  

matter of controversy in Dr. Babu Ram Saksena (supra).   

Thereafter, the Tribunal has held:-  

―According to us the aforesaid judgment of the Supreme  Court is of no help to the State of Karnataka. No other  decision or provision was brought to our notice in  support of the contention that the Agreement of the year  1924 ceased to exist after the Indian Independence Act  1947 came into force. The result will be that it shall be  deemed that the said Agreement of 1924 survived and  continued even after the coming into force of the Indian  Independence Act 1947 and the Constitution of India.‖   

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69. Mr. Nariman, learned senior counsel, has assiduously and  

astutely canvassed about the doctrine of paramountcy.  For the  

said purpose, he has drawn our attention to Section 7 of the 1947  

Act.  The said provision reads as follows:-  

―7.(1) As from the appointed day(a) His Majesty's  Government in the United Kingdom have no  responsibility as respects the government of any of the  territories which, immediately before that day, were  included in British India;   

 

(b) the suzerainty of His Majesty over the Indian States  lapses, and with it, all treaties and agreements in force at  the date of the passing of this Act between His Majesty  and the rulers of Indian States, all functions exercisable  by His Majesty at that date with respect to Indian States,  all obligations of His Majesty existing at that date  towards Indian States or the rulers thereof, and all  powers, rights, authority or jurisdiction exercisable by  His Majesty at that date in or in relation to Indian States  by treaty, grant, usage, sufferance or otherwise; and   

 

(c) there lapse also any treaties or agreements in force at  the date of the passing of this Act between His Majesty  and any persons having authority in the tribal areas, any  obligations of His Majesty existing at that date to any  such persons or with respect to the tribal areas, and all  powers, rights, authority or jurisdiction exercisable at  that date by His Majesty in or in relation to the tribal  areas by treaty, grant, usage, sufferance or otherwise:  

 

Provided that, notwithstanding anything in paragraph (b)  or paragraph (c) of this subsection, effect shall, as nearly  as may be, continue to be given to the provisions of any

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such agreement as is therein referred to which relate to  customs, transit and communications, -posts and  telegraphs, or other like matters, until the provisions in  question are denounced by the Ruler of the Indian State  or person having authority in the tribal areas on the one  hand, or by the Dominion or Province or other part  thereof concerned on the other hand, or are superseded  by subsequent agreements.   

 (2) The assent of the Parliament of the United Kingdom is  hereby given to the omission from the Royal Style and  Titles of the words " Indiae Imperator " and the words "  Emperor of India " and to the issue by His Majesty for  that purpose of His Royal Proclamation under the Great  Seal of the Realm.‖  

70. According to Mr. Nariman, after coming into force of the said  

provision, the agreements lapsed and the finding of the Tribunal  

that they continued because of the ―Standstill Agreement‖ or the  

constitutional provisions as enshrined under Article 295(2) is  

absolutely erroneous. In this context, we may refer to the ―Standstill  

Agreement‖ which is a part of the White Paper on Indian State  

issued by the Government of India, Ministry of States.  In part 4 of  

the said White Paper, accession of the States to the Dominion of  

India is mentioned and it refers to the lapse of paramountcy.   

Paragraph 82 deals with ―Standstill Agreement‖.  It reads as  

follows:-

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―Standstill Agreements, the acceptance of which was  made by the Government of India conditional on  accession by the States concerned were also entered into  between the Dominion Government and the acceding  States.  The Standstill Agreements (Appendix IX),  provided for the continuance for the time being of all  subsisting agreements and administrative arrangements  in matters of common concern between the States and  the Dominion of India or any part thereof.‖  

71. It is submitted by Mr. Nariman that the ―Standstill Agreement‖  

dated 09.08.1947 which was actually executed by the Maharaja of  

Mysore stipulated that nothing in the said agreement could include  

the exercise of any paramountcy function and, therefore, the  

―Standstill Agreement‖ will not cover the State of Mysore.  Learned  

senior counsel would contend that with the coming into force of the  

Constitution of India on 26.01.1950, the 1947 Act passed by the  

Parliament stood repealed by reason of the provision of Article 395  

of the Constitution and Mysore became a Part B State under the  

Constitution and the erstwhile province of Madras became a Part A  

State. According to him, even if the ―Standstill Agreement‖ executed  

between the Maharaja of Mysore and the Dominion of India was  

operative and existing, it came to an end. According to him, the  

1947 Act did not survive beyond the final accession of the State of  

Mysore to the Union of India and ―Standstill Agreement‖ entered

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into by the Government of India with various Indian States  

including the provincial State of Mysore were purely temporary  

arrangements designed to maintain status quo in respect of  

administrative matters. He has seriously criticized the finding of the  

Tribunal and contended that the Tribunal has failed to take proper  

note of the decision in Dr. Babu Ram Saksena (supra). He has  

commended us to certain passages to bolster the argument:-   

―The Attorney-General appearing for the Government  advanced three lines of argument in answer to that  contention. In the first place, the standstill agreement  entered into with the various Indian States were purely  temporary arrangements designed to maintain the  status quo ante in respect of certain administrative  matters of common concern pending the accession of  those States to the Dominion of India, and they were  superseded by the Instruments of Accession executed  by the Rulers of those States. Tonk having acceded to  the Dominion on the 16th August, 1947, the standstill  agreement relied on by the appellant must be taken to  

have lapsed as from that date. …..  

As we are clearly of opinion that the appellant's  contention must fail on this last ground, we consider it  unnecessary to pronounce on the other points raised by  the Attorney General especially as the issues involved  are not purely legal but partake also of a political  character, and we have not had the views of the  Governments concerned on those points.‖  

72. We have already referred to the decision in Dr. Babu Ram  

Saksena (supra) and how the Tribunal has dealt with the same.

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The emphasis of Mr. Nariman is on the words ―partake also of a  

political character‖. Stress is laid that when an agreement partakes  

a political character, the doctrine of paramountcy clause melts into  

insignificance by virtue of Section 7 of the 1947 Act. In this regard,  

he has placed reliance on Hemchand Devchand v. Azam Sakarlal  

Chhotamlal4.  The effort of the learned senior counsel is to draw a  

distinction between categories of political cases and those which fall  

in the other categories.  The relied upon passages from the said  

judgment read as follows:-  

―The real question is whether in cases like those now  before their Lordships the action of the tribunals in  Kathiawar, and of the Governor in Council on appeal from  those tribunals, is properly to be regarded as judicial or  as political. And at this point a distinction arises between  the two cases under appeal; because the first of them has  

been disposed of as a civil, the second as a political, case.  

 x  x  x  x  x  

The further appeal to the Secretary of State in Council is a  fact of clearer import. In Lord Salisbury's Despatch of the  March 23, 1876, the practice of such appeals is dealt with  as a thing at that date already fully established, and it  continues to the present day in civil as well as in political  cases. This system of appeal to the Secretary of State  affords strong evidence that the intention of Government  is and always has been that the jurisdiction exercised in  connection with Kathiawar should be political and not  

judicial in its character.‖  

                                                           4 (1905) 33 IA 1 : (1906) ILR 33 Cal 219

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And again:-  

―Such cases can only be justly disposed of on principle of  equity in the fullest sense of the term, and not in the  circumscribed sense, which is familiar to the practice of  the High Courts; and sometimes consideration must be  given to the political expediency which underlies the  relation in which the Government stands to the protected  States.''     

73. Placing reliance on the said passages, it is urged by him that  

when the Secretary of State was dealing with such a case, the said  

case was regarded as ―political‖ and not ―judicial‖ in character as  

was later authoritatively stated in the letter of the Viceroy of India –  

that is, Lord Reading‘s letter dated 27.03.1926 to the Nizam of  

Hyderabad – which set out the doctrine of paramountcy in classical  

terms.  Elaborating further, it was contended by him that the  

appeal preferred by the Government of Madras against the Griffin  

Award which was in favour of the Maharaja of Mysore was allowed  

and the Maharaja of Mysore was described as the head of a ―Vassal  

State‖, and hence, he was not in a position to negotiate or bargain  

with the paramount power on equal terms and was compelled to go  

for amicable settlement on compulsion.  In this regard, inspiration  

has been drawn from the decision in H.H. Maharajadhiraja  

Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and others

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v. Union of India and another5.  Shah, J., speaking for the  

majority, observed:-    

―100. In the era before 1947 the term ―State‖ applied to  a political community occupying a territory in India of  defined boundaries and subject to a single Ruler who  enjoyed or exercised, as belonging to him, any of the  functions and attributes of internal sovereignty duly  recognised by the British Crown. There were in India  more than 560 States: forty out of those States had  treaty relations with the Paramount Power: a larger  number of States had some form of engagements or  Sanads, and the remaining enjoyed in one or the other  form recognition of their status by the British Crown.  The treaties, engagements and Sanads covered a wide  field, and the rights and obligations of the States arising  out of those agreements varied from State to State. The  rights that the British Crown as the Paramount Power  exercised in relation to the States covered authority in  matters external as well as internal. The States had no  international personality, the Paramount Power had  exclusive authority to make peace or war, or to  negotiate or communicate with foreign States. The  Paramount Power had the right of intervention in  internal affairs which could be exercised for the benefit  of the head of the State, of India as a whole, or for giving  effect to international commitments.‖  

 74. Further, the Court referred to the Cabinet Mission which  

announced its Plan on May 16, 1946 for the entry of the States into  

the proposed Union of India and simultaneously declared that the  

paramountcy of the British Crown could neither be retained nor  

                                                           5 (1971) 1 SCC 85

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transferred to the new Government.  The Court also took note of the  

Indian (Provisional Constitution) Order, 1947 which extensively  

amended Sections 5 and 6 of the Government of India Act, 1935.   

The Court dwelt upon the inheritance of the paramountcy power of  

the British Crown and, in that context, held:-    

―131. We are unable to agree with the Attorney-General  that the ―old unidentified concept of paramountcy of the  British Crown‖ was inherited by the Union, by reason of  the instruments of accession and merger agreements and  that ―recognition of Rulership was a ‗gift of the President‘,  and not a matter of legal right, existing as it did in the  area of paramountcy and remaining with the Government  of India‖. The British Crown did not acquire paramountcy  rights by any express grant, cession or transfer, it  exercised paramountcy because it was the dominant  power. Paramountcy had no legal origin, and no fixed  concept: its dimensions depended upon what in a given  situation the representatives of the British Crown  thought expedient. Paramountcy meant those powers  which the British authorities by the might of arms, and  in disregard of the sovereignty and authority of the States  chose to exercise. But that paramountcy lapsed with the  Indian Independence Act, 1947: even its shadows  disappeared with the integration of the States with the  Indian Union. After the withdrawal of the British power  and extinction of paramountcy of the British power the  Dominion Government of India did not and could not  exercise any paramountcy over the States. In clause 3 of  the Standstill Agreement it was expressly recited that....  Nothing in the agreement includes the exercise of any  paramountcy functions‖. The relations between the  States and the Dominion Government were strictly  governed by the instruments executed from time to time.  Subject to the power conferred in respect of certain

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matters of common interest to legislate and exercise  executive authority the Princes had sovereignty within  their territories. With the advent of the Constitution the  States ceased to exist, and the Princes and Chiefs who  were recognized as Rulers were left with no sovereign  authority in them. It is difficult to conceive of the  government of a democratic Republic exercising against  its citizens ―paramountcy‖ claimed to be inherited from  an imperial power. The power and authority which the  Union may exercise against its citizens and even aliens  spring from and are strictly circumscribed by the  Constitution.    132. The fundamentals on which paramountcy rested i.e.  the compulsion of geography and the essentials for  ensuring security and special responsibility of the  Government of India to protect all territories in India  survived the enactment of the Indian Independence Act,  for between August 15, 1947 and the date of integration  of the various States, the Government of India was the  only fully sovereign authority. But paramountcy with its  brazen-faced autocracy no longer survived the enactment  of the Constitution. Under our Constitution an action not  authorised by law against the citizens of the Union  cannot be supported under the shelter of paramountcy.  The functions of the President of India stem from the  Constitution — not from a ―concept of the British Crown‖  identified or unidentified. What the Constitution does not  authorise, the President cannot grant. Rulership is  therefore not a privilege which the President may in the  exercise of his discretion bestow or withhold.‖  

   75. Relying upon the said authority, it is canvassed by                            

Mr. Nariman that the agreements of 1892 and 1924 were relatable  

to paramountcy functions and, therefore, the ―Standstill Agreement‖  

of Mysore could not be held to have continued the said two

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agreements since they are relatable to paramountcy and, in fact,  

after the lapse of suzerainty of the British Crown under the 1947  

Act, both the agreements are bound to be treated to have been  

lapsed. In this context, he has drawn inspiration from certain  

passages of the book ―Integration of Indian States‖ by Mr. V.P.  

Menon who has commented on the provisions of Section 7 of the  

1947 Act.  The comments of the learned author in this regard are as  

follows:-  

"The next question was whether, even if paramountcy  lapsed, all agreements of a commercial, economic or  financial character between the States on die one hand  and the British Government, the Secretary of State, and  the Governor-General on the other, would cease to be  legally effective. I pointed out that there were several  important agreements which had been entered into for  the common benefit of the States and British India  where paramountcy did not enter, such as the  agreement of 1920 with Bahawaipur and Bikaner  regarding the Sutlej Valley canals project, and the  Government of India agreement on salt with Jaipur and  Jodhpur. The mutual rights and obligations- of parties  under such agreements could not be regarded as lapsing  on the withdrawal of paramountcy. On the  commencement of the Government of India Act of 1935,  the Crown's rights and obligations had become for all  practical and constitutional purposes the rights and  obligations of the Central Government and were secured  as such by the provisions of the Act. The financial  commitments of the Central Government under  agreements of this type were considerable. I therefore  took the view that it would be best that these

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agreements should continue to be binding both on the  States and on the successor Governments.  

Sir Conrad Corfield. on behalf of the Political  Department contested my point of view. He referred to a  meeting between himself and Lord Pethick-Lawrence at  which it had been agreed that the abolition of the Crown  Representative would automatically cause paramountcy  to become void, together with any subsisting agreements  between the Crown and the States. Sir Conrad did not  agree with the view that paramountcy did not enter into  the Sutiej Valley Canals Agreement of 1920 and the  Jaipur and Jodhpur Salt Agreements. The first of these  had been entered into on behalf of Bahawaipur by a  Council of Regency controlled by the paramount power  while the ruler was a minor. The Jaipur and Jodhpur  Salt Agreements wee typical of those which States had  been required to conclude with the paramount power  during the latter half of the nineteenth century in the  interests of the central revenues. The Political Adviser  was unable to entertain the view that the agreements  should be continued after the lapse of paramountcy.  

Lord Mountbatten did not take sides in this conflict of  opinion. He merely forwarded both my view as well as  that of the Political Department to the India Office.  

It was about this time that the Secretary of State  intimated that the Indian Independence Bill should  include a specific denunciation of the treaties with the  Indian States. Normally speaking, treaties were  terminated by ‗acts of State', but there was no reason  why, on an occasion of this importance and in the  peculiar circumstances, this should not be done by an  Act of Parliament which would emphasize the legal  position whereby paramountcy did not pass to the new  Indian Dominions. This was considered by the Viceroy's  advisers; they deprecated any such formal denunciation  of treaties.

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Meanwhile the Secretary of State's opinion in regard to  the continuance of existing agreements was received. He  stated that His Majesty's Government fully appreciated  the importance attached by the Reforms Commissioner  to the avoidance if possible of complete severance of  relations with the States and the necessity for  negotiations between parties over the whole field. But he  considered that the views of the Political Department  must prevail, as they were in line with His Majesty's  Government's policy as stated in the Cabinet Mission  memorandum. It was impossible to distinguish between  agreements freely negotiated and those imposed. In any  case, all had been made under the authority of the  Crown and not of the executive Governments - central or  provincial - of British India...."  

   [Emphasis supplied]  

76. He has also drawn strength from the other Water Disputes  

Tribunals, namely, Narmada, Krishna and Godavari.  His principal  

emphasis is on the fact that the agreements entered into between  

the two States were for political considerations as the State of  

Mysore was a princely State under the British suzerainty and the  

State of Madras was a province of British India and the disputes  

were never settled by application of international law but through  

authoritative decision of the British Crown. In essence, the  

submission is that after coming into force of the 1947 Act, the  

agreements became extinct by operation of law.   

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77. In this regard, we may usefully refer to the authority in State  

of Tamil Nadu v. State of Kerala and another6 which was  

dealing with the water level of Mullaperiyar Dam after it was solved  

by this Court on 27.02.2006 in Mullaperiyar Environmental  

Protection Forum v. Union of India and others7. The controversy  

had arisen because the Kerala State legislature had enacted the law  

immediately thereafter fixing and limiting full reservoir level to 136  

ft. The Constitution Bench referred to the Periyar Lake Lease  

Agreement dated 29.10.1886 which allowed the masonry dam to  

come up across Periyar reservoir.   The agreement stipulated many  

aspects. In 1979, the Government of Kerala had entered into a  

correspondence with the Tamil Nadu Government to take immediate  

steps to strengthen the dam keeping in view the safety of the  

Mullaperiyar Dam. Simultaneously, the Kerala Government also  

requested the Central Government to depute a team from the  

Central Water Commission (CWC) to inspect the Dam and suggest  

strengthening measures.   In pursuance of the request from the  

Kerala Government, the CWC held meeting and three level  

measures, (i) emergency, (ii) medium, and (iii) long term were  

                                                           6 (2014) 12 SCC 696  7 (2006) 3 SCC 643

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suggested to strengthen the Dam. In the meantime, it was  

recommended that the water level in the reservoir be kept at 136 ft.    

In the second meeting held on 29.04.1980, it was opined that after  

the completion of emergency and medium-term strengthening  

measures, the water level in the reservoir can be restored up to 145  

ft.  In the year 1998, the State of Tamil Nadu had a grievance that  

despite the measures being suggested by CWC, no consensus could  

be reached between the State Governments, that is, Tamil Nadu  

and Kerala, to raise the water level in the Mullaperiyar Reservoir  

beyond 136 ft.  Various writ petitions were filed in both the High  

Courts and, eventually, the matters stood transferred to this Court  

and some directions were issued in Mullaperiyar Environmental  

Protection Forum (supra). The Expert Committee, after discussion,  

opined that the water level in the Mullaperiyar Reservoir could be  

raised to 142 ft as that would not endanger the safety of the main  

Dam, including spillway, Baby Dam and earthen bund.  The  

Constitution Bench referred to the first litigation before this Court,  

the Kerala Irrigation and Water Conservation Act, 2003, the Kerala  

Irrigation and Water Conservation (Amendment) Act, 2006, the  

second litigation before this Court, grounds of challenge to the 2006

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(Amendment) Act and the defence put forth by the State of Kerala.    

Certain issues were framed by the Court out of which four  

questions being relevant for the present purpose are reproduced  

below:-   

―4. (b) Whether the pleas relating to validity and binding  nature of the deed dated 29-10-1886, the nature of  Periyar River, structural safety of the Mullaperiyar Dam,  etc. raised by the first defendant in its defence, are  finally decided by the judgment of this Court dated 27-2-

2006 in Mullaperiyar Environmental Protection Forum v.  Union of India and consequently first defendant is barred  from raising or reagitating those issues and pleas in this  suit, by the principle of res judicata and constructive res  judicata?  

 

5. Whether the suit based on a legal right claimed under  the lease deed executed between the Government of the  Maharaja of Travancore and the Secretary of State for  India on 29-10-1886, is barred by the proviso to Article  131 of the Constitution of India?  

 

6. Whether the first defendant is estopped from raising  the plea that the deed dated 29-10-1886 has lapsed, in  view of subsequent conduct of the first defendant and  execution of the supplemental agreements dated               29-5-1970 ratifying the various provisions of the original  deed dated 29-10-1886?  

 7. Whether the lease deed executed between the  Government of the Maharaja of Travancore and  Secretary of State for India on 29-10-1886 is valid,  binding on first defendant and enforceable by plaintiff  against the first defendant?‖  

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78. Be it noted, initially, the matter was heard by a three-Judge  

Bench and later on, it was referred to the Constitution Bench as  

some of the issues framed in the suit involved decision on certain  

substantial questions of law concerning interpretation of the  

Constitution. Dealing with the issues on the 1886 lease agreement,  

the Court posed the question – whether it is an existing contract  

under the 1935 Act.  Reference was made to Section 177 of the  

1935 Act and interpreting the same, the Court held:-    

―41. Section 177 of the 1935 Act, omitting the  unnecessary part reads,  

 

―177. (1) … any contract made before the  commencement of Part III of this Act by, or on  behalf of, the Secretary of State-in-Council shall, as  from that date—  

 

(a) if it was made for the purposes which will after  the commencement of Part III of this Act be  purposes of the Government of a Province, have  effect as if it had been made on behalf of that  Province….‖  

 

By virtue of this provision, the existing contracts of the  Secretary of State-in-Council would have the effect as if  they had been made on behalf of the Province. When we  see the 1886 Lease Agreement in the light of Section  177 of the 1935 Act, there remains no doubt at all that  lease that was executed by the Secretary of State-in- Council for the Presidency of Madras (Madras Province)

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had the effect as if it had been made on behalf of the  Presidency of Madras or for that matter Madras  Province. To put it differently, by legal fiction created  

under Section 177(1)(a), the Presidency of Madras  (Madras Province) became lessee under the 1886 Lease  Agreement. We have, therefore, no hesitation in  accepting the submission of Mr Vinod Bobde, learned  Senior Counsel for Tamil Nadu that by virtue of Section  177 of the 1935 Act, as from the commencement of the  1935 Act, the Government of the Province of Madras is  deemed to be substituted as the lessee in the 1886  Lease Agreement.‖  

  

79. Thereafter, the Court addressed the issue of the effect and  

impact of the events between 18.07.1947 and 26.01.1950 which  

relate to the 1947 Act and the Constitution of India. The Court  

referred to the ―Standstill Agreement‖ which was entered into  

between the State of Travancore and the Dominion of India,  the  

omission of Section 177 of the 1935 Act and the merger of two  

States – Travancore and Cochin. Analysing further, the Court  

referred to Section 7 of the 1947 Act and observed thus:-   

―45. As noted above, the 1947 Act came into effect from  15-8-1947. Section 7 deals with the consequences of  

the setting up of the new dominions. Clause (b) of sub- section (1) of Section 7 declares that suzerainty of His  Majesty over the Indian States lapses. On lapsing of  suzerainty, it provides for lapsing of all treaties and  agreements in force between His Majesty and the Rulers  of Indian States from that date. The proviso appended  to sub-section (1), however, continues such agreements  unless the provisions in such agreement are denounced

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by the Ruler of the Indian State or are superseded by a  subsequent agreement.  

 

46. It is the contention of Mr Harish N. Salve that  firstly, 1886 Lease Agreement lapsed by virtue of main  

provision of Section 7(1)(b) of the 1947 Act as it  comprehends all treaties and agreements and secondly,  the Maharaja of Travancore denounced all agreements  including the 1886 Lease Agreement.  

 

47. It is true that Section 7(1)(b) of the 1947 Act uses  the expression ―all treaties and agreements‖ but, in our  opinion, the word ―all‖ is not intended to cover the  agreements which are not political in nature. This is  clear from the purpose of Section 7 as it deals with  lapsing of suzerainty of His Majesty over the Indian  States and the consequence of lapsing of suzerainty.  Obviously, the provision was not intended to cover the  agreements and treaties other than political. We,  

accordingly, hold that Section 7(1)(b) concerns only with  political treaties and agreements.‖     

And again:-   

―53. It is argued by Mr Harish N. Salve that the Standstill  Agreement, which is between parties different from those  who had executed the 1886 Lease Agreement, is a fresh  agreement which brought into force, for the time being,  contractual obligations between the Maharaja of  Travancore and the Dominion of India. As the parties  were different and the 1947 Act provided for the lapse of  the British suzerainty over the Princely States, the  question of continuance of the 1886 Lease Agreement  does not arise. In any case, the learned Senior Counsel  for Kerala argues that the Standstill Agreement could not  survive after the deletion of Section 177 of the 1935 Act.  We find no merit in these arguments. The Standstill  Agreement is not a fresh agreement between the

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Dominion of India and the State of Travancore as  suggested by Mr Harish N. Salve. The Standstill  Agreement was intended for the benefit of the parties who  were parties to the agreements and arrangements, which  were matters of common concern existing between the  Crown and the State of Travancore. In the background of  Instrument of Accession, it became necessary to have  some arrangement so that the existing agreements and  arrangements between the Crown and the Indian States  continued. We do not think that the Standstill Agreement  is political in nature as contended on behalf of Kerala.  

 

54. The argument that the Standstill Agreement could  not survive after the deletion of Section 177 with effect  from 15-8-1947 by virtue of India (Provisional  Constitution) Order, 1947 is also without substance.  Section 177 was deleted because it could no longer work  and because the Dominion of India was to come into  being with provinces as part of the Dominion and there  was to be no Secretary of State-in-Council. We are in  agreement with Mr Vinod Bobde, learned Senior Counsel  for Tamil Nadu that deletion of Section 177 was  prospective and it did not affect the deeming that had  already taken place in 1935. The Standstill Agreement, in  our view, cannot be said to have been wiped out by the  deletion of Section 177.  

 

x  x  x  x  x     56. The argument that there is no successor of Crown is  irrelevant because by virtue of Section 177, the  Government of Province of Madras had already become  lessee in the 1886 Lease Agreement by deeming in 1935  itself. The Standstill Agreement continued the 1886 Lease  Agreement between the Province of Madras and the State  of Travancore. The 1886 Lease Agreement did not lapse  

under the main provision of Section 7(1)(b) of the 1947  Act. There was no unequivocal and unambiguous

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denouncement of the 1886 Lease Agreement by the Ruler  

of Travancore under proviso to Section 7(1)(b). The  Province of Madras was beneficiary of the Standstill  Agreement. Surely, deletion of Section 177 has not  affected the rights of Province of Madras.‖  

 80. The Court analysed the opinions of the learned Judges  

expressed in Dr. Babu Ram Saksena (supra) and eventually held  

thus:-   

―61.5. A careful consideration of the judgment by  

Mukherjea, J. in Ram Babu Saksena would show that  His Lordship‘s opinion has no application to a non- political agreement such as the 1886 Lease Agreement.  The observation of Mukherjea, J., ―When as a result of  amalgamation or merger, a State loses its full  independent power of action over the subject-matter of a  treaty previously concluded, the treaty must necessarily  lapse. …‖ is in the context of an extradition treaty which  

is purely political in nature. In our view, Ram Babu  Saksena is clearly distinguishable and does not help  Kerala in its argument that the 1886 Lease Agreement  lapsed on merger of the two States, Travancore and  Cochin, into the United State of Travancore and Cochin.‖  

  

81.  The Constitution Bench also addressed the issue whether the  

1886 lease agreement was an Act of State and opined that the 1886  

lease agreement is not political in nature. It distinguished the  

Constitution Bench decision in Virendra Singh and others v.  

State of U.P.8  and ruled that the said decision is distinguishable  

                                                           8 (1955) 1 SCR 415 : AIR 1954 SC 447

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and that the 1886 lease agreement is an ordinary agreement and  

not political in nature.  It is worthy to note that the Constitution  

Bench addressed the scope of Article 363 and Article 131, scanned  

both the Articles and held:-   

―73. Article 131 of the Constitution deals with the  original jurisdiction of this Court. Subject to the  provisions of the Constitution, this Court has original  jurisdiction in any dispute, inter alia, between the  Government of India and any State or States on one side  and one or more other States on the other if and insofar  as the dispute involves any question (whether of law or  fact) on which the existence of legal right depends.  However, by the proviso appended thereto, the  jurisdiction of this Court is barred if the dispute to  which a State specified in Part B of the First Schedule is  a party if the dispute arises out of any provision of a  treaty, agreement, covenant, engagement, sanad or other  similar instrument was entered into or executed before  the commencement of the Constitution and has or has  been continued in operation after such commencement.  

 

74. There is similarity of provision in Article 363 and  proviso to Article 131. The original jurisdiction conferred  on this Court by the main provision contained in Article  131 is excepted by virtue of the proviso in the matters of  political settlements. By making provisions such as  Article 363 and proviso to Article 131, the political  settlements have been taken out of the purview of  judicial pronouncements. Proviso appended to Article  131 renders a dispute arising out of any treaty,  agreement, covenant, engagement, sanad or similar  instrument which is political in nature executed before  the commencement of the Constitution and which has or  has been continued in operation, non-justiciable and

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jurisdiction of this Court is barred. The jurisdiction of  this Court is not taken away in respect of the dispute  arising out of an ordinary agreement. The instruments  referred to and described in the proviso are only those  which are political in nature. Non-political instruments  are not covered by the proviso.  

 

75. The 1886 Lease Agreement does provide for  resolution of disputes between the parties to the  agreement by way of arbitration: it contains an  arbitration clause. The submission of Kerala that  enforcement of any award under the arbitration clause  would be political in nature is misplaced. The  assumption of Kerala that the 1886 Lease Agreement  was not justiciable and enforceable in court of law prior  to the Constitution as no court in Travancore would  obviously entertain a claim against Maharaja and no  court outside the State of Travancore have jurisdiction  over the Maharaja of Travancore is not relevant at all  and devoid of any merit.  

 76. We are in complete agreement with the view taken by  

this Court in Mullaperiyar Environmental Protection  Forum that the 1886 Lease Agreement would not come  within the purview of Article 363 and jurisdiction of this  Court is not barred. As a necessary corollary, the  dispute arising out of the 1886 Lease Agreement is not  barred under Article 131 proviso as well. Moreover, the  principal challenge laid in the suit pertains to the  constitutional validity of the 2006 (Amendment) Act for  which Article 363 or for that matter under Article 131  proviso does not come into operation at all.‖  

 82. Commenting on the aforesaid decision, it is contended by Mr.  

Nariman that in Madhav Rao Scindia (supra), the majority had  

clearly expressed the view that paramountcy no longer survived

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after the coming into force of the Constitution of India.  In the said  

decision, it has been clearly spelt out that it is difficult to conceive  

of the Government of a democratic Republic exercising against its  

citizens ―paramountcy claim to be inherited, imperial power‖.   

According to Mr. Nariman, when everything has come to an end, the  

concept of restriction to ‗political nature‘, as has been held in State  

of Tamil Nadu v. State of Kerala (supra), sounds a discordant  

note.  

83. Mr. Dwivedi, learned senior counsel, per contra, would submit  

that the decision in State of Tamil Nadu (supra) does not run  

counter to the principle stated in Madhav Rao Scindia.  According  

to him, Madhav Rao Scindia exclusively dealt with a political  

situation.  To bolster the said aspect, he has drawn our attention to  

the ―Standstill Agreement‖ which does not apply to any  

paramountcy function.  He has also laid stress on the passage that  

discusses about quid pro quo for agreeing to surrender the power  

and authority by the rulers and that is why it was enacted in the  

Constitution that the Princes who had signed the covenant of the  

nature specified should be recognized as rulers.  In essence, the  

submission is that if the authority in Madhav Rao Scindia’s case

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is appositely read and understood, it dealt with the abolition of  

Privy Purses by the President of India and how the action was  

erroneous and how the Court treated it to be of political nature.  

84. It is absolutely manifest that the ruling in Madhav Rao  

Scindia (supra) states that after coming into force of the 1947 Act,  

the paramountcy lapsed and after the integration of the States with  

the Indian Union, the shadow of paramountcy faded and the  

Government of India became the full sovereign authority.  After the  

Constitution came into force, the exercise of power by the State over  

its citizens stood circumscribed by the Constitution.  In the said  

case, the doctrine of paramountcy has no play.  The two  

agreements, on a studied scrutiny, do not indicate any aspect that  

can be called political or touching any facet of the sovereignty of  

India. The agreements covered the areas of larger public interest  

like construction of dams and irrigation of land existing within the  

two States, namely, the State of Mysore and the State of Madras  

and had nothing to do with political arrangement.  Therefore, we  

are not inclined to accept the submission of Mr. Nariman that after  

coming into force of the 1947 Act and thereafter the Constitution of

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India, the agreements of 1892 and 1924 became inoperative and  

totally extinct.  

I.  Infraction of Article 363 and non-maintainability of the  dispute on the basis of agreements  

 85. The next plank of submission pertains to the constitutional  

infraction of Article 363.  Article 363 reads as follows:-  

―Article 363. Bar to interference by courts in disputes  arising out of certain treaties, agreements, etc.–  (1) Notwithstanding anything in this Constitution but  subject to the provisions of Article 143, neither the  Supreme Court nor any other court shall have  jurisdiction in any dispute arising out of any provision of  a treaty, agreement, covenant, engagement, sanad or  other similar instrument which was entered into or  executed before the commencement of this Constitution  by any Ruler of an Indian State and to which the  Government was a party and which has or has been  continued in operation after such commencement, or in  any dispute in respect of any right accruing under or any  liability or obligation arising out of any of the provisions  of this Constitution relating to any such treaty,  agreement, covenant, engagement, sanad or other similar  instrument    (2) In this article    

(a) Indian State means any territory recognised  before the commencement of this Constitution by  His Majesty or the Government of the Dominion of  India as being such a State; and    (b) Ruler includes the Prince, Chief or other person  recognised before such commencement by His

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Majesty or the Government of the Dominion of India  as the Ruler of any Indian State.‖  

86. Pressing into service the aforesaid Article, it is contended by     

Mr. Nariman that the said Article commences with a non-obstante  

clause but subject to the provisions of Article 143 and that would  

exclude anything contained in Article 262(1) and, therefore, the bar  

under Article 363(1) must prevail.  He has criticized the finding of  

the Tribunal which has placed reliance on the judgment of this  

Court in the Privy Purse case placing reliance on the view of Hegde,  

J. which is not the majority view because the majority spoke  

through Shah,J.  It is urged by him that the finding of the Tribunal  

that Article 363 cannot bar the investigation of any complaint  

including a complaint regarding the agreement which has been  

executed by the then Ruler of a Princely State like Mysore which  

became an Indian State within the Dominion of India, a State under  

the First Schedule after coming into force of the Constitution is  

untenable. That apart, the Tribunal has opined that once the  

dispute is referred to the Tribunal which has exclusive jurisdiction  

under the Constitution to examine the dispute in respect of use,  

distribution or control of waters of any inter-state river or river  

valley, the said jurisdiction cannot be controlled or curtailed by

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Article 363 and in case of agreement relating to sharing of water of  

inter-State river, the Tribunal has to examine the claims of the  

different riparian States in the background of such agreement and,  

therefore, the enquiry is not barred under Article 363 of the  

Constitution.  Attacking the said findings, it is canvassed by Mr.  

Nariman that the Tribunal has failed to appreciate the fact that  

Articles 262 and 263 operate in entirely different fields, for Article  

262 is only an exception how a particular matter relating to inter-

State river water disputes between States of India have to be  

decided because it is not decided by the exclusive remedy provided  

in Article 131 of the Constitution but by an alternative mode now  

prescribed by the Parliament by law under Article 261(2), that is,  

the 1956 Act.  It is further put forth by him that the agreements of  

the present nature come within the purview of Article 363 and to  

substantiate the said argument, he has placed reliance on State of  

Seraikella v. Union of India and another9.    

87. It is submitted by Mr. Dwivedi, learned senior counsel for the  

State of Tamil Nadu, that the bar of jurisdiction of this Court under  

Article 363 of the Constitution relates only to certain clauses of  

                                                           9 1951 SCR 474 : AIR 1951 SC 253

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agreements, treaties, covenants, engagements, ―Sanad‖, etc.  The  

expression ―other similar instruments‘ clearly indicates that it is not  

as if all kinds of agreements and treaties would come within the  

purview of the said provision.  Article 363 covers only such political  

agreements executed between the Rulers of Indian States and the  

Government of the Dominion of India between 1947 and 1950.   

From the intrinsic language of Article 363 read with the proviso to  

Article 131, it is clear that the bar of jurisdiction of the Court  

applies only to disputes arising out of political agreements.  

88. He has referred to the debates of the Constituent Assembly  

especially the observations made by Dr. B.R. Ambedkar as the  

Chairman of the Drafting Committee while moving the draft  

Constitution for consideration by the Constituent Assembly.  The  

said observations are extracted hereunder:-  

―On the 15th August 1947 we had 600 Indian States in  existence.  Today by the integration of the Indian States  with Indian Provinces or merger among themselves or by  the Centre having taken them as centrally administered  areas, there have remained some 20 or 30 States as  viable States.  This is a very rapid process and progress.   I appeal to those States that remain to fall in line with  the Indian Provinces and to become full units of the  Indian Union on the same terms as the Indian Provinces.   They will thereby give the Indian Union the strength it

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needs.  They will save themselves the bother of starting  their own Constituent Assemblies and drafting their own  separate constitution, and they will lose nothing that is of  value to them.  I feel hopeful that my appeal will not go in  vain and that before the Constitution is passed, we will  be able to wipe off the differences between the Provinces  and the Indian States.‖   

(B. Shiva Rao (Ed.), The Framing of India’s  Constitution – Select Documents, Volume IV, at  p.434)  

 89. The learned senior counsel would submit that the purpose of  

Article 363 was to protect the Government of India from purely  

political agreements which had been entered into between the  

Rulers of the Indian States and the Dominion of India or its  

predecessor Governments so as to prevent any obstruction to the  

smooth accession of the Indian States to the Dominion of India.  

90. To appreciate the submissions advanced before this Court, we  

are required to analyse what has been said by this Court in State  

of Seraikella.  In the said case, a suit was filed under the Original  

Jurisdiction of the Federal Court as it was functioning before the  

Constitution of India came into force.  The State of Seraikella was a  

State in Orissa and on 16th August, 1947, the plaintiff-State  

acceded to the Dominion of India by virtue of the Instrument of  

Accession executed by its Ruler and accepted by the Governor

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General under Section 6 of the Government of India Act, 1935.   

After coming into force of the Indian Independence Act, 1947, the  

Dominion of India was set up under the Government of India Act,  

1935 as adopted which provided that the Indian State may accede  

to the Dominion of India by an Instrument of Accession.  It was  

expressly provided that by executing the said instrument, the Ruler  

should not be deemed to have committed to the acceptance of any  

future Constitution of India or to fetter his discretion to enter into  

arrangements with the Government of India under any such future  

Constitution.  Various other postulates which were part of the  

instrument have been taken note of by the Constitution Bench.  It  

is worthy to note that apart from the initial instrument, no  

supplement instrument was executed by the Ruler and no  

amendment of the 1947 Act was accepted by him.  A ―Standstill  

Agreement‖ was also executed by the Ruler under which it was  

agreed that matters of common concern as specified in the  

Schedule to the agreement would continue between the Dominion of  

India and the said State until new agreements were made in that  

behalf.  The controversy arose in the suit as the plaintiff-State  

claimed to have merged in the province of Bihar.  It was contended

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by the plaintiff that the Government of Orissa wrongfully and  

illegally purported to administer the plaintiff-State by virtue of the  

Notification of 23.12.1947 under the Indian Independence Act,  

1947.  It was claimed that the Act was ultra vires and had no  

binding effect on the plaintiff-State.  It was also contended that the  

agreement dated 15.12.1947 was void for want of consideration and  

was inoperative.  It was further canvassed that on 18th May, 1948,  

without the consent and approval of the plaintiff-State or its Ruler,  

the Province of Bihar absolutely illegally took over the  

administration of the State and passed the Seraikella and  

Kharsawan States Order, 1948.  It was also asserted that the  

Dominion of India had no authority to go beyond the Instrument of  

Accession and further had no authority to delegate powers to the  

Province of Bihar to administer the plaintiff-State. The Constitution  

Bench, noting various facts and commenting on coming into effect  

of the Constitution of India and the jurisdiction conferred on the  

Court under Article 131, proceeded to analyse the scope and ambit  

of Article 363 of the Constitution.  Dwelling upon the same, Kania,  

C.J. opined that the all-embracing opening words of Article 363 in  

terms override all provisions of the Constitution, but are made

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subject only to the provisions of Article 143 which enables the  

President to consult the Supreme Court on matters referred to and,  

therefore, clearly override the operation of Article 374(2) also. The  

jurisdiction of the Supreme Court having been stated in Articles  

131 to 136, Article 363 provides that notwithstanding anything  

contained in those articles and other articles of the Constitution,  

neither the Supreme Court nor any other court will have  

jurisdiction in any dispute arising out of any provision of a treaty,  

agreement, covenant, engagement, ―Sanad‖ or other similar  

instrument which was entered into or executed before the  

commencement of this Constitution and which had or had been  

continued in operation after such commencement. If, therefore, the  

dispute arises in respect of a document of that description and if  

such document had been executed before the Constitution by a  

Ruler and which was or had continued in operation after such  

commencement, this Court has no jurisdiction to determine such  

issue. The learned Chief Justice repelled the argument that the  

Article is prospective and not retrospective and, hence, it only  

covers the cases which are filed in the Supreme Court after the  

Constitution came into force and did not affect suits filed in the

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Federal Court before the Constitution of India came into operation.  

Thereafter, he adverted to the assertions made in the plaint and  

stated that the only question which remained for decision was  

whether on the structure of the plaint, the dispute raised in the suit  

arose out of the provision of a treaty, agreement, covenant,  

engagement, ―Sanad‖  or any other similar instrument. Eventually,  

Kania, C.J. held:-  

―I have already noticed above that the dispute in respect  of the agreement of the 15th December, 1947, is  immaterial for the present discussion. If the plaintiff  repudiates that agreement he is seeking to enforce his  rights after ignoring the same. If the plaintiff (as noticed  in four of the suits) relies on this agreement, it becomes a  part of the Instrument of Accession under Section 6(5) of  the Government of India Act, 1935, and the dispute will  still have to be considered having regard to the terms of  the two documents viz. the original Instrument of  Accession and the supplementary Instrument. The  question thus resolves itself into an analysis of the plaint  and to find out what the plaintiff seeks to get by his suit.  

Apart from the fact that in prayers (f) and (g) of his plaint  he seeks to enforce his rights under the Agreement of the  15th December, 1947, it appears clear that the whole  ambit of the suit is to enforce his Instrument of  Accession. The plaintiff contends firstly that it had signed  the Instrument of Accession through its Ruler. The State  next complains that, acting beyond the powers given over  under the Instrument of Accession, the Dominion of India  and the State of Bihar are trespassing wrongfully on its  legislative and executive functions, that the Dominion of  India and the State of Bihar are making laws which they  have no power to make having regard to the Instrument

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of Accession, and are wrongfully interfering with the  administration of the State beyond the rights given to  them under the Instrument of Accession. The whole  plaint is nothing else except the claim to enforce the  plaintiff‘s right under the Instrument of Accession. The  dispute therefore in my opinion clearly is in respect of  this Instrument of Accession and is covered by Article  363(1) of the Constitution of India. The question of the  validity of the different enactments and orders is also  based on the rights claimed under the Instrument of  Accession so far as the plaintiff is concerned. On the side  of the defendants, the position is that they admit the  Instrument of Accession and they do not claim that they  are exercising the disputed rights under that Instrument.  Their contention is that the Agreement of the 15th of  December, 1947, was validly signed and is binding and  enforceable against the plaintiff. The defendants contend  that their action in passing the disputed legislation and  orders and the action in taking over the administration  are all based on that Agreement of 15th December, 1947.  If the plaintiff contends that that Agreement is not  binding on it, it cannot enforce its rights under the  original jurisdiction of the Court. If the plaintiff has a  grievance and a right to a relief which the defendants  contend it has not, the forum to seek redress is not the  Supreme Court exercising its original jurisdiction on the  transfer of the suit from the Federal Court. According to  the defendants, the situation in those circumstances will  be of a Sovereign Independent State trespassing on the  territories, powers and privileges of another neighbouring  independent State. To redress a grievance arising out of  such action on the part of the defendants, the Supreme  Court is not the forum to give relief. The issue is  answered in the negative, costs in the cause.‖  

91. Bose, J., in his separate opinion, addressed the Issue No.1  

which was to the following effect:-

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―1. Whether having regard to the subject-matter of the  suit and the provisions contained in Article 363(1) of the  Constitution of India, this Hon‘ble Court has jurisdiction  to entertain the suit?‖  

Answering the said issue, he opined:-  

―Even so, it is next contended, Article 363, which  enacts a general rule of non-interference by courts  in certain classes of disputes, cannot control the  operation of Article 374(2), which is a special  provision providing that suits, appeals and  proceedings pending in the Federal Court at the  commencement of the Constitution shall stand  removed to the Supreme Court and that the  Supreme Court shall have jurisdiction to hear and  determine the same. There would be considerable  force in this argument but for the opening words of  Article 363(1), namely, ―notwithstanding anything in  this Constitution.‖ These words clearly indicate that  the bar to the exercise of jurisdiction enacted in  Article 363 controls the operation of Article  374(2)and excludes the rule of construction invoked  by the plaintiffs.‖     

92. The aforesaid decision has to be appositely understood and  

appreciated. Mr. Nariman would submit that any controversy  

relating to any agreement is not entertainable by this Court.  

According to him, a complaint for raising a dispute under Article  

262 of the Constitution can be independent without the base or  

foundation of the 1892 and 1924 agreements but to structure the  

stand on the fulcrum of the agreements would run counter to

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Article 363 of the Constitution as has been held by the Constitution  

Bench in State of Seraikella (supra). It is also proponed by him  

that the later decision in State of Tamil Nadu v. State of Kerala  

(supra) has not taken note of the earlier decision and introduced  

the element of political agreement and categorized agreements into  

distinct ones, namely, political agreement and ordinary agreement.   

The argument deserves keen scrutiny.  We have extensively  

discussed the facts in State of Seraikella (supra) and the view  

expressed therein. As is perceptible to us, the Constitution Bench,  

in actuality, was dealing with a political issue as there is constant  

reference to the ―Instrument of Accession‖  and the claim was to  

enforce the instrument and further to declare the legislative and  

executive action of the Dominion of India and the State of Bihar as  

illegal.   The stand of the respondent, namely, Dominion of India,  

was that it was acting as per the Instrument of Accession. The rival  

stands and the analysis made thereon clearly reflect the political  

nature of the controversy.   

93. Sastri, J., in his concurring opinion, stated:-    

―22. … The controversies regarding these matters are but  contentions whereby the parties seek to establish, on the

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one hand, that the Instrument of Accession still governs  their mutual rights and obligations and, on the other,  that that Instrument stands superseded and is no longer  in force. Issues have no doubt been framed in regard to  these matters but they cannot, in my opinion, be  considered to be disputes for the purposes of Article 131  or Article 363(1). These articles deal with the jurisdiction  of Courts and they envisage disputed claims to  substantive legal rights. The claims in these suits are  undoubtedly based on the respective Instruments of  Accession and they are repudiated because those  Instruments of Accession are said to have been  superseded by reason of the alleged agreement of  December, 1947. These claims are disputes to which  Article 363(1) clearly applies. The other so-called disputes  are only incidental and ancillary controversies raised  with a view to support or overthrow the claims and  cannot, in my opinion, affect the operation of the bar  under that Article any more than, for instance, Issue 5  relating to the necessity for notice to the defendants  under Section 80 of the Civil Procedure Code.     

23.    Nevertheless, it is contended, the article has no  application here and it cannot operate retrospectively and  applies only to disputes arising after the commencement  of the Constitution. I am unable to accept this restricted  interpretation of Article 363(1). While the Article  undoubtedly postulates the continued operation of the  treaties, agreements, etc., entered into or executed before  the commencement of the Constitution and giving rise to  the disputes, it does not require, as a condition of its  application, that such Disputes should arise after the  commencement of the Constitution. I see no reason for  importing a restriction which a plain grammatical  construction of the language employed does not warrant.  It is not correct to say that the wider construction would  make the operation of the article retrospective, for the bar  to interference by the court operates only after the  Constitution came into force irrespective of the disputes

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concerned having arisen before or after the  commencement of the Constitution. It was said that the  article should not be construed so as to bar the trial of  pending suits or proceedings. But this is not a case of a  pending action in a court which continues to function.  The Federal Court, in which the suits were pending, and  which had exclusive jurisdiction to deal with them, was  abolished and a new court, the Supreme Court of India,  was created with original jurisdiction strictly limited to  disputes relating to legal rights between States  recognised as such under the Constitution. But as the  States specified in Part B of the First Schedule had a  semi-sovereign status before the Constitution,  agreements with them were in the nature of international  treaties and covenants, and disputes arising out of them  would not lie in municipal courts. That principle is given  effect to, so far as the Supreme Court‘s original  jurisdiction is concerned, by the proviso to Article 131  which defines such jurisdiction and, in regard to all  courts and in respect of all proceedings, by Article 363(1).  The reason for applying that principle is greater, not less,  in regard to such disputes arising before the Constitution  when these States, then known as Indian States, enjoyed  a higher degree of political freedom. Furthermore, the  construction contended for by the plaintiffs as applied to  Article 131 would mean that the Court would,  notwithstanding the proviso, have jurisdiction in respect  of such disputes, provided they arose before the  commencement of the Constitution. If that had been  intended, one would expect that such jurisdiction would  have been conferred by positive enactment, instead of  being left to be derived by implication from a proviso  intended to delimit the jurisdiction conferred by that  article. It seems to me, therefore, that the proviso to  Article 131 must be construed as applicable to disputes  of the kind mentioned arising both before and after the  commencement of the Constitution. If so, Article 363(1)  must receive the same construction, the language  employed being essentially the same.‖

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94. Relying on the aforesaid opinion of Sastri. J., it is submitted by  

Mr. Nariman that each of the agreements of 1892 and 1924  

executed by the Ruler of a semi-sovereign state has to be regarded  

as an international treaty, covenant or agreement as in any case  

even under common law which continues under the provisions of  

Article 372 and thus, the municipal courts or authorities would not  

have jurisdiction to adjudicate upon them, for Article 363 clearly  

stipulates that municipal courts do not interfere in such  

agreements where one of the parties has a semi-sovereign status.    

In essence, the contention is that the agreements are not liable to  

be adjudicated in a court of law or tribunal as has been held by the  

Constitution Bench in In Re: Presidential Reference (Cauvery  

Water Disputes Tribunal)10 to the effect that the entire ―judicial  

power of the State‖ under Article 131 relating to adjudication of  

water disputes stood transferred under the law enacted under  

Article 262(1), that is, the 1956 Act and the finding recorded by the  

Tribunal is not a court and, therefore, Article 363(1) would not  

                                                           10 1993 (Supp) (1) SCC 96

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apply to it is incorrect. According to him, the agreements are not to  

be looked into for any purpose.   

95. To appreciate the submission, we may refer to the analysis put  

forth by the Tribunal in this regard.  The Tribunal adverted to the  

decision in Madhav Rao Scindia (supra) and came to hold thus:-  

―21.  The same is the position here. The Inter-State Water  Disputes Act, 1956 has not been enacted under Entry 56  of the Union List of Seventh Schedule of the Constitution.  It has been enacted under power vested in the Parliament  by Article 262 of the Constitution. In view of Article 262  Parliament may by law provide for adjudication of any  dispute or complaint with respect to the use, distribution  or control of the waters of, or in, any inter- State river or  

river valley. Article 262(2) has a non-obstante clause  saying that notwithstanding anything in the  Constitution, Parliament may by law provide that neither  the Supreme Court nor any other court shall exercise  jurisdiction in respect of any such dispute or complaint  as is referred in clause (1). It has already been pointed  out above that in exercise of this power in the Inter-State  Water Disputes Act, 1956, Section 11 excludes the  jurisdiction of all courts including the Supreme Court, if  

in Article 363(1) there is a non- obstante clause giving an  over-riding effect, then even in Article 262(2) there is a  non-obstante clause which read with Section 11 of the  Inter-State Water Disputes Act shall exclude the  jurisdiction of Supreme Court or any other court in  respect of a dispute relating to use, distribution and  control of waters of inter-State river or river valley. It  cannot be disputed that Article 262 is a special provision  providing for adjudication of any dispute in respect of  use, distribution or control of waters of an inter-State  river or river valley. As such on the well-known rule of

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construction generalia specialibus non derogant, a special  provision excludes the general provision; Article 363  cannot bar the investigation in respect of any complaint  including a complaint regarding the non-compliance of  terms of an agreement which had been executed by the  then ruler of a princely State like Mysore which became  an Indian State within the Dominion of India and later  after coming into force of the Constitution, a State under  First Schedule of the Constitution.‖  

 

96.  The Tribunal, thereafter, placed reliance on Maharaja Shree  

Umaid Mills Ltd. v. Union of India11; State of Seraikella (supra)  

and H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia  

Bahadur (supra) and the 1956 Act and opined:-  

―In this background, it is very difficult to hold that Article  363 of the Constitution shall govern or control the  inquiry and investigation by the Tribunal in respect of a  water dispute relating to interpretation of the terms of  any agreement or failure of any State to implement the  terms of such agreement relating to the use, distribution  or control of such waters.‖    

97.  Having noted the same, we may look at what has been stated  

by this Court in the context of Article 363 of the Constitution. In  

Madhav Rao Scindia case, Hidayatullah, C.J., while dealing with  

the interpretation of Article 363, observed:-   

―66. I begin with Article 363. That article was quoted in  extenso earlier. The learned Attorney-General used the  

                                                           11 (1963) Supp. (2) SCR 515 : AIR 1963 SC 953

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historical events as background for his contention that  Article 363 must be construed as giving an exclusive  right of determination to the President on the subject of  recognition and withdrawal of recognition. He submitted  that just as an act of State cannot be questioned in a  Municipal Court so also the withdrawal of recognition  cannot be called in question. He cited a large number of  authorities in support of his case that an act of State is  not subject to the scrutiny of the Courts.  

 

67. The question here is not one of an act of State. Nor  can any assurance be drawn from the doctrine of act of  State. What we have to do is to construe the article. It  bars jurisdiction of Court. It has no bearing upon the  rights of the Rulers as such. It neither increases nor  reduces those rights by an iota. I shall presently attempt  to find out its meaning. Before I do so I must say that it  is a well-known rule of interpretation of provisions  barring the jurisdiction of civil courts that they must be  strictly construed for the exclusion of the jurisdiction of a  civil court, and least of all the Supreme Court, is not to  be lightly inferred. The gist of the present dispute is  whether the article bars the relief to the petitioners  although as held by me, the order of the President is  ultra vires.  

 68. The article commences with the opening words  ―notwithstanding anything in this Constitution‖. These  exclusionary words are no doubt potent enough to  exclude every consideration arising from the other  provisions of the Constitution including the Chapter on  Fundamental Rights, but for that reason alone we must  determine the scope of the article strictly. The article goes  on to say that jurisdiction of all Courts including the  Supreme Court is barred except that the President may  consult the Supreme Court. Having said this the articles  goes on to specify the matters on which the jurisdiction is  barred. This it does in two parts. The first part is: ―In any  dispute arising out of any provision of a treaty etc., which

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was entered into or executed before the commencement  of this Constitution by any Ruler of an Indian State to  which the Government of the Dominion of India was a  party and which has or has been continued in operation  after such commencement‖. This shows that a dispute  relating to the enforcement, interpretation or breach of  any treaty etc., is barred from the Courts‘ jurisdiction.  The words ‗arising out of the provisions of a treaty etc.,‘  limit the words. Thus if a treaty, covenant, etc., is  characterised as forged by any party, that would not be a  dispute ‗arising out of any provision of a treaty, covenant,  etc.‘ That dispute would be whether there is a genuine  treaty or not. This illustration is given by me to show that  the exclusion is not all-embracing. The dispute to be  barred must arise from a provision of the treaty, etc.‖  

  

98.  Shah, J., while speaking for the majority, interpreting Article  

363, ruled:-  

―133. Jurisdiction of the Courts in matters specified is  excluded not because the Union of India is successor to  the paramountcy of the British Crown, nor because the  rights and obligations accepted and recognized by the  Constitution may still be regarded as flowing from acts of  State: it is only excluded in respect of specific matters by  the express provision in Article 363 of the Constitution.  Jurisdiction of the Courts even in those matters is not  barred ―at the threshold‖ as contended by the Attorney- General. The President cannot lay down the extent of this  Court‘s jurisdiction. He is not made by the Constitution  the arbiter of the extent of his authority, nor of the  validity of his acts. Action of President is liable to be  tested for its validity before the Courts unless their  jurisdiction is by express enactment or clear implication  barred. To accede to the claim that the jurisdiction of the  Court is barred in respect of whatever the executive  asserts is valid, is plainly to subvert the Rule of law. It is

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therefore within the province of the Court alone to  determine what the dispute brought before it is and to  determine whether the jurisdiction of the Court is,  because it falls within one of the two limbs of Article 363,  excluded qua that dispute. The first limb of Article 363  operates to defeat the jurisdiction of the Courts only  when a claim to relief founded on the covenants is  disputed: the second limb of Article 363 operates when  there is a dispute with respect to rights or obligations  accruing or arising out of a provision of the Constitution  relating to a covenant.  

 134. In dealing with the dimensions of exclusion of the  exercise of judicial power under Article 363, it is  necessary to bear in mind certain broad considerations.  The proper forum under our Constitution for determining  a legal dispute is the Court which is by training and  experience, assisted by properly qualified advocates,  fitted to perform that task. A provision which purports to  exclude the jurisdiction of the Courts in certain matters  and to deprive the aggrieved party of the normal remedy  will be strictly construed, for it is a principle not to be  whittled down that an aggrieved party will not, unless the  jurisdiction of the Courts is by clear enactment or  necessary implication barred, be denied his right to seek  recourse to the Courts for determination of his rights.  The Court will interpret a statute as far as possible,  agreeably to justice and reason and that in case of two or  more interpretations, one which is more reasonable and  just will be adopted, for there is always a presumption  against the law maker intending injustice and unreason.  The Court will avoid imputing to the Legislature an  intention to enact a provision which flouts notions of  justice and norms of fairplay, unless a contrary intention  is manifest from words plain and unambiguous. The  provision in a statute will not be construed to defeat its  manifest purpose and general values which animate its  structure. In an avowedly democratic polity, statutory  provisions ensuring the security of fundamental human

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rights including the right to property must, unless the  mandate to precise and unqualified, be construed  liberally so as to uphold the right. These rules apply to  the interpretation of constitutional and statutory  provisions alike.‖  

 And again:-   

―141. …  Article 363 prescribes a limited exclusion of the  jurisdiction of Courts, but that exclusion does not  operate upon the claim for a Privy Purse, relying upon  Article 291. The question as to the jurisdiction of the  Courts to entertain a claim for payment of Privy Purse  

did not fall to be determined in Nawab Usman Ali Khan  case. The only question raised was whether the Privy  Purse was not capable of attachment in execution of the  decree of a civil court, because of the specific exemption  

of political pensions under Section 60(1)(g) of the Code of  Civil Procedure. In Kunvar Shri Vir Rajendra Singh case  the Court did not express any opinion that Article  366(22) was a provision relating to a covenant within the  meaning of Article 363. In that case the petitioner who  was not recognised as a Ruler by the President  abandoned at the hearing of his petition his claim to the  Privy Purse payable to the Ruler of Dholpur, and pressed  his claim by succession under the Hindu Law to the  Private property of the former Ruler. The Court was not  called upon to decide and did not decide that Article  366(22) was a provision relating to a covenant within the  meaning of Article 363. It is difficult to regard a word or a  clause occurring in a judgment of this Court, divorced  from its context, as containing a full exposition of the law  on a question when the question did not fall to be  answered in that judgment.    142. In the view we have expressed, the argument raised  by Mr Palkhivala that even if clause (22) of Article 366 is  a provision relating to the covenants, the jurisdiction of

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this Court under Article 32 to grant relief against an  invalid exercise of power withdrawing recognition of the  Rulers is not barred, needs no consideration.  

  

99. Presently, we may refer to the analysis of Article 363 as has  

been made by the Constitution Bench in State of Tamil Nadu v.  

State of Kerala (supra). In the said case, the learned Chief Justice,  

speaking for the Court, opined that a plain reading of Article 363  

leaves no manner of doubt that if the dispute arises in respect of a  

document of that description and if such document had been  

executed before the commencement of the Constitution, the  

interference by courts is barred. The documents referred to in  

Article 363 are those which are political in nature. Any dispute  

regarding such documents is non-justiciable. The object behind  

Article 363 is to bind the Indian Rulers with treaties, agreements,  

covenants, engagements, ―Sanads‖ or other similar instruments  

entered into or executed before the commencement of the  

Constitution and to prevent the Indian Rulers from resiling from  

such agreements as the integrity of India was to be maintained at  

all costs and could not be affected by raising certain disputes.  

Thereafter, the larger Bench referred to the ‗White Paper‘ on Indian  

States prepared by the Government of India in 1948 which brings

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out the historical perspective which necessitated the adoption of the  

provisions in Article 363.   

100. The Court reproduced a passage from the ‗White Paper‘ which  

reads as under:-  

―Article 363 has therefore been embodied in the  Constitution which excludes specifically the Agreements  of Merger and the Covenants from the jurisdiction of  courts except in cases which may be referred to the  Supreme Court by the President‖.  

 101. After so stating, the Court referred to Article 131 that deals  

with the original jurisdiction of this Court and proceeded to state:-  

―74. There is similarity of provision in Article 363 and  proviso to Article 131. The original jurisdiction conferred  on this Court by the main provision contained in Article  131 is excepted by virtue of the proviso in the matters of  political settlements. By making provisions such as  Article 363 and proviso to Article 131, the political  settlements have been taken out of the purview of judicial  pronouncements. Proviso appended to Article 131  renders a dispute arising out of any treaty, agreement,  covenant, engagement, sanad or similar instrument  which is political in nature executed before the  commencement of the Constitution and which has or has  been continued in operation, non-justiciable and  jurisdiction of this Court is barred. The jurisdiction of  this Court is not taken away in respect of the dispute  arising out of an ordinary agreement. The instruments  referred to and described in the proviso are only those  which are political in nature. Non-political instruments  are not covered by the proviso.‖  

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102.  Be it noted, the larger Bench has referred to the decision in  

Virendra Singh (supra) and opined thus:-   

―70.2. The exposition of above legal position by the  Constitution Bench hardly admits of any doubt.  Obviously, the accession of an Indian State to the  Dominion of India and acceptance of it by the Dominion  are acts of State and jurisdiction of the courts to go into its  competency or settle any dispute arising out of them are  clearly barred under Article 363 and the proviso to Article  131. As we have already held—and that is what has been  held in the 2006 judgment as well—that the 1886 Lease  Agreement is an ordinary agreement and that it is not  political in nature, the embargo of Article 363 and the  proviso to Article 131 have no application.‖  

 

And again:-     

―76. We are in complete agreement with the view taken by  this Court in Mullaperiyar Environmental Protection Forum  that the 1886 Lease Agreement would not come within the  purview of Article 363 and jurisdiction of this Court is not  barred. As a necessary corollary, the dispute arising out  of the 1886 Lease Agreement is not barred under Article  131 proviso as well. Moreover, the principal challenge laid  in the suit pertains to the constitutional validity of the  2006 (Amendment) Act for which Article 363 or for that  matter under Article 131 proviso does not come into  operation at all.‖    

103. On a perusal of the aforesaid, it seems to us that there is no  

discord or lack of concord with the view expressed in State of  

Seraikella (supra). We are persuaded to think so as the  

Constitution Bench in the earlier case was dealing with a different

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kind of instrument which was indubitably of political character  

entered prior to coming into force of the Constitution.    

104. In the case of Madhav Rao Scindia (supra), the sphere of  

adjudication was absolutely different.  In the case at hand, the  

agreements in question relate to the sphere of water sharing,  

irrigation, etc. and have nothing to do, even remotely, with the  

concept of sovereignty and integrity of India and, therefore, it will be  

erroneous to hold that the bar under Article 363 of the Constitution  

would apply.  It is so as both the agreements between the States do  

not refer to any political element and cannot be termed as political  

in character.  The view expressed in State of Seraikella (supra), as  

already stated hereinbefore, related to an aspect of integrity or  

sovereignty of India and that is why, the bar operated.  The bar  

under Article 363 was not allowed to stand in Madhav Rao  

Scindia (supra) as it was dealing with a constitutional claim of the  

Rulers relating to Privy Purse and the same did not have any  

political characteristics.  In any case, the position has been  

absolutely made clear by the Constitution Bench in State of Tamil  

Nadu (popularly known as Mullaperiyar dam case).  Therefore, it  

can be stated, without desiring to give rise to any controversy and

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without fear of any contradiction, that the bar under Article 363 is  

not applicable.  The submission astutely advanced on behalf of the  

State of Karnataka that the two agreements should not be looked  

into at all for the purpose of adjudication of the water dispute by  

the Tribunal because of Article 262 of the Constitution is  

unacceptable.  

J. Unconscionability of the 1892 and 1924 agreements    

105. It is submitted by Mr. Nariman, learned senior counsel, that  

both the 1892 and 1924 agreements are hit by the doctrine of  

unconscionability as the Princely State of Mysore and the State of  

Madras were on two different platforms.  The State of Mysore was a  

vassal State and had really no authority to speak on various  

aspects of the agreement.  In fact, it had no power to bargain and it  

is reflectible when the Secretary of State was able to set aside the  

binding award passed by the learned Arbitrator.  The agreements,  

contends Mr. Nariman, suffer from unconscionable bargain.   

Learned senior counsel is critical that the Tribunal has not adverted  

to the principle of unconscionability at all and erroneously relied on  

the decision in New Bihar Biri Leaves Co. and others v. State of

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Bihar and others12 and arrived at the conclusion that the  

agreement having been acted upon by both the parties in 1974,  

there was an estoppel.  He has referred to Section 16 of the Indian  

Contract Act and the commentary by Pollock and Mulla in the book  

(1st Edition, 1905).  The commentary commended reads as follows:-  

―"Unconscionable bargains" - Illustration (c) contemplates  the case of a person  already indebted to a money-lender    contracting a fresh loan with him on terms on the face of  them unconscionable. In such a case a presumption is  raised that the borrower's consent was not free. The  presumption is rebuttable, but the burden of proof is on  the party who has sought to make an exorbitant profit of  the other's distress. The question is not of fraud, but of  the unconscientious use of superior power."  

    [Emphasis Supplied]  106. He has also referred to the 8th Edition by M.C. Setalvad in  

1957 wherein it has been commented:-  

―........ Relief in case of unconscionable bargains is an old  head of English equity. It was formerly associated in a  special manner with sales of reversionary interests,  which the Court was eager to restrain; and for some time  it was the doctrine of the Court that a sale of any  reversionary interest, if proved to have been made for  only a little under the value, must be set aside without  further inquiry. This rule was at last found so  inconvenient that it was abolished by statute. But the  general principles of equity in dealing with what are  called ―catching bargains‖ remain, and the third clause of  

                                                           12 (1981) 1 SCC 537

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the section now before us is apparently intended to  embody them.‖  

[Underlining is ours]  

 

107. Apart from relying on the said provision and the  

commentaries, he has also drawn inspiration from the authorities  

in Central Inland Water Transport Corporation Limited and  

another v. Brojo Nath Ganguly & Another.13; O.P. Bhandari v.  

ITDC14; Delhi Transport Corporation v. D.T.C. Mazdoor  

Congress and others15; and Balmer Lawrie & Company Limited  

and others v. Partha Sarathi Sen Roy and others (2J)16.  He has  

also drawn our attention to the Black‘s Law Dictionary by Bryan  

Garner, Editor-Chief (10th Edition, Thomson Reuters) wherein  

unconscionability has been defined thus:-  

―Unconscionability. 1. Extreme  unfairness.  Unconscionability is normally assessed by an objective  standard: (1) one party's lack of meaningful choice, and  (2) contractual terms that unreasonably favor the other  party. 2. The principle that a court may refuse to enforce  a contract that is unfair or oppressive because of  procedural abuses during contract formation or because  of overreaching contractual terms, esp. terms that are  unreasonably favorable to one party while precluding  meaningful choice for the other party."  

                                                           13 (1986) 3 SCC 156  14 (1986) 4 SCC 337  15 1991 Supp. (1) SCC 600  16 (2013) 8 SCC 345

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 108.  A passage from John Westlake International Law: Part-I.  

Peace, Cambridge University Press, 1910 has been commended to  

us.  The said passage reads thus:-  

"On the internal side, that is the relation of the native  states to the British power, the Government of India  published the following notification in its official Gazette,  No. 1700 E, 21 August 1891:  

"The principles of international law have no bearing  upon the relations between the Government of India  as representing the queen-empress on the one  hand, and the native states under the suzerainty of  Her Majesty on the other. The paramount  supremacy of the former presupposes and implies  the subordination of the latter."  

 And again :-  

 "Thus India is a world of itself. Not only is the action of  all foreign states excluded from every part of it, but  those parts which are not included in the dominions of  the king-emperor are subject to a suzerainty,  paramountcy or supremacy possessed by him, to which  nothing parallel exists in the relations of states of  international law".  

109.  Inspiration has also been drawn from the book Rivers in  

International Law (1959) by F.J. Berber, which states:-  

"The Cauvery dispute between Mysore and Madras,  settled in 1925, was a dispute between two territories of  which one was a province of British India and the other  was a dependent princely state under British suzerainty.

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The dispute was not settled by the application of  international law but through an authoritative decision of  the sovereign power, or the British Crown. under its  general responsibility to interfere in every matter in  which according to its estimation the public interest was  threatened with injury. That means that it was a typical  case of the application of norms of municipal law. We can  therefore extract nothing from it for our inquiry. Only one  aspect in the dispute is significant for international law,  namely, the endeavour to protect the rights of Karikal, at  that time still a French possession. After representations  by the French Ambassador in London the Indian  Government in its Note of May 1, 1924, was able to state  that the existing water rights of Karikal would be  safeguarded. This recognition of the water rights of a  neighbouring colony is in harmony with Anglo- French  practice in connection with water rights in their African  colonies."   

110. We have also been referred to a passage from L. Oppenheim  

International Law (8th Edition) which is extracted below:-  

"91. The fact that the relation between the suzerain and  the vassal always depends upon the special case,  excludes the possibility of laying down a general rule as  to the international position of vassal States. The vassal  State has no relations with other States since the  suzerain absorbs these relations entirety; yet the vassal  remains nevertheless a half- sovereign State on account  of its internal independence. This was the position of the  Indian vassal States of Great Britain, which had no  international relations whatever either between  themselves or with foreign States. Yet instances can be  given which demonstrate that" vassal States can have  some subordinate international position."    

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111. Laying emphasis on the aforesaid passages, it is argued by Mr.  

Nariman that the agreements are ex facie unconscionable and  

smack of absolute unfairness and unreasonableness because the  

parties were not at arm‘s length and they never did possess equal  

bargaining power. In Central Inland Water Transport  

Corporation Limited (supra), the two-Judge Bench referred to  

Sections 16, 23 and 24 of the Contract Act and quoted some  

relevant passages from Chitty on Contracts (25th Edition, Vol.I).  We  

think it appropriate to extract the said passages:-  

―These ideas have to a large extent lost their appeal  today. ‗Freedom of contract‘, it has been said, ‗is a  reasonable social ideal only to the extent that equality of  bargaining power between contracting parties can be  assumed, and no injury is done to the economic interests  of the community at large‘. Freedom of contract is of little  value when one party has no alternative between  accepting a set of terms proposed by the other or doing  without the goods or services offered. Many contracts  entered into by public utility undertakings and others  take the form of a set of terms fixed in advance by one  party and not open to discussion by the other. These are  

called ‗contracts d’adhesion‘ by French lawyers. Traders  frequently contract, not on individually negotiated terms,  but on those contained in a standard form of contract  settled by a trade association. And the terms of an  employee‘s contract of employment may be determined by  agreement between his trade union and his employer, or  by a statutory scheme of employment. Such transactions  are nevertheless contracts notwithstanding that freedom  of contract is to a great extent lacking.

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 Where freedom of contract is absent, the disadvantages  to consumers or members of the public have to some  extent been offset by administrative procedures for  consultation, and by legislation. Many statutes introduce  terms into contracts which the parties are forbidden to  exclude, or declare that certain provisions in a contract  shall be void. And the courts have developed a number of  devices for refusing to implement exemption clauses  imposed by the economically stronger party on the  weaker, although they have not recognised in themselves  any general power (except by statute) to declare broadly  that an exemption clause will not be enforced unless it is  reasonable. Again, more recently, certain of the judges  appear to have recognised the possibility of relief from  contractual obligations on the ground of ‗inequality of  bargaining power‘.‖  

112.  Thereafter, the learned Judges referred to the meaning of  

Adhesion Contract and reproduced a passage from Reinstatement of  

the Law—Second as adopted and promulgated by the American Law  

Institute, Volume II:-  

―208. Unconscionable Contract or Term  If a contract or term thereof is unconscionable at the  time the contract is made a court may refuse to enforce  the contract, or may enforce the remainder of the  contract without the unconscionable term, or may so  limit the application of any unconscionable term as to  avoid any unconscionable result.‖  

 

In the Comments given under that section, it is stated at  page 107:  

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―Like the obligation of good faith and fair dealing (§ 205),  the policy against unconscionable contracts or terms  applies to a wide variety of types of conduct. The  determination that a contract or term is or is not  unconscionable is made in the light of its setting,  purpose and effect. Relevant factors include weaknesses  in the contracting process like those involved in more  specific rules as to contractual capacity, fraud and other  invalidating causes; the policy also overlaps with rules  which render particular bargains or terms unenforceable  

on grounds of public policy. Policing against  unconscionable contracts or terms has sometimes been  accomplished by adverse construction of language, by  manipulation of the rules of offer and acceptance or by  determinations that the clause is contrary to public policy  or to the dominant purpose of the contract. Uniform  Commercial Code § 2-302 Comment 1 .... A bargain is  not unconscionable merely because the parties to it are  unequal in bargaining position, nor even because the  inequality results in an allocation of risks to the weaker  

party. But gross inequality of bargaining power, together  with terms unreasonably favourable to the stronger party,  may confirm indications that the transaction involved  elements of deception or compulsion, or may show that  the weaker party had no meaningful choice, no real  alternative, or did not in fact assent or appear to assent  to the unfair terms.‖  

 113. After referring to many authors and decisions, the Court came  

to hold:-  

―As seen above, apart from judicial decisions, the United  States and the United Kingdom have statutorily  recognised, at least in certain areas of the law of  contracts, that there can be unreasonableness (or lack of  fairness, if one prefers that phrase) in a contract or a  clause in a contract where there is inequality of

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bargaining power between the parties although arising  out of circumstances not within their control or as a  result of situations not of their creation. Other legal  systems also permit judicial review of a contractual  transaction entered into in similar circumstances. For  example, Section 138(2) of the German Civil Code  provides that a transaction is void ―when a person‖  exploits ―the distressed situation, inexperience, lack of  judgmental ability, or grave weakness of will of another to  obtain the grant or promise of pecuniary advantages ...  which are obviously disproportionate to the performance  given in return‖. The position according to the French law  is very much the same.‖  

 114.  After so stating, the Court posed the question as to whether  

our Court should advance with time and, thereafter, referred to  

Article 14 of the Constitution and ruled:-  

―It will apply where the inequality is the result of  circumstances, whether of the creation of the parties or  not. It will apply to situations in which the weaker party  is in a position in which he can obtain goods or services  or means of livelihood only upon the terms imposed by  the stronger party or go without them. It will also apply  where a man has no choice, or rather no meaningful  choice, but to give his assent to a contract or to sign on  the dotted line in a prescribed or standard form or to  accept a set of rules as part of the contract, however  unfair, unreasonable and unconscionable a clause in  that contract or form or rules may be. This principle,  however, will not apply where the bargaining power of the  contracting parties is equal or almost equal. This  principle may not apply where both parties are  businessmen and the contract is a commercial  transaction. In today‘s complex world of giant  corporations with their vast infrastructural organizations

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and with the State through its instrumentalities and  agencies entering into almost every branch of industry  and commerce, there can be myriad situations which  result in unfair and unreasonable bargains between  parties possessing wholly disproportionate and unequal  bargaining power. These cases can neither be  enumerated nor fully illustrated. The court must judge  each case on its own facts and circumstances.‖  

 

And again:-  

―The types of contracts to which the principle formulated  by us above applies are not contracts which are tainted  with illegality but are contracts which contain terms  which are so unfair and unreasonable that they shock  the conscience of the court. They are opposed to public  policy and require to be adjudged void.‖  

 

115. We must note with profit that in the said case, the Court did  

not accept the stand of the appellant-Corporation that it was an  

ordinary contract entered by the employer with the employee but  

treated it as a contract with higher bargaining power by the  

Corporation with the workmen and that the conditions incorporated  

in the contract were wholly unconscionable and against the public  

interest, for it had the tendency to create a sense of insecurity in  

the minds of those to whom it applies and further it was against  

public good.

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116.  In Delhi Transport Corporation (supra), B.C. Ray, J. placed  

reliance on O.P. Bhandari (supra) which had followed the  

observations made in Central Inland Water Transport  

Corporation Limited (supra), and West Bengal State Electricity  

Board and others v. Desh Bandhu Ghosh and others17 and came  

to the conclusion that it was impossible to hold Regulation 9(b) of  

the Delhi Road Transport Authority (Conditions of Appointment and  

Service) Regulations, 1952 as constitutional.  Sawant, J. opined  

that the arbitrary rules are called Henry-VIII and the self asserting  

reliance on the theory of high authority was unacceptable.  The said  

decision has been pressed into service to highlight that the majority  

in the Constitution bench has accepted the principle laid down in  

Central Inland Water Transport Corporation Limited (supra)  

which pertains to the bargaining power and how a contract of  

employment becomes unconscionable.  

117. The aforesaid submission of Mr. Nariman has been  

vehemently opposed by Mr. Dwivedi and Mr. Naphade, learned  

senior counsel appearing for the State of Tamil Nadu, on two  

counts, namely, that the ―Standstill Agreement‖ executed by the  

                                                           17 AIR 1985 SC 722

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State of Mysore allowed the said agreement to continue and further,  

the agreement was not denounced as required under the proviso to  

Section 7(1)(c) of the 1947 Act.  Though we have referred to the  

―Standstill Agreement‖ and quoted a portion of it, yet at this  

juncture, it is pertinent to reproduce the said agreement along with  

the Schedule in entirety:-  

―Agreement between the State of Mysore and the  Dominion of India.  

 

WHEREAS it is to the benefit and advantage of the  dominion of India as well as of the Indian States that  existing agreements and administrative arrangements in  the matters of common concern, should continue for the  time being, between the Dominion of India or any part  thereof and the India States:-  

 

Now, therefore, it is agreed between the Mysore  State and the Dominion of India that:-  

 

1. (1) Until new agreements in this behalf are made,  all agreements and administrative arrangements as to  matters of common concern now existing between the  Crown and any Indian State shall, in so far as may be  appropriate, continue as between the Dominion of India  or, as the case may be, the part thereof, and the State.   

(2) In particular, and without derogation from the  generality of sub-clause (1) of this clause the matters  referred to above shall include the matters specified in  the Schedule to this Agreement.  

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2. Any dispute arising out of this Agreement, or out of the  agreements or arrangements hereby continued, shall  unless any provision is made therein for arbitration by an  authority other than the Governor General or Governor,  be settled by arbitration according, as far as may be, to  the procedure of the Indian Arbitration Act, 1899.  

 

3. Nothing in this agreement includes the exercise of any  paramountcy functions.  

 

SCHEDULE  

 

1. Air Communications  

2. Arms and equipment  

3. Control of commodities  

4. Currency and coinage  

5. Customs  

6. Indian States Forces  

7. External Affairs.  

8. Extradition  

9. Import and Export Control.  

10. Irrigation and Electric Power  

11. Motor Vehicles  

12. National Highways  

13. Opium  

14. Posts, Telegraphs and Telephones  

15. Railways  

16. Salt  

17. Central Excises, relief from double income-tax and  other arrangements relating to taxation.  

18. Wireless.‖  [Underlining is by us]  

 118. At this stage, we may also reproduce the proviso to Section  

7(1)(c) of the 1947 Act. It is as follows:-  

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―Provided that, notwithstanding anything in paragraph  (b) or paragraph (c) of this subsection, effect shall, as  nearly as may be, continue to be given to the provisions  of any such agreement as is therein referred to which  relate to customs, transit and communications, -posts  and telegraphs, or other like matters, until the provisions  in question are denounced by the Ruler of the Indian  State or person having authority in the tribal areas on  the one hand, or by the Dominion or Province or other  part thereof concerned on the other hand, or are  superseded by subsequent agreements.‖  

[Emphasis Supplied]  

 

119.  On a keen scrutiny of the evidence on record, there is no proof  

that the State of Mysore, at the relevant time, had denounced the  

agreement.  We have already discussed the doctrine of paramountcy  

and how the same is not applicable to these categories of  

agreements.  Mr. Nariman, learned senior counsel, would submit  

that automatic extinction of agreement because of evaporation of  

the doctrine of paramountcy is one thing and applicability of the  

said principle to treat the agreement as unconscionable is quite a  

distinct aspect.  As held earlier, the agreements did not  

automatically come to an end either after coming into force of the  

1947 Act or after coming into force of the Constitution because of  

the ―Standstill Agreement‖ and further owing to the fact that there  

had been no denouncement.  The bargaining power may not have

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existed in 1892 or 1924 but definitely, the said power to bargain or  

to choose came alive after the 1947 Act and, undoubtedly, after the  

Constitution came into being.  However, the State of Karnataka  

chose not to do so. If we allow ourselves to say so, it chose not to  

rise like a phoenix but, on the contrary, it maintained sphinx like  

silence at the relevant time.  Therefore, we are not persuaded to  

accept the submission that the agreements should be declared as  

void because of unconscionability.  

K. Status of the agreements after coming into force of the  States Reorganization Act, 1956  

120. Challenging the subsistence and continuance of the  

agreements, the next limb of submission of Mr. Nariman is that  

after the coming into force of the States Reorganization Act, 1956,  

(for short ―the Reorganization Act‘), the agreements became extinct  

for the newly formed State of Mysore was not bound by the 1924  

agreement since the Part B State of Mysore had not entered into  

any agreement with the State of Madras. It is contended by him  

that the Part B State of Mysore was not the new State of Mysore  

and on a careful reading of the various provisions of the  

Reorganisation Act, it is abundantly clear that only the rights,

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responsibilities, liabilities and obligations to be borne by the new  

State of Mysore find mention but the same has no reference to the  

rights and obligations under the 1924 agreement. Elaborating  

further, learned senior counsel would contend that the rights and  

obligations under the 1924 agreement may have devolved upon the  

Part B State of Mysore but that would not be considered as an  

agreement made in exercise of the executive power by the said Part  

B State of Mysore.    

121. Mr. Nariman has referred to Section 7 of the Reorganisation  

Act to highlight that by reason of the provisions contained under  

Section 7 of the said Act, the new State of Mysore cannot be treated  

as the successor State in respect of the obligations of the Ruler of  

the Indian State of Mysore under the Agreements of 1892 and 1924.  

To appreciate the said submission in proper perspective, we think it  

appropriate to reproduce the provisions. It reads as follows:-  

―Section 7. Formation of a new Mysore State.─(1) As  from the appointed day, there shall be formed a new State  to be known as the State of Mysore comprising the  following territories, namely:─  

(a) the territories of the existing State of Mysore;  

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(b) Belgaum district except Chandgad taluka and Bijapur,  Dharwar and Kanara districts, in the existing State of  Bombay;   

(c) Gulbarga district except Kodangal and Tandur taluks,  Raichur district except Alampur and Gadwal taluks, and  Bidar district except Ahmadpur, Nilanga and Udgir taluks   and the portions specified in clause (d) of sub- section (1)  of section 3, in the existing State of Hyderabad;   

(d) South Kanara district except Kasaragod taluk and  Amindivi Islands, and Kollegal taluk of Coimbatore  district, in the State of Madras; and  

(e) the territories of the existing State of Coorg;   

and thereupon the said territories shall cease to form part  of the said existing States of Mysore, Bombay, Hyderabad,  Madras and Coorg, respectively.  

(2) The territory comprised in the existing State of Coorg  shall form a separate district to be known as Coorg  district, and the said Kollegal taluk shall be included in,  and become part of, Mysore district, in the new State of  Mysore.‖    

122. Learned senior counsel has emphasized on the amalgamation  

of various areas from various States and exclusion of some areas  

and, on that foundation, a structured argument has been advanced  

that the successor State cannot be held liable.  Per contra, Mr.  

Dwivedi, learned senior counsel, would contend that the present  

case is not one where the territory of a Sovereign State got acceded  

to another Sovereign State.  It is a case for merger where a situation

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obtained that the State of Mysore had accepted the 1924 Agreement  

and it constitutionally remained in continuance a Part B State  

under Article 295(2) of the Constitution.  Formation of new States  

and alteration of areas, boundaries or names of the existing States  

under the parliamentary legislation did not alter the rights and  

liabilities and continued to remain in force and binding upon the  

successor State so long as they are not modified, changed or  

repudiated. He has drawn a distinction between a statutory  

acceptance and the recognition by the new State which can be  

explicit or implied. For the said purpose, he has pressed into service  

the decisions in M/s. Dalmia Dadri Cement Co. Ltd. v.  

Commissioner of Income Tax18; Amar Chand Butail v. Union of  

India and others19; and Firm Bansidhar Premsukhdas v. State  

of Rajasthan20.  Distinguishing the aforesaid issue, it is urged by  

him that the case at hand is not one where the Sovereign State has  

been acceded to or been annexed by another Sovereign State and,  

therefore, the principles in State of Punjab & Ors. v. Balbir  

                                                           18 AIR 1958 SC 816  19 AIR 1964 SC 1658  20 AIR 1967 SC 40

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Singh  & Ors.21, Ranjan Sinha v. Ajay Kumar Vishwakarma22,  

State of M.P. v. Bhopal Sugar Industries Ltd.23 are applicable.    

123. In Balbir Singh (supra), the erstwhile State of Punjab was  

reorganized by the Punjab Reorganisation Act, 1966 and on the  

appointed date, i.e., November 1, 1966, the former State of Punjab  

ceased to exist.  The successor States of Punjab, Haryana and  

Union Territory of Chandigarh and the transferred territory came  

into being.  The controversy related to the service conditions of the  

respondents.  The Court referred to the dictionary clause and  

Section 88 of the 1966 Act and came to hold thus:-  

―Law is defined in clause (g) of Section 2 of the Act to say:  

 

―‗law‘ includes any enactment, ordinance,  regulation, order, bye-law, rule, scheme, notification  or other instrument having, immediately before the  appointed day, the force of law in the whole or in  any part of the existing State of Punjab;‖.  

 

We agree with the High Court that the impugned orders  in question were not law within the meaning of Section  

2(g) and hence were, in terms, not saved by Section 88.  We think the High Court is right when it says:  

 

                                                           21 (1976) 3 SCC 242  22 2017 (7) SCLAE 234  23 1964 (6) SCR 846

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―Section 88 appears to have been introduced as a  matter of abundant caution. In my opinion, mere  splitting up of the territories of Punjab into four  successor States would not ipso facto result in the  abrogation or repeal of the laws which were  immediately in force before the appointed day in  those territories. There is nothing in the 1966 Act,  not even in Section 88, which expressly or by  necessary intendment repeals the laws which were  in force immediately before the appointed day in the  territories of the former Punjab. Those laws derived  their force de hors the 1966 Act. The first part of  Section 88 is merely clarificatory of any doubts  which might arise as a result of the reorganisation  of Punjab, while the latter part of this section is  merely an adaptative provision, to the effect, that  the territorial references in any such law to the  State of Punjab shall continue to mean the  territories within that State immediately before the  appointed day. Thus, read as a whole Section 88  merely dispels doubts as to the continuity of the  laws which were in force before the appointed day in  the former State of Punjab, until the competent  legislature or authority of the successor States  effects any change in those laws‖.‖  

 

And again:-  

 

―In our judgment when there is no change of  sovereignty and it is merely an adjustment of  territories by the reorganization of a particular  State, the administrative orders made by the  Government of the erstwhile State continue to be in  force and effective and binding on the successor  States until and unless they are modified, changed  or repudiated by the Governments of the successor  States. No other view is possible to be taken. The  other view will merely bring about chaos in the

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administration of the new States. We find no  principle in support of the stand that administrative  orders made by the Government of the erstwhile  State automatically lapsed and were rendered  ineffective on the coming into existence of the new  successor States.‖    

124. In Ranjan Sinha (supra), the controversy revolved around the  

applicability of laws framed by the undivided State of Bihar with the  

newly bifurcated State that have come into existence by virtue of  

the Bihar Reorganisation Act, 2000 (for short, ―the 2000 Act‖).  The  

controversy also related to the service conditions.  The issue arose  

before the High Court of Jharkhand as to which law was in force  

and eventually, on scrutiny of the Act, the High Court came to hold  

that:-  

―6. A division bench of the High Court of Jharkhand on  elaborate consideration of applicable provisions of the Act  and BROA came to the conclusion that Education  Regulations, applicable to the erstwhile Bihar, are law for  the new State of Jharkhand in terms of Sections 84 and  85 of the BROA and therefore unless a person is qualified  as per Education Regulations, cannot get himself  registered. It was observed as under-  

‗What is contended on behalf of the Petitioners is  that the Pharmacy Act was extended to the State of  Bihar had notified and adopted the Education  Regulations issued under Section 10 of the Act  which was in Part II of the Act, that both the Act  and the Education Regulations hence constitute law

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for the purpose of the State of Jharkhand carved  out of the modification of either the Education  Regulations or the Pharmacy Act by the competent  Legislature, namely, the Parliament, that no such  attempt was also made by the State of Legislature  and in the Jharkhand and unless a person was  qualified in terms of the Education Regulations, he  could not get his name entered in the Register. We  find considerable force in this submission. It is true  that the Jharkhand was carved out with effect from  15.11.2000. By virtue of Section 84 of the Bihar  Reorganization Act, the Pharmacy Act and the  Education Regulations applied. In the absence of  any modification, alternation or repeal of either the  Act or the Education Regulations by the competent  Legislature, it could not be postulated that the law  had ceased to be in force merely on the formation of  the State of Jharkhand. Section 84 of the Bihar  Reorganization Act, in our view, is clear. Moreover,  it is not possible for the Court to contemplate a law  less State as it were. If the argument of the  Respondents were to be accepted, the position  would be that there was no law relating to  Pharmacy or regarding qualifications for getting  recognition as a Pharmacist in the State of  Jharkhand and it is yet to be made. In other words,  until the same is made there will be a vacuum.  Such an argument, unless compelled, can not be  acceptable. The territories now forming the State of  Jharkhand originally formed part of the State of  Bihar, were governed by the Act and the Education  regulations promulgated and adopted in terms of  Section 85 of the Bihar Reorganization Act. This  scheme of the Reorganization Act is consistent with  the general principle that a law once made  applicable to a territory will continue to apply to  that territory unless its application is abrogated or  dispensed with by the competent Legislature or  authority or its replacement by any other law

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enacted in that behalf. Therefore, it is clear that  Education Regulations promulgated under Section  10 and adopted in terms of Section 11 of the Act to  the territory in question, continues to apply. There  is also the stand adopted by the Indian pharmacy  Council in its additional counter affidavit. We find  the said stand sustainable in law‘.‖   

125. Before this Court, it was contended that every State has to  

have a First Register of the pharmacists on its own as mandated in  

Sections 30 and 31 of the Act which is an express provision and if  

the interpretation given by the Court is accepted, the said provision  

will become redundant.  Adverting to the provisions of the Act and  

the earlier Regulations, a two-Judge Bench held:-  

―25. The Article 3 of the Constitution inter alia, empowers  the Parliament by law to form a new State by separation  of territory from any State or by uniting two or more  States. Article 4 is to the effect that the law made by the  Parliament with reference to Article 3 may contain  supplemental, consequential and incidental provisions.  When a new State is formed by law made by Parliament,  whether the laws made by the existing State out of which  a new State is formed continue to apply to the territories  included in the new State? When the existing State  territory is reorganized by the Parliament there is no  change in Sovereignty. It is only adjustment of territories  by transferring some territories in the existing State to a  newly formed State. Therefore, all the laws which were  applicable to the territories of the re-organized State  would continue to apply to the territories transferred to  the new State until the latter either adapts or, subject to

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its competency amends or repeals the existing and  applicable laws.‖  

 126. Be it noted, the Court placed reliance on Balbir Singh (supra)  

and Sher Singh and others v. Financial Commissioner of  

Planning, Punjab and others24 and proceeded to rule:-  

―35. When a State as forming part of Indian nation is re- organized, in law in so far as application of laws is  concerned, the following three things would happen  namely; (i) the existing State (Parent State) which made  various laws, would continue to exist; (ii) the new State  so formed by transferring some territories will be deemed  to be the territories of the parent State for the purpose of  applicability of the laws; and (iii) those laws made by  parent State shall continue to apply to new State until  they are modified or amended by a competent legislature  in relation to new State and the ‗law‘ as defined in the  definition Clause would be the law which was in force in  the existing State which would be enforceable in the  newly formed State.  

36. At the cost of repetition, we may mention that  under Article 3 of the Constitution the Parliament can  alter, amend, amalgamate, form new States, diminish or  increase area of a State. The principle of ‗clean slate‘ as  applicable in international law is not applicable when  reorganization takes place under Article 3 of the  Constitution. 17 The reorganized States do not usually  start as tabula rasa, rather they are successors of a pre- existing erstwhile States. Under the BROA, the  Jharkhand was carved out of the Bihar and the two  separate states came into existence on 15.11.2000. If the  laws in force were to lapse on the day the division was  effected, a chaotic situation would have emerged  

                                                           24 (1987) 2 SCC 439

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inasmuch as the newly created State would be rendered  a State without laws. To avoid such situation, provisions  like Sections 84 and 85 of BROA have been enacted to  maintain continuity, and at the same time authorizing  the States to make such modifications and adaptations  as are considered necessary by mere issuance of orders  within two years, and thereafter by legislation.  

37. As defined earlier ‗law‘ includes ‗other instruments  having the force of law‘. In view of use of the word  ‗includes‘, the definition of ‗law‘ under Section 2(f) shall  be interpreted exhaustively. In view of the above  discussion, we hold that the First Register prepared by  the Bihar has the force of law Supra, at 13 under Section  2(f) of the BROA.‖    

127. In the present case, the two provisions, namely, Sections 107  

and 119 of the Reorganization Act of 1956 unequivocally spell out  

the continuance of the assets and liabilities.  That apart, the new  

State of Mysore after 1956 recognised and enforced the agreement  

and, in any case, did not repudiate it.  And in all possibilities, the  

State could not have done it as it related to inter-State waters and  

the Parliament in the Reorganisation Act did not make any law in  

that regard.  

128. It may be noted here that the Tribunal has referred to Section  

2(m) defining ―Principal Successors State‖, Section 2(o) defining  

―successor State‖ and Section 5 to conclude that the State of Kerala  

had become the principal successor State to the erstwhile State of

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Travancore-Cochin excluding the territories transferred to the State  

of Madras and also a successor State in respect of the territories  

which were transferred from Madras and, therefore, the agreements  

would be binding on it, as the Cauvery basin including the portion  

of rivers Kabini and Bhawani were in the Malabar District, which  

had been transferred to it. It also referred to Section 87 of the  

Reorganisation Act, whereunder any contract made by an existing  

State before the appointed day in the exercise of its executive power  

was deemed to have been made in the exercise of such power of the  

successor State or States or the principal successor State, as the  

case may be. With reference thereto, the Tribunal analyzed that the  

Agreements of 1892 and 1924 entered into by Madras with the then  

State of Mysore were, therefore, deemed to have been entered into  

on behalf of the areas which were within the territories of the State  

of Madras including the District of Malabar and, consequently, the  

rights and liabilities which had accrued to Madras as an existing  

State with regard thereto would be the rights and liabilities of the  

successor State, i.e., the State of Kerala. The Tribunal also  

concluded that the State of Kerala would be deemed to be bound by

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the terms and conditions of the two Agreements so far as the  

sharing of the waters of river Cauvery was concerned.  

129. The finding of the Tribunal is seriously assailed on behalf of  

the State of Karnataka on the ground that in a State where different  

boundaries came into existence, the agreements could not be  

allowed to remain in continuance.  Sections 2(e), 2(j), 2(m) and 2(o),  

which are relevant in the present context, read thus:-  

―Section 2(e) "corresponding State" means, in relation to  the new State of Bombay, Madhya Pradesh, Mysore,  Punjab or Rajasthan, the existing State with the same  name, and in relation to the new State of Kerala, the  

existing State of Travancore-Cochin;   

(j) "notified order" means an order published in the  

Official Gazette;  

(m) "principal successor State" means—  

(i) in relation to the existing State of Bombay, Madhya  Pradesh, Madras or Rajasthan, the State with the same  

name; and   

(ii) in relation to the existing States of Hyderabad,  Madhya Bharat and Travancore Cochin, the States of  Andhra Pradesh, Madhya Pradesh and Kerala,  

respectively;   

(o) "successor State", in relation to an existing State,  means any State to which the whole or any part of the  territories of that existing State is transferred by the  provisions of Part II, and includes in relation to the  existing State of Madras, also that State as territorially  altered by the said provisions and the Union;‖    

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130. Section 108 which has been relied upon by Mr. Dwivedi,  

learned senior counsel for the State of Tami Nadu, is as follows:-  

―Section 108. Continuance of agreements and  arrangements relating to certain irrigation, power or  multi- purpose projects.─(1) Any agreement or  arrangement entered into between the Central  Government and one or more existing States or between  two or more existing States relating to─   

 

(a) the administration, maintenance and operation of  any project executed before the appointed day, or   

 

  (b) the distribution of benefits, such as, the right to  receive and utilise water or electric power, to be derived  as a result of the execution of such project,   

 

which was subsisting immediately before the appointed  day shall continue in force, subject to such adaptations  and modifications, if any (being of a character not  affecting the general operation of the agreement or  arrangement) as may be agreed upon between the  Central Government and the successor State concerned  or between the successor States concerned, as the case  may be, by the Ist day of November, 1957 , or, if no  agreement is reached by the said date, as may be made  therein by order of the Central Government.   

 

(2) Where a project concerning one or more of the existing  States affected by the provisions of Part II has been taken  in hand, but not completed, or has been accepted by the  Government of India for inclusion in the Second Five  Year Plan before the appointed day, neither the scope of  the project nor the provisions relating to its  administration, maintenance or operation or to the

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distribution of benefits to be derived from it shall be  varied, ─  

 

(a) in the case where a single successor State is  concerned with the project after the appointed day,  except with the previous approval of the Central  Government, and   

 

  (b) in the case where two or more successor States are  concerned with the project after that day, except by  agreement between those successor States, or if no  agreement is reached, except in such manner as the  Central Government may by order direct,   

 

and the Central Government may from time to time give  such directions as may appear to it to be necessary for  the due completion of the project and for its  administration, maintenance and operation thereafter.   

 

(3) In this section, the expression" project" means a  project for the promotion of irrigation, water supply or  drainage or for the development of electric power or for  the regulation or development of any inter- State river or  river valley.‖  

 

 Section 119 of the Reorganisation Act, 1956 reads as under:-  

―Section 119. Territorial extent of laws.―The  provisions of Part II shall not be deemed to have effected  any change in the territories to which any law in force  immediately before the appointed day extends or applies,  and territorial references in any such law to an existing  State shall, until otherwise provided by a competent  Legislature or other competent authority, be construed as  meaning the territories within that State immediately  before the appointed day.‖  

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131.  Impressing thereon, it is submitted by Mr. Dwivedi that the  

aforesaid provisions by operation of law made the 1924 Agreement  

recognisable and implementable.  According to him, the rights and  

liabilities under the 1924 Agreement are constitutionally continued  

with and vest in Mysore as Part B State under Article 295(2) of the  

Constitution. Article 295 reads as under:-  

―Article 295. Succession to property, assets, rights,  

liabilities and obligations in other cases  

(1) As from the commencement of this Constitution  

(a) all property and assets which immediately before  such commencement were vested in any Indian State  corresponding to a State specified in Part B of the First  Schedule shall vest in the Union, if the purposes for  which such property and assets were held immediately  before such commencement will thereafter be purposes  of the Union relating to any of the matters enumerated  in the Union List, and  

(b) all rights, liabilities and obligations of the  Government of any Indian State corresponding to a  State specified in Part B of the First Schedule, whether  arising out of any contract or otherwise, shall be the  rights, liabilities and obligations of the Government of  India, if the purposes for which such rights were  acquired or liabilities or obligations were incurred  before such commencement will thereafter be purposes  of the Government of commencement will thereafter be  purposes of the Government of India relating to any of  

the matters enumerated in the Union List,  

subject to any agreement entered into in that behalf by the  Government of India with the Government of that State

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Act by the newly formed States to controvert the agreement. As the  

facts clearly depict, it continued.  Mr. Dwivedi, in this regard, would  

contend that the State of Karnataka had waived its right to question  

the legal tenability of the agreement and keeping in view the  

concept of waiver, the Tribunal has also adverted to the same and  

accepted.  We do not think that this aspect needs to be reverted to,  

for it remains a fact that both the agreements with the Regulations  

remained in force despite coming into effect of the                    

Reorganisation Act, 1956.  

L.  Issue relating to expiry of the agreements  

134. It is submitted by Mr. Nariman, learned senior counsel, that  

the 1924 Agreement was not an agreement requiring a positive or  

affirmative act by either of the states to go ahead with revocation  

but, on the contrary, to arrive at a common consensus for its  

continuance and if the clauses of the Agreement are studiedly  

scrutinized or appreciated as an instrument as a whole, its life span  

is 50 years and the same could not have continued, by any stretch  

of imagination, after the expiry of the stipulated period.  He would  

argue that the Constitution Bench in the Presidential Reference has

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twice stated that both the agreements have expired and no  

application for review or modification was filed by the State of Tamil  

Nadu and rightly so, as anyone connected with the agreement was  

well aware that the agreements stood expired.  The said submission  

of Mr. Nariman is seriously resisted by Mr. Naphade and Mr.  

Dwivedi, learned senior counsel, on the foundation of the  

Presidential Reference answered in In Re: Presidential Reference  

(Cauvery Water Disputes Tribunal) (supra). It is further urged  

that the issue did not arise as regards the expiry of the agreements  

and the Court has not addressed to it and, therefore, it cannot be  

regarded or treated as a decision on the said issue.  Learned senior  

counsel would contend that merely because the expression has  

been used that the agreements had expired, that should not be  

given the status of the ratio of the judgment.    

135. The second plank of the argument of Mr. Nariman in this  

regard is that even assuming that the decision of the Constitution  

Bench is not treated as binding for the purpose of expiration of the  

term of the Agreement, the clauses in the Agreement explicitly show  

that the 1924 Agreement comes to an end after the expiry of 50  

years.  For the said purpose, emphasis is laid on the language

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employed in Clause 10(xi) of the Agreement. We have already  

reproduced the agreement and, therefore, at this stage, it is apt to  

reflect on how the Tribunal has understood the Agreement.  On a  

reading of the award, it is noticeable that the Tribunal has analyzed  

in detail the various clauses of the said Agreement with the mutual  

rights and obligations as specified therein and focused, in  

particular, on clause 10 (xi) which contemplated a process of  

reconsideration on the expiry of 50 years from the date of its  

execution.   

136. The Tribunal, in the context of the rival contentions on the  

subsistence or otherwise of the Agreement on the expiry of 50 years  

from its execution, minutely noted that undisputedly there had  

been no re-consideration by the two States on the question of  

modification or addition in respect of the different terms and  

conditions as mentioned therein, after the said period.  It referred  

as well to the plea of the State of Tamil Nadu that as per clause  

10(xi), the reconsideration, if any, was limited only to the  

stipulations in clauses 10(iv) to 10(viii) and not qua clause 10(ii)  

which enjoined the Mysore Government to regulate the discharge to  

and from the Krishna Raja Sagara reservoir strictly in accordance

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with the Rules of Regulation set for in Annexure I thereto. The  

Tribunal, however, on a scrutiny of the relevant clauses and on a  

juxtaposition thereof, negated the said plea and held that clause  

10(ii) was inter-linked with clauses 10(iv) to clause 10(viii) and  

could not be dissociated from each other.  In arriving at this  

determination, the Tribunal noted the areas of irrigation permitted  

to be undertaken by the two Governments with the liberty to extend  

the same subject to the ceiling as mentioned and laid emphasis on  

the enjoinments contained in clause 10(vii) in particular and held  

that if after 50 years in terms of clause 10(xi), the limitation and  

arrangements specified in clause 10(iv) to clause 10(viii) were to be  

considered, then the limitations prescribed by the rules of  

regulation for Krishna Raja Sagara reservoir forming Annexure 1 of  

the Agreement and alluded to in clause 10(vii) could not be  

excluded from the purview of such reconsideration.  The Tribunal  

thought that this is more so as in terms of clause 10(vii), the  

Mysore Government had agreed that extension of irrigation in its  

territories as specified in clause (iv) would be carried out  only by  

means of reservoirs constructed on the River Cauvery and in its  

tributaries mentioned in Schedule A of the 1892 Agreement; such

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reservoirs were to be of an effective capacity of  45,000 million cubic  

ft. in aggregate; impounding therein was to be so regulated as not to  

make any material diminution in supply recorded by the gauge  

accepted in the Rules of Regulation for the Krishna Raja Sagara  

reservoir forming Annexure I to the Agreement and the rules for  

working such reservoirs were to be so framed as to reduce any loss  

during the impounding period within 5%, by adoption of suitable  

proportion factors, impounding formula or such other means as  

was to be settled. The Tribunal referred to the notes of arguments  

produced on behalf of the State of Tamil Nadu before it which  

indicated that the average inflow into Mettur for 38 years from 1934  

- 1935 was 377.1 TMC serviced by three sources with the following  

break ups:  

―(i)  From KRS, as per Rules of Regulation of KRS  

Annexure 1 of 1924 Agreement    -  159.780 TMC  

(ii) From Kabini         - 112.615 TMC   

(iii) Contribution for intermediate  catchment below  KRS and below  Hullahalli Anicut in Kabini  including   25 TMC from catchment  area above Mettur in Tamil  

Nadu         -104.746 TMC  

    Total – 377.141 TMC‖  

137. It observed that if reconsideration was to be limited only to the

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arrangement as set out in clauses 10(iv) to (viii), then the logical  

consequence would be that in the event of any modification, it  

would not be possible for the State of Karnataka to comply with the  

requirement of clause 10(ii) read with Rules 7 and 10 of the Rules of  

Regulation only on the basis of discharge from Krishna Raja Sagara  

reservoir. The Tribunal, thus, held that whenever a dispute was  

raised, it was to be examined in the light of the conditions  

prescribed not only in clauses 10 (iv) to 10 (viii) but also in the light  

of the obligation and mandate provided on the part of the State of  

Mysore/Karnataka to follow the Rules of Regulation for Krishna  

Raja Sagara reservoir as contained in clause 10(ii).  

138. On the plea that the 1924 Agreement, in the absence of  

reconsideration, as envisaged in clause 10(xi), had expired, an  

eventuality noticed by this Court in In Re: Presidential Reference  

(Cauvery Water Disputes Tribunal) (supra) wherein the validity of  

the Karnataka Cauvery Basin Irrigation Protection Ordinance 1991  

had been laid for scrutiny in a reference under Article 143 of the  

Constitution, the Tribunal apart from observing that the question of  

subsistence or otherwise of the Agreement was not an issue before  

this Court in the said reference, also marked that in the complaint

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before it under adjudication, the principal grievance of  the State of  

Tamil Nadu was contravention and violation of the terms thereof  

which, according to it, remained in force even after the expiry of 50  

years from the execution thereof.  It also referred, the initiatives and  

endeavours of the two States in this regard with the intervention of  

the Union Minister for Irrigation and Power and the participation of  

the Chief Ministers of Tamil Nadu, Mysore and Kerala along with  

others for an amicable resolution of the lingering differences which,  

inter alia, contemplated a fact finding Committee of Engineers,  

agricultural experts, retired Judges, etc. to collect data pertaining to  

Cauvery waters, its utilization and irrigation practices and to  

examine the adequacy of the supplies or excessive use of water for  

irrigation purposes to be placed for further discussions to arrive at  

an agreed allocation of waters for the respective States. The  

Tribunal underlined that nowhere in the discussions, it had been  

the stand on behalf of the State of Mysore that after 50 years of the  

execution of the Agreement, it would expire and as such there  

would be no question of reviewing the terms thereof.  

139. The plea of the State of Mysore that the proviso to clause  

10(xiv) per se spelt the automatic termination of the whole of the

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Agreement after the expiry of 50 years, was negatived in view of the  

interplay of clauses 10 (xiv) and (xi).  

140. The Tribunal, as we find, has accepted the plea and stand of  

the State of Tamil Nadu that the 1924 Agreement did not expire in  

1974.  

141. It is necessary to reflect on the finding of the Tribunal on this  

score. The Tribunal noticed the rival orientations of the two States  

with regard to the status of the Agreement on the expiry of 50 years  

from the date of its execution.  It recorded the stand of the State of  

Karnataka that the agreement expired after the expiry of the period  

of 50 years from the date of its execution so much so that none of  

the clauses therein were enforceable in respect of discharges to be  

made from Krishna Raja Sagara and other reservoirs of the  

tributaries of Cauvery which were under construction in Karnataka.   

It took note of the contrary plea of Tamil Nadu that the agreement  

was permanent in nature and that all the terms therein were  

binding on Mysore, that is on the State of Karnataka in respect of  

the operation of Krishna Raja Sagara and other reservoirs  

constructed on the tributaries of river Cauvery.  The Tribunal  

recorded the plea of the State of Karnataka that not only the

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Agreement of 1924 expired in the year 1974 but also the terms of  

the Agreement dated 1892 as well as of 1924 were arbitrary in  

nature and inequitable between the State of Madras which was then  

a Presidency State and as such part of the British Territory and the  

State of Mysore which was then under the Ruler.  Tracing the  

history of the two agreements and that of 1924 in particular, the  

Tribunal was of the view that the latter agreement was entered into  

only after the terms thereof had been fully examined by the two  

States with special attention to the aspect as to whether the new  

irrigation reservoir was likely to diminish the flow of river Cauvery  

to the territory of Madras State in any manner. In the context of the  

cavil of the State of Karnataka that the then State of Mysore had to  

enter into both the agreements under some compulsions and that  

the stringent stipulations contained therein, amongst others,  

defining the limits under which no irrigation works were to be  

constructed by Mysore without the previous consent of Madras and  

that the rigorous restrictions in respect of impounding of water of  

Krishna Raja Sagara as well as other reservoirs to be constructed  

on the tributaries of river Cauvery with the rider of maintaining a  

minimum flow of Cauvery at the Upper Anicut so as to maintain a

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height of water level ranging between 3 ft. to 7 ½ ft. during January  

to June did spell great hardship, the Tribunal delved into the time  

phase chapter pertaining to the Treaty of 1799 entered into between  

the then East India Company and the Maharaja of Mysore  

whereupon the possession of the Mysore State was handed over to  

the then Maharaja. It marked, inter alia, the undertaking of the  

then Maharaja of Mysore that he would abstain from any  

interference in the affairs of any state in alliance with the English  

Company Bahadur and would not enter into any communication or  

correspondence with any foreign State without the previous  

knowledge or sanction of any English Company Bahadur. The  

Tribunal noted as well the similar restrictions in the Instrument of  

Transfer of 1881, apart from preserving in the Governor General in  

Council, several powers including the one to resume possession of  

the said territories and to assume direct administration thereof.  

142. While noticing the plea of Karnataka that after the Treaty of   

1799, with the advent of East India Company as well, the  

administration of Mysore had been taken away by it, and the  

possession of the State was eventually handed over to the then  

Maharaja on 25.03.1881, and that thus the British Crown was

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apparently exercising its paramount power over the ruling State of  

Mysore for which, as a feudatory State, it was really under a  

compulsion to subject itself to the constraints prescribed under the  

Agreement, the Tribunal observed that International Agreements as  

well as Inter-state Agreements cannot be examined at a later stage  

on the touchstone of whether the terms were just and proper,  

keeping the interest of both the Nations or the States at the time of  

execution thereof. While acknowledging that sometimes,  

compulsions existing at the time of execution of the Agreements  

may be factors for adopting the  spirit of  give and take on the part  

of one Nation or the State, it concluded qua the Agreements of 1892  

and 1924 that those could not be challenged as being done after a  

lapse of more than 100 years so far as the Agreement of the year  

1892 is concerned and 80 years qua the Agreement of 1924 by the  

State of Karnataka being the successor of the interest of the State of  

Mysore. The Tribunal recorded that this was more so as the State of  

Mysore/Karnataka had complied with the terms of the Agreements  

scrupulously and religiously up to 1974 and the dispute surfaced  

only after the expiry of the period of 50 years as contemplated in  

Clause 10(xi) of the Agreement of 1924.  It remarked as well that on

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the basis of the Agreement of 1924, the State of Mysore/Karnataka  

not only constructed the Krishna Raja Sagara Project but also other  

reservoirs on the tributaries of Cauvery within its territories for a  

total capacity of 45,000 million cubic ft. (45 TMC) and thereby  

derived the benefit of construction of those reservoirs on the river  

Cauvery and its tributaries and, thus, it cannot be allowed to  

repudiate the agreements on the principle of ―qui approbat non  

reprobat” (one who approbates cannot reprobate). The Tribunal  

construed that though an agreement can be challenged in terms of  

Section 19A of the Indian Contract Act, yet the party concerned had  

to satisfy the Court at the appropriate stage that its consent was  

obtained by coercion, fraud, misrepresentation or undue influence  

and that noticeably, during the period of more than 50 years since  

18.02.1924, after which according to the State of Karnataka, the  

said Agreement had come to an end, it did never allege before any  

court of law that the said Agreement was either voidable or that it  

was not bound by it for any of the infirmities as envisaged in  

Sections 19 and 19A of the Indian Contract Act. It recalled in  

reinforcement of this view the backdrop of the Agreement which  

evinced that the competent authorities on behalf of both the States,

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after proper application of mind and discussion, had endorsed and  

executed both these documents and, thus, these could not be  

ignored and discarded being not void in the eye of law.  

143. The aforesaid finding of the Tribunal is seriously found fault  

with by Mr. Nariman on the ground that the Tribunal should have  

proceeded on the basis of the language employed in the instrument.   

Regard being had to the said submission, we think it appropriate to  

reproduce Clause 10(xi), though it has already been extracted  

hereinbefore:-  

―10 (xi) The Mysore Government and the Madras  Government further agree that the limitations and  arrangements embodied in clauses (iv) to (viii) supra shall  at the expiry of fifty years from the date of the execution  of these presents, be open to reconsideration in the light  of the experience gained and of an examination of the  possibilities of the further extension of irrigation within  the territories of the respective Governments and to such  modifications and additions as may be mutually agreed  upon as the result of such reconsideration.‖  

[Underlining is ours]  

 144. The said clause requires studied scrutiny.  It stipulates that  

both the States agreed that the limitations and arrangements  

embodied in Clauses (iv) to (viii) shall, at the expiry of 50 years from  

the date of execution, be open to reconsideration in the light of the

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experience gained and upon examination of the possibilities of  

further extension of irrigation within the territories of the respective  

States be subject to such modification and additions as may be  

mutually agreed upon as the result of such reconsideration. The  

submission of  Mr. Nariman and Mr. Katarki appearing for the State  

of Karnataka is that the postulates in the clause have to be read as  

a whole and not in a truncated sense. According to them, the  

stipulations in Clauses (iv) to (viii) would be open for  

reconsideration taking into stock certain facts and circumstances  

and only thereafter, the modification and additions can be mutually  

agreed to.  Emphasis is laid on the word ‗reconsideration‘.  It is also  

argued by them that the stipulation in Clause (xi) cannot be  

restricted to Clauses (iv) to (viii) as those clauses constitute the  

spine of the Agreement.  It is their argument that the other clauses  

in the Agreement are so interdependent with the mentioned clauses  

that the others cannot be excluded or eschewed.  The intention of  

the parties is quite clear that the experience has to be seen in 50  

years and thereafter, the whole thing is to be called for  

reconsideration and reconsideration cannot be unilateral or, for  

that matter, automatic.  

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145. Controverting the same, it is urged by Mr. Naphade and       

Mr. Dwivedi, learned senior counsel for the State of Tamil Nadu,  

that the clause applies in part essentially what has been mentioned  

therein and cannot cover the whole agreement.  They emphasized  

on the words that the life of the Agreement is not limited to 50 years  

but only meant for reconsideration for the purpose of reexamination  

and that does not put an end to the Agreement.  

146. Having perused the clause in entirety and considering the  

words, namely, ‗reconsideration‘, mutually agreed upon‘ and ‗be  

open to‘, it is clear that certain clauses in the Agreement had a  

restricted life span.  

147. We are inclined to think so inasmuch as the relevant clauses  

which are open to reconsideration are absolutely essential parts of  

the contract and it is extremely difficult to place appropriate  

construction on the contract without them. The clauses in the  

contract do not indicate permanency but, on the contrary, indicate  

fixed term and that is how we intend to construe the same. The  

continuance of contract, as we find, was further a subjective  

consideration and merely agreed upon and, therefore, to hold that it

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continued solely because of the experience gathered would not be  

appropriate and it would be contrary to the concept of  

understanding the clauses in a contract to give effect to its  

continuance.  The continuance after 50 years was dependent on  

certain aspects and, therefore, we have no hesitation in holding that  

the agreement expired after 50 years.  The submission on behalf of  

the State of Tamil Nadu is that the obligations of the contract  

continued but, in this context, it is worth noting that the parties to  

the agreement had entered into correspondence with the Central  

Government agitating their grievances and they met at the various  

levels to discuss and to arrive at an acceptable arrangement.  That  

not having been accepted, the complaint was lodged.  Taking into  

consideration the entire conspectus of facts and circumstances, we  

hold that the agreement expired after 50 years in the year 1974.    

M.  Did the complaint not require any adjudication?  

148. It is submitted by Mr. Nariman that the manner in which the  

complaint had been lodged and a request had been made for  

referring the dispute that had arisen between the States of  

Karnataka and Tamil Nadu was not statutorily entertainable.  

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According to him, the foundation of the complaint is the 1892 and  

1924 Agreements and once they are treated to have expired, in the  

absence of any other aspect being stated in the complaint, it does  

not call for an adjudication by the Tribunal despite the matter  

having been referred to the Tribunal for adjudication.  To bolster  

the said stand, he has relied upon the language employed in  

Section 3 of the 1956 Act.  Section 3 of the 1956 Act reads as  

follows:-  

―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   

(b) the failure of the other State or any authority therein  to exercise any of their powers with respect to the use,  distribution or control of such waters; or   

(c) the failure of the other State to implement the terms of  any agreement relating to the use, distribution or control  of such waters,   the State Government may, in such form and manner as  may be prescribed, request the Central Government to  refer the water dispute to a Tribunal for adjudication.‖

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 149. Relying on the said provision, it is urged by Mr. Nariman that  

there is no assertion with regard to either the State of Tamil Nadu  

or its inhabitants being prejudicially affected in any other manner  

except the agreement and, then, the conditions precedent as  

postulated in clauses (a), (b) and (c) of Section 3 are not met with.   

He has referred to issues 8, 10, 40 and 43 by the Tribunal on  

prejudicial affectation and stated that the Tribunal has not recorded  

any finding that the State of Tamil Nadu has been prejudicially  

affected within the sphere of Section 3.  On the contrary, it has held  

that the issue regarding prescriptive right of Madras has become  

academic and the injury caused to each State at one stage or the  

other by the conduct of the other State has become a matter of  

history and it is not easy to assess any injury in an irrigation  

dispute.  Learned senior counsel would further submit that the  

State of Tamil Nadu did not plead for a claim to any right which is  

conferred on it by the two agreements either in its complaint or on  

the statement of case before the Tribunal.  The complaint deserves  

to be dismissed in the absence of proven injury.  Mr. Naphade and  

Mr. Dwivedi, learned senior counsel being assisted by Mr. G.

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Umapathy, learned counsel, in their turn, would contend with  

vehemence that such a contention at this stage is absolutely  

specious and should not engage the attention of this Court even for  

a moment.  They would submit that the series of meetings and the  

correspondence that had commenced in the beginning of the 70s of  

the last century would speak eloquently about the inhabitants  

being prejudicially affected and further the various issues raised  

clearly exposit the grievances of the inhabitants of the State of  

Tamil Nadu.  Additionally, it is contended by them that even if a  

finding is returned that the agreements have expired, rights had  

been created under the agreements and till they remain in force and  

also thereafter till the date of reference and more so when such a  

plea was not raised when reference was made to this Court under  

Article 143 of the Constitution, the said plea should be negatived.   

150. The aforesaid submission advanced by the State of Karnataka  

should not detain us for long.  On a perusal of the complaint, it  

does not contain the words ―prejudicially affected‘ but the  

antecedents of the complaint, the view of the Central Government  

while referring water dispute and the expression of opinion of this  

Court In Re: Presidential Reference (Cauvery Water Disputes

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Tribunal)  (supra). In the backdrop of the language of the 1956 Act,  

the expiration by the efflux of time and the role of this Court, we are  

not inclined to entertain such a plea. We must say without any  

hesitation that it may, in the first blush, have the potentiality to  

invite the intellectual interaction but the same fails to gain  

significance when one perceives the controversy from a broader  

perspective and the various orders passed from time to time by the  

Tribunal and by this Court.  Therefore, the matter deserves to be  

adjudicated on merits.  

N. The approach adopted by the Tribunal post 1974 and  

correctness of the same  

151. On a perusal of the award, it appears that the Tribunal, after  

coming to hold that the 1974 agreement is valid which we have not  

accepted, noted the submissions of the State of Karnataka, Tamil  

Nadu and Kerala and Union Territory of Puducherry. The State of  

Karnataka, on 10.07.2002, has made the following submissions  

before the Tribunal which is to the following effect:-  

―60. The State of Karnataka in its Note KAR 3, page 10,  filed on 10.07.2002, has taken the stand that ―any future  determination post-1974 would have to be made on the  following basis:-  

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(a) how much water is needed to irrigate the areas to  which Tamil Nadu and Karnataka are entitled, under the  Agreement; and      (b) how should the surplus be divided and distributed for  the planned areas of Karnataka and for the areas  cultivated by Tamil Nadu (outside the Agreement of  1924). It is respectfully submitted that all areas  contemplated to be irrigated under the Agreement of  1924 are concerned – whether by Tamil Nadu or by  Karnataka, they have first to be taken into account as  committed uses or existing uses. The remaining areas  should be considered on the principles of equitable  apportionment that are well settled and on the evidence  led before this Hon‘ble Tribunal.‖    

152. The Tribunal, which had taken the view that the Agreements  

of 1892 and 1924 are valid and enforceable, alternatively suggested  

the apportionment of Cauvery waters on the following basis:-  

―(i) Protection of irrigated areas as existing prior to 1924  both in Karnataka as well as Tamil Nadu.   (ii) The development of irrigation as contemplated in the  1924 agreement but actually developed before 1974.   (iii) All other development to be considered as per  different priorities suggested by them, indicated later on  in the report.‖    

153. After so noting, the Tribunal opined that before the  

requirement of water is examined, the two States have to determine  

the areas which have been adopted by the two States. The areas  

where the States of Karnataka, Tamil Nadu and Kerala and Union  

Territory of Puducherry have to be served by the Cauvery System

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for irrigation are required to be considered. The principles for  

consideration were formulated by the Tribunal which are as  

follows:-  

―(i) Areas which were developed before the agreement of  the year 1924     (ii) Areas which have been contemplated for development  in terms of the agreement of the year 1924.     (iii) Areas which have been developed outside the  agreement from 1924 upto 2.6.1990, the date of the  constitution of the Tribunal. (i.e. from 1924 to 1990)     (iv) Areas which may be allowed to be irrigated on the  principle of equitable apportionment.‖    

154. On a perusal of the aforesaid, it is noticed that the Tribunal  

has taken the cut-off date as 02.06.1990, the date on which the  

reference/complaint was made. In the course of the hearing,  

learned counsel for all the parties accepted that they do not have  

any kind of quarrel over the determination by the said date.    

155. Having stated thus, we have to analyze the approach adopted  

by the Tribunal on the basis of the same.  Prior to that it is  

necessary to reflect on what the Court has said in the Presidential  

Reference. At this stage, we must note with profit that the Court  

had noted that the 1924 Agreement had expired. After the Court

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held that the agreement had expired and further that the legislation  

passed by the State of Karnataka was ultra vires, it proceeded to  

state thus:-  

―71. It will be pertinent at this stage also to note the true  legal position about the inter-State river water and the  rights of the riparian States to the same. In State of  Kansas v. State of Colorado the Supreme Court of the  United States has in this connection observed as follows:  

―One cardinal rule, underlying all the relations of the  States to each other, is that of equality of right. Each  State stands on the same level with all the rest. It can  impose its own legislation on no one of the others, and is  bound to yield its own views to none … the action of one  State reaches, through the agency of natural laws, into  the territory of another State, the question of the extent  and the limitations of the rights of the two States  becomes a matter of justiciable dispute between them  and this Court is called upon to settle that dispute in  such a way as will recognise the equal rights of both and  at the same time establish justice between them.  

The dispute is of a justiciable nature to be adjudicated  by the Tribunal and is not a matter for legislative  jurisdiction of one State ….  

‗The right to flowing water is now well settled to be a  

right incident to property in the land; it is a right publici  juris, of such character that, whilst it is common and  equal to all through whose land it runs, and no one can  obstruct or divert it, yet, as one of the beneficial gifts of  Providence, each proprietor has a right to a just and  reasonable use of it, as it passes through his land, and  so long as it is not wholly obstructed or diverted, or no  larger appropriation of the water running through it is

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made than a just and reasonable use, it cannot be said to  be wrongful or injurious to a proprietor lower down ….‘  

The right to the use of flowing water is publici juris,  and common to all the riparian proprietors; it is not an  absolute and exclusive right to all the water flowing past  their land, so that any obstruction would give a cause of  action; but it is a right to the flow and enjoyment of the  water, subject to a similar right in all the proprietors, to  the reasonable enjoyment of the same gift of Providence.  It is, therefore, only for an abstraction and deprivation of  this common benefit, or for an unreasonable and  unauthorised use of it that an action will lie.‖  

 72. Though the waters of an inter-State river pass  through the territories of the riparian States such waters  cannot be said to be located in any one State. They are in  a state of flow and no State can claim exclusive  ownership of such waters so as to deprive the other  States of their equitable share. Hence in respect of such  waters, no state can effectively legislate for the use of  such waters since its legislative power does not extend  beyond its territories. It is further an acknowledged  principle of distribution and allocation of waters between  the riparian States that the same has to be done on the  basis of the equitable share of each State. What the  equitable share will be will depend upon the facts of each  case. It is against the background of these principles and  the provisions of law we have already discussed that we  have to examine the respective contentions of the  parties.‖  

 156.  Though the aforesaid paragraphs were said in the context of  

the legislative power, yet it meaningfully stated the legal position  

about the Inter-State River Water and rights of the riparian States

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in the same and further that the distribution and allocation of  

waters between the riparian States has to be done on the basis of  

equitable share of each State which will depend upon how the  

quantum of equitable share is determined as per the facts of the  

case.   

157. The Tribunal referred to the decisions in State of Wyoming v.  

State of Colorado25, State of Nebraska v. State of Wyoming26,  

the report of the Krishna Water Disputes Tribunal, Chapter XII,  

page 98 under the heading of ―Protection of Existing Uses‖, the  

report of Narmada Water Disputes Tribunal, the Report of Godavari  

Water Disputes Tribunal, the Report of the Ravi and Beas Waters  

Tribunal and noted thus:-  

―16. There are three different views in respect of the  claims by different riparian States regarding sharing of  the water of an inter-State river or a river passing from  one nation to another:  

(i) The first view proceeds on what is called the doctrine  of absolute territorial sovereignty commonly referred to  as ‗Harmon doctrine‘. According to this doctrine every  State is sovereign and has right to do whatever it likes  with the waters within its territorial jurisdiction  irrespective of injury that it might cause to the  neighbouring State by such appropriation and diversion.  

                                                           25 259 US 419 (1922)  26 325 US 589 (1945)

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(ii) The second view is based on the stand that lower  riparian State is entitled to water in its natural flow  without any diminution or interference or alteration in its  character.   

During the last century both views had been propounded  – the first one by the upper riparian State and the second  by the lower riparian State. If it is examined by an  example, a State which is at the head of the river from  which the river initially passes then such State can  utilize and divert the water from the said river making  the lower riparian State starve, leading to the break-down  of the economy of such lower riparian State. Similarly, if  the second view is pushed to its logical end, then the  upper riparian State although may be in dire need of the  water of such inter-State river for agriculture and other  use shall be a mute spectator of the 14 water of such  inter-State river flowing from its territory to the lower  riparian State.   (iv) The third view is based on the principle of ―equitable  apportionment‖, that is to say that every riparian State is  entitled to a fair share of the water of an inter-State river  according to its need. Such a river has been provided by  nature for common benefit of the community as a whole  through whose territories it flows, even though those  territories may be divided by political frontiers.‖  

 158. Thereafter, the Tribunal referred to the decisions in Kansas v.  

Colorado27, Colorado v. Kansas28, State of New Jersey v. State  

of New York29, State of Connecticut v. Commonwealth of  

                                                           27 206 US 46 (1906)  28 320 US 383 (1943)  29 283 US 336 (1931)

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Massachusetts30, State of Colorado v. State of New Mexico31  

and came to hold as follows:-  

―24. It may be pointed out that in the Colorado v New  Mexico 459 US 176 (1982) known as Colorado I as well  as in Colorado v New Mexico 467 US at 310 (1984)  known as Colorado II there are explicit indications, to  consider future developments in equitably  apportioning a fully appropriated river. But it has been  pointed out in those opinions that any future  developments must not be inherently speculative in  nature and assessment is required to be made on the  benefits and harms of a future use.     25. It also appears that recent treaty between Canada  and the United States with regard to the Columbia  basin has discredited Harmon doctrine. Also in other  international disputes in respect of sharing of waters  of rivers flowing from the territory of one nation to  another, treaties have been entered which show that  different nations have adjusted their differences. The  Indus Treaty 1960, between India and Pakistan is an  example.     26. In Halsbury‘s Laws of England, Fourth Edition,  Volume 49(2) in paragraph 121 it has been said:   ―121. Rights and duties as to quantity of water. The  right of a riparian owner to the flow of water is subject  to certain qualifications with respect to the quantity of  water which he is entitled to receive. The right is  subject to the similar rights of other riparian owners  on the same stream to the reasonable enjoyment of it,  and each riparian owner has a right of action in  respect of any unreasonable use of the water by  another riparian owner. A riparian owner must not use  

                                                           30 282 US 660 (1931)  31 459 US 176 (1982)

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and apply the water so as to cause any material injury  or annoyance to his neighbours opposite, above or  below him, who have equal rights to the use of the  water and an equal duty towards him.‖  

 159. At this juncture, it is worth noting the submissions advanced  

by Mr. Katarki, learned senior counsel appearing for the State of  

Karnataka and Mr. Naphade, learned senior counsel appearing for  

the State of Tamil Nadu. It is submitted by Mr. Katarki that the  

equitable share of water to be allocated to the party States had to be  

based on needs rather than on the flow of the river.  No State had  

any right to the natural flow of an inter-state river and several  

factors had to be considered while assessing the needs like basin  

factors, drought area and population.  He emphasized on the basic  

aspects, namely, Natural Flow Theory and Helsinki Rules, 1966 and  

placed reliance on the decision in New Jersey (supra) and other  

authorities. Mr. Naphade, per contra, would contend that the  

contention that there has to be an equal apportionment of water  

between the two States is untenable. According to him, the  

parameter of equality has to be understood from a different  

perspective in a controversy giving rise to water dispute.  He relied  

upon the observation made by the Narmada and Krishna Water

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Disputes Tribunals that the principle of equality did not imply that  

there must be an equal division of water between the States but  

instead meant that the States must have equal consideration and  

equal economic opportunity. Such equality would not necessarily  

result in the same quantity of water being provided to the parties.    

160. The Tribunal has referred to the Helsinki Rules of 1966 that  

has rejected the Harmon Doctrine and laid stress on the need of  

equitable utilization of international rivers. The said Rules relate to  

the use of waters of international rivers. Articles V, VI and VIII read  

as follows:-  

―Article V  

(1) What is a reasonable and equitable share within the  meaning of Article IV is to be determined in the light of all  the relevant factors in each particular case.  

(2) Relevant factors which are to be considered include,  but are not limited to:  

(a) the geography of the basin, including in particular the  extent of the drainage area in the territory of each basin  State ;  

(b) the hydrology of the basin, including in particular the  contribution of water by each basin State;  

(c) the climate affecting the basin   

(d) the past utilization of the waters of the basin,  including in particular existing utilization;

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(e) the economic and social needs of each basin State ;  

(f) the population dependent on the waters of the basin in  each basin State;  

(g) the comparative costs of alternative means of  satisfying file economic and social needs of each basin  State;  

(h) the availability of other resource!;  

(i) the avoidance of unnecessary waste in the utilization  of waters of the basin ;   

(j) the practicability of compensation to one or more of  the co-basin States as a means of adjusting conflicts  among uses; and  

(k) the degree to which the needs of a basin State may be  satisfied, without causing substantial injury to a co-basin  State;  

(3) The weight to be given to each factor is to be  determined by its importance in comparison with that of  other relevant factors. In determining what is a  reasonable and equitable share, all relevant factors are to  be considered together and a conclusion reached on the  basis of the whole.  

Article VI: A use or category of uses is not entitled to any  inherent preference over any other use or category of  uses.  

Article VIII: 1. An existing reasonable use may continue  in operation unless the factors justifying its continuance  are outweighed by other factors leading to the conclusion  that it be modified or terminated so as to accommodate a  competing incompatible use.  

2. (a) A use that is in fact operational is deemed to have  been an existing use from the time of the initiation of  construction directly related to the useor, where such

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construction is not required, the undertaking of  comparable acts of actual implementation  

(b) Such a use continues to be an existing use until such  time as it is discontinued with the intention that it be  abandonded.  3. A use will not be deemed an existing use if at the time  of becoming operational it is incompatible with an  already existing reasonable use.‖   

 161. On a perusal of the said Rules, it is clear as crystal that the  

said Rules have not accepted the Harmon doctrine.  It has, on the  

contrary, laid emphasis on the need of equitable utilization of such  

international rivers. It is noticeable from Articles IV and V of the  

said Rules that they recognize equitable use of water by each basin  

State, setting out the factors, not exhaustive though, to be  

collectively taken into consideration for working out the reasonable  

and equitable share of the riparian states. The indicated factors,  

inter alia, include the geography of the basin, the hydrology of the  

basin, the climate, past utilization of waters, economic and social  

needs of each basin State, population dependent on the waters of  

the basin in each basin State, availability of other resources and the  

degree to which the needs of a basin State may be satisfied without  

causing substantial injury to a co-basin State. The emphasis clearly  

is that in determining the reasonable and equitable share, all

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relevant factors are to be considered together and a conclusion is to  

be reached on the whole.   

162. In this regard, it is submitted by Mr. Nariman that the  

allocation of water could be done equitably and in accordance with  

justice by restoring equal rights to the party states. He submitted  

that Karnataka and Tamil Nadu were co-equal States and that  

justice had to be done to both while allocating water, a fact which  

the Tribunal had failed to recognize.  The Tribunal intertwined a  

decision based on a void agreement with the doctrine of equitable  

apportionment contrary to the law laid down in In Re: Presidential  

Reference (supra). He submitted that the various applicable factors  

set out in the Helsinki Rules, 1966 were more or less evenly  

balanced between the two States. Further, based on the maxim that  

equality was equity, the balance water available after subtracting  

the share of the smaller States, i.e., Kerala and Puducherry and  

after accounting for wastage ought to be divided equally between  

Karnataka and Tamil Nadu.   

163. In this context, we may refer to the dictionary clause of the  

1956 Act.  Section 2(c) defines ‗water dispute‘.  It reads as under:-

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―2(c) ―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.‖   

 

164. Section 3 deals with complaint by the State Government as to  

water disputes.  The said provision is extracted below:-  

―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   

(b) the failure of the other State or any authority therein  to exercise any of their powers with respect to the use,  distribution or control of such waters; or   

(c) the failure of the other State to implement the terms of  any agreement relating to the use, distribution or control  of such waters,   

the State Government may, in such form and manner as  may be prescribed, request the Central Government to  refer the water dispute to a Tribunal for adjudication.‖

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165. The definition of ‗water disputes‘ and the provisions contained  

in Section 3 have to be given due significance.  Section 3 protects  

the right of inhabitants of a State.  When the States make a request  

under the 1956 Act for adjudication of the disputes, the interest of  

the inhabitants of the State is involved.  That is why, submits Mr.  

Nariman, both the States are governed by the parens patriae  

principle.  Keeping in view the principles of law stated, we are  

disposed to think that the controversy is to be adjudged on the  

bedrock of equal status of the States and the doctrine of  

equitability.  

O. The quintessence of pleadings before the Tribunal  

166. Having stated thus, we think it seemly to refer to the findings  

on material aspects that pertain to the pleadings as regards the  

allocation of quantity of water and the foundation to sustain such  

claims.  In that arena, we shall first advert to the outline of the  

pleadings.   

167. The plea of the State of Karnataka was that till the end of the  

19th century, utilization of the waters of the Cauvery in the States of  

Coorg and Mysore was primarily from channels drawn from the

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river bed and from tanks in small quantities not exceeding 73 TMC  

in aggregate. There was no facility of storage and, thus, the  

agricultural operations were dependent on rainfall. It alleged that  

the efforts made by the State of Mysore to utilize the waters of this  

river for the purposes of irrigation were continually frustrated by  

the protests of the British Government of Madras and though the  

State of Mysore was the upper riparian State and contributed the  

highest flow to the river, yet it was not permitted to exercise its  

powers to utilize the waters for irrigation due to the remonstrances  

of the lower riparian province of Madras. It pleaded that eventually,  

after a series of correspondence in the last part of the 19th century  

and early part of the 20th century and on the culmination of the  

arbitration proceedings on the issue, a scheme for storage of the  

water of Cauvery was formulated in 1931 after the construction of  

the Krishna Raja Sagara Dam (also referred to as ―KRS‖) for the  

storage of 44.8 TMC of water. It stated that by 1934, Madras too  

had completed the work of Mettur Dam for storage of 93.5 TMC of  

water of Cauvery thereby enabling cultivation of over 1,21,457 hec.  

(3,00,000 acres) of new area. It mentioned that after the  

reorganization of the States and formation of the State of Karnataka

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covering the areas of the new State of Mysore and others, the  

drainage area of Cauvery basin in Karnataka rose to 42.2%. Apart  

from referring to the principal tributaries of Cauvery in Karnataka  

like Harangi, Hemavathi, Kabini, it was underlined that the Cauvery  

river valley did receive varying degrees of rainfall. In elaboration, it  

was stated that while the western and central parts of the basin  

received rainfall in South-West monsoon commencing from the last  

week of May and ending in September, the eastern part was largely  

attended by the North-East monsoon starting in September and  

ending in December. It averred that the rainfall pattern per se  

evinced that large cultivable areas of the State suffered from  

inadequate rainfall. Though the hilly regions forming part of the  

Western Ghat in Karnataka received very heavy rainfall, yet other  

parts of the Districts of Mysore, Mandya, Hassan, Tumkur,  

Bengaluru and Kollar encountered severe and successive droughts.  

168. According to Karnataka, in sharp contrast, the eastern part of  

the basin in Tamil Nadu received heavy rainfall in North-East  

monsoon beginning from the end of September and ending in  

December and further the central part of the basin in Tamil Nadu  

received both South-West monsoon and North-East monsoon.

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Referring to the report of the Irrigation Commission, it maintained  

that though Karnataka had very large areas of cultivable and  

cultivated lands in the Cauvery basin, yet it has the largest extent  

of drought prone areas in the basin as well and that there was an  

imperative need to extend relief to these areas by providing proper  

irrigation facilities. It emphasized as well that due to uncertain  

ground water resources resulting from reduced recharge, general  

deep water table and low storage in the aquifer, the State has to  

depend on surface water allocation in the Cauvery basin.  

Elaborating its crop pattern, it was canvassed that Ragi, Jowar,  

Sessamum, Groundnut, Redgram and short duration pulses were  

the common Kharif crops under rain fed conditions. In some areas  

where there were pockets of retentive soils or were visited by late  

rains, some Rabi crops like Jowar, Bengalgram and cotton are also  

cultivated. It emphasized that to ensure crops during the entire  

period from June to February, i.e., the irrigation season, water from  

Cauvery was an indispensable necessity, more particularly in view  

of the precarious drought conditions suffered by the State.  

169. Referring to the backdrop of the dispute and the reference for  

the adjudication thereof before the Tribunal, the State of Tamil

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Nadu reiterated its demurral that the State of Karnataka did  

construct four reservoirs over Kabini, Hemavathi, Harangi and  

Suvarnavathi tributaries of Cauvery and set up other projects for  

storing water of the river much beyond the limits stipulated in the  

agreement of the year 1924 which decisively resulted in material  

diminution of the supply of waters of Cauvery to its territories.  

According to it, such indulgences adversely affected the Ayacutdars  

in Tamil Nadu who had been dependent on the water of river  

Cauvery for centuries. While reiterating that the Agreements of  

1892 and 1924 did factually recognize and protect the prescriptive  

rights of Tamil Nadu, a lower riparian State, over the water of  

Cauvery and that these agreements were the yields of deliberations  

over the disputes between the erstwhile Governments of Madras  

and Mysore, whose successors- in-interest are the present States of  

Tamil Nadu and Karnataka, it was averred that though the State of  

Karnataka was at liberty to use the water of Cauvery, yet it could  

not do so to the prejudice of the interest of the people of Tamil  

Nadu. It underlined that the apportionment of the water of an inter-

State river has to be adjudged on the principle of equitable  

apportionment as well as by the common law of prescriptive rights.

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According to Tamil Nadu, wherever there is an agreement between  

the parties regarding the use, development and control of waters of  

an inter-State river and the river valley thereof, the stipulations in  

the agreement would govern the claim of the parties. It alleged that  

the construction of Kabini, Hemavathi, Harangi and Suvarnavathi  

projects by Karnataka was without the consent of Tamil Nadu and  

thus in violation of the Agreement of 1924 and by taking advantage  

of the fact that Tamil Nadu was a lower riparian state. It dilated  

that Karnataka proceeded with the construction of Kabini reservoir  

from 1958 and completed the same in 1975 and the irrigation from  

the said reservoir commenced from 1975/1976 onwards. Tamil  

Nadu contended that because of the construction of these  

reservoirs, the inflows into Mettur reservoir were substantially and  

materially diminished to its immense prejudice. Apart from  

reiterating that the construction of these projects was without the  

consent of Tamil Nadu and also the clearance required therefor, it  

asserted that as per the settled principles, the upper riparian state  

did not have an absolute right to impound or utilize the water of an  

interstate river to the detriment of the lower riparian States. It  

strongly put forth that the pre-existing right of the lower riparian

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State has to be preserved more particularly when river Cauvery is  

the only major river in Tamil Nadu which had been contributing  

nearly 50% of the State‘s surface water use. Referring to the two  

monsoons experienced by the State, Tamil Nadu elaborated that the  

upper part of the Cauvery basin, which is above Mettur, is  

influenced by South-West monsoon and the lower part by the  

North-East monsoon and that the flow of river during the South-

West monsoon is to a great extent dependent on the run off from  

the hilly catchment above the Sivasamudram falls. It was stated  

that while the South-West monsoon is more intensive, unfailing and  

dependable and spread over a long period, the North-East monsoon,  

which visits the State after the South-West monsoon, is erratic and  

undependable so much so that the coastal areas and the Delta  

occasionally receive heavy intense rains of very short duration,  

most of which can neither be conserved nor utilized in the Delta.  

According to the State, during the South-West monsoon, most of  

the catchment lying below the Mettur reservoir is not benefitted,  

except a small portion of the high ranges of Bhawani and  

Amaravathi tributaries, as the catchment lies on the rain shadow  

areas of the Western Ghats. It was reiterated that due to the unique

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geographical and hydrological characteristics of the Cauvery basin,  

Tamil Nadu is not in a position to avail the benefit of the South-

West monsoon fully and has to suffer the damage wrecked by the  

North-East monsoon. To emphasize that it had to depend on the  

flows of river Cauvery since June onwards during the South-West  

monsoon and on local rainfall during the North-East monsoon, it  

explained that after the commissioning of the Mettur reservoir in  

1934, it had been possible to impound the excess flows and  

dispatch regulated discharges to meet the needs of the river  

channels enroute the Delta and that contingent on the availability  

of supplies, a number of regulatory controls have been devised to  

regulate the same. Referring to its crop pattern, Tamil Nadu  

disclosed that in the Delta, a short duration crop called ―Kuruvai‖ is  

raised between the months of June and September followed by a  

medium crop named ―Thaladi‖ between October and February. It  

also mentioned about a long term crop named ―Samba‖ raised  

between July and January in single crop lands which are large in  

extent. Tamil Nadu underlined that rice was the dominant crop in  

the Delta especially in the Thanjavur district and that the whole  

State largely depended on this district for rice which was the staple

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food of the people.  It asserted that the alluvial soil of the Delta was  

ideal for growing rice subject to the availability of water and only in  

isolated pockets, sugarcane, banana and other crops are grown.  

170. Kerala averred that the river Cauvery originates in the eastern  

slopes of the Western Ghats and has its huge catchment spread  

over the States of Kerala, Karnataka and Tamil Nadu and that three  

tributaries of the river, namely, Kabini, Bhavani and Pamber, have  

portions of their catchments in the State of Kerala. It was further  

asserted that its total contribution in the flow is to the extent of  

20% but it lags behind others in utilization of waters of the  

Cauvery. As a reason therefor, it cited the fact that before the  

reorganization of the States in the year 1956, neither Travancore  

nor Travancore-Cochin State was recognized as an interested party  

in the dispute of sharing of the water of Cauvery, but after the  

reorganization, determined efforts were made for improvement of  

the Basin and diversion of the water in Cauvery Basin for utilization  

by the State. It, however, underlined that the efforts of the State  

stood frustrated because of the objection of the other riparian states  

and though several claims had been brought up and were otherwise  

found to be technically feasible and economically viable, yet those

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could not be executed because of the adamant attitude of the other  

lower riparian states. It highlighted that the State of Kerala, for all  

these factors, had to be dependent on the single crop of paddy  

though there is much scope for raising second or even third crop  

with the availability of irrigation facilities from the water available in  

the Cauvery Basin. It emphasized that its ground water potential  

was negligible but because of the special topographical feature of  

the Cauvery Basin in the State of Kerala, diversion of water from  

the Cauvery Basin did promise the scope of development of cheap  

hydro electric power in addition to meeting the need for  

consumption of water for irrigation purposes. It stated that while it  

was stifled from taking up any scheme in the Basin, Tamil Nadu  

proceeded with the construction in utilizing water for extending  

irrigation and for that purpose, the Government of India cleared  

projects like Mettur Canal Project, Kattalai High Level Canal and  

Pullambadi Canal Schemes.  The State of Karnataka also embarked  

upon new irrigation projects for utilizing Cauvery water even  

without the clearance of the Government of India in order to  

underscore the discrimination meted out to the State of Kerala in  

the matter of proportionate utilization of the waters in the Cauvery

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Basin to which it was entitled.  

171. The Union Territory of Puducherry pleaded that its Karaikal  

region is situated on the South Coromandel Coast and that the  

three sides thereof are bound by Thanjavur District of Tamil Nadu  

and on the East lay the Bay of Bengal. It disclosed that the total  

area of Karaikal region is 14,920/- hectares out of which 10,990  

hectares is under cultivation.  While stating that the sub-soil water  

in the region is unsuitable for cultivation, it mentioned that the  

water supplied to Karaikal region from river Cauvery flows from the  

branches of the river below Grand Anicut where the river Cauvery  

divides and sub-divides itself and serves both the irrigation and  

training channels in the Karaikal area. The water requirement for  

the Karaikal region for the three crops, namely, Samba (single crop),  

Kuruvai (Kharif) (Double crop) and Thaladi (Rabi) (Double crop) was  

mentioned to be 9240 Mc.ft, i.e., 9.24 TMC for 17220 ha. of  

irrigation.  It claimed that the interest of its territory was taken note  

of when the Agreements of 1892 and 1924 were entered into  

between the then Government of Madras and Government of  

Mysore in connection with the construction of Krishna Raja Sagara  

Dam and that at the time of construction of Mettur Dam, the

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French Administration, then in-charge, passed on its claim to the  

then Government of Madras for regulation of supply of Cauvery  

Water to Karaikal region. It, however, alleged that after 1972, there  

has been a shortfall in the actual release of water ranging from 2  

TMC to 6 TMC.   

172. After recording the evidence to which we shall refer to  

hereinafter under different headings, to reiterate, the issues for the  

purpose of convenience were regrouped finally which we have  

already reproduced hereinbefore.  

173. The Tribunal in seriatim dealt with the regrouped issues and,  

accordingly, proceeded to examine the validity or otherwise of the  

Agreements of 1892 and 1924. It set out the background and the  

circumstances under which the agreements were entered into. We  

need not advert to the same in detail as we have referred and dealt  

with while dealing with the issues pertaining to the status of the  

Agreements.  However, it is necessary to state that after a spate of  

correspondence and series of discussions, an agreement between  

the Mysore Government and Madras Government was entered into  

in 1892 in the form of rules captioned as ―Rules defining the limits  

within which no new irrigation works are to be constructed by the

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Mysore State without previous reference to the Madras  

Government‖. The Tribunal set down the relevant clauses of the  

Rules and the extracts therefrom having a formidable bearing on  

the issue under scrutiny are quoted hereinbelow:-  

―The Mysore Government shall not, without the previous  consent of the Madras Government, or before a decision  under rule IV below, build (a) any ―New Irrigation  Reservoirs‖ across any part of the fifteen main rivers  named in the appended Schedule A, or across any stream  named in Schedule B below the point specified in column  (5) of the said Schedule B, or in any drainage area  specified in the said Schedule B, or (b) any ―New anicut‖  across the streams of Schedule A, Nos. 4 to 9 and 14 and  15, or across any of the streams of Schedule B, or across  the following streams of Schedule A, lower than the  

points specified hereunder:  

Across 1. Tungabhadra – lower than the road crossing at  

Honhalli,  

Across 10 Cauvery – lower than the Ramaswami Anicut  

and,  

Across 13 Kabani – lower than the Rampur anicut.  

III.   When the Mysore Government desires to construct  any ―New Irrigation Reservoir‖ or any new anicut  requiring the previous consent of the Madras  Government under the last preceding rule, then full  information regarding the proposed work shall be  forwarded to the Madras Government and the consent of  that Government shall be obtained previous to the  actual commencement of work.  The Madras  Government shall be bound not to refuse such consent  except for the protection of prescriptive right already  acquired and actually existing, the existence, extent and

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nature of such right and the mode of exercising it being  in every case determined in accordance with the law on  the subject of prescriptive right to use of water and in  accordance with what is fair and reasonable under all  the circumstances of each individual case.‖  

174. Schedule A that was annexed to the Rules provided the details  

of the rivers and their tributaries passing through the territory of  

Government of Mysore including Cauvery and its tributaries  

Hemavathi, Laxmanthirtha, Kabini, Honhole (or Suvarnavathi) and  

Yagachi (tributary of Hemavathi) upto Belur Bridge. It was clarified  

that at that point of time, there was no mention of the tributary  

Harangi in the Schedule as it was outside the territory of Mysore  

and was located in Coorg State.  

175. In the above premise, the Tribunal noted that in terms of the  

Agreement of 1892, the Mysore Government was required to obtain  

the previous consent from the Madras Government in respect of any  

construction proposed to be made including any new irrigation  

reservoir across the 15 main rivers named in Schedule A to the  

agreement or across any stream named in Schedule B below the  

point specified therein. It was stipulated as well that before any  

such project was executed, full information with regard to the same  

was required to be furnished to the State of Madras for the purpose

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of consent. In its turn, the Madras Government was not to refuse  

such consent except on the failure of the Mysore Government to  

furnish full information regarding the proposed work to the Madras  

Government and if the grant of any such consent by the Madras  

Government would deprive its inhabitants of their protection of  

prescriptive rights already acquired and existent in accordance with  

law on the use of an inter-state river.  

176. The Tribunal thereafter took note of the events subsequent  

thereto which, with time, gave rise to a fresh dispute between the  

two States following the formulation of proposals by them for  

construction of reservoirs on the river Cauvery. The dissension, as  

the Tribunal has noted, gave rise to disputes, the Griffin Award and  

eventually coming into force of the 1924 Agreement. The Tribunal  

generally traversed the agreement as a whole with particular  

reference to clause 10(i), (ii), (iii), (iv), (v), (vi), (vii), (xi), (xiv) and (xv)  

dealing with the construction and operation of the Krishna Raja  

Sagara reservoir; obligation of the Mysore Government to regulate  

the discharge through and from the said reservoir strictly in  

accordance with the rules of regulation set forth in Annexure (I) to  

the Agreement; future extensions of irrigation in Mysore and

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Madras as well as future constructions of reservoirs on Cauvery  

and its tributaries mentioned in Schedule A of the 1892 Agreement;  

the mode and manner of operation of the reservoirs so as not to  

make any material diminution in supplies connoted by the gauges  

accepted in the rules of regulations for the Krishna Raja Sagara  

reservoir; reconsideration of the limitations and arrangements  

embodied in Clauses (iv) to (viii) on the expiry of 50 years from the  

date of the execution of the agreement for the purpose of  

modifications and additions, as may be mutually agreed upon;  

liberty of the Mysore Government to construct, as an offset, a  

storage reservoir on one of the Tributaries of the Cauvery in Mysore  

of a capacity not exceeding 60% of the new reservoirs in Madras,  

should the Madras Government construct irrigation works in  

Bhawani, Amravathi or Noyyal rivers as new storage reservoirs and  

the provision for reference to arbitration of any dispute between the  

two Governments touching upon the interpretation or operation or  

carrying out of the agreement.    

177. The Tribunal also set out the extract of Rule 7 of the rules of  

regulation of the Krishna Raja Sagara prescribing the minimum  

flow of Cauvery that was to be ensured at the Upper Anicut before

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any impounding was made in the Krishna Raja Sagara reservoir. Be  

it stated, we have already reproduced the same earlier.   

178. The Tribunal next scanned the Agreements of 1892 and 1924  

and to discern the clarificatory Agreement dated 17.06.1929 noted  

that the fixed level or discharge was to be maintained on the basis  

of (a) the waters released from Krishna Raja Sagara reservoir, (b)  

from Kabini, Suvarnavathy, Shimsha and Arkavathi Tributaries  

which join Cauvery within the State of Mysore/Karnataka below  

Krishna Raja Sagara reservoir and (c) Four Tributaries of Cauvery  

in Madras/Tamil Nadu; (i) Chinnar, (ii) Noyyal, (iii) Bhavani and (iv)  

Amaravathi.  

 179.  The Tribunal further observed that the Agreement only  

contemplated and provided for future extension of irrigation in new  

areas on the terms and conditions mentioned therein and  

concluded that after the execution of the said Agreement, there was  

no nexus or link between the discharge of water of river Cauvery to  

the State of Madras and the areas over which any prescriptive right  

had already been acquired or was actually existing and the formula  

was worked out by taking the total area which was under irrigation

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by the Cauvery system before the execution of the said Agreement.  

180. It analyzed in detail the various clauses of the said Agreement  

with the mutual rights and obligations as specified therein and in  

that context, it opined that whenever a dispute was raised, it was to  

be examined in the light of the conditions prescribed not only in  

clauses 10 (iv) to 10 (viii) but also in the light of the obligation and  

mandate provided on the part of State of Mysore/Karnataka to  

follow the rules of regulation for Krishna Raja Sagara reservoir as  

contained in clause 10(ii).  

181. It adverted to the observations of this Court that though the  

water from inter-state river pass through the territories of riparian  

States, yet such waters cannot be located in any one State, being in  

a state of flow, and, thus, no State can claim exclusive ownership of  

such water so as to deprive the other States of their equitable  

share. Keeping in view of the judgment of this Court, the Tribunal  

negatived the contention of the State of Tamil Nadu that the  

allocation and apportionment of the waters of river Cauvery should  

be made strictly in accordance with Agreements dated 1892 and  

1924 but parted with the observation that the terms thereof would,  

however, have to be kept in view, while considering the

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developments made in the different State vis-a-vis the share of each  

riparian State.  

P. The findings of the Tribunal on various issues  

P.1  Prescriptive rights and other claims  

 182. Vis-a-vis the prescriptive rights and other claims projected by  

the States, the Tribunal reiterated that the Agreement of 1924 along  

with the rules of regulation of Krishna Raja Sagara reservoir, as  

appended thereto, did not indicate anything to that effect and  

neither any reference had been made to the areas over which any  

prescriptive right had been acquired prior thereto or existing nor  

any provision had been made with regard thereto. It differentiated  

in this respect the Agreement of 1892 which laid stress in respect of  

prescriptive rights already acquired and then existing from the  

Agreement of 1924 which did not contain a reference to any existing  

prescriptive right of the State of Madras or its cultivators in respect  

of the water to be released to it. The Tribunal perceived that the  

Government of Mysore and the State of Madras while entering into  

the Agreement of 1924 seemed to have recognized the total areas  

under irrigation of the Cauvery System within the State of Mysore

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as well as the State of Madras irrespective of any prescriptive right  

having been acquired by the State of Madras on any part or whole  

of the areas under irrigation and it rather provided for future  

extension of irrigation in new areas on the terms and conditions as  

set out. Referring to a letter dated 06.07.1915 addressed by the  

then Dewan of Mysore to the Resident of Mysore which carried,  

according to the Tribunal, an admission on behalf of the State of  

Mysore to the effect that at that point of time, the area irrigated  

under the Cauvery System in Madras was 12,25,500/- acres, it  

upheld the claim of State of Tamil Nadu that prior to the execution  

of the Agreement of 1924, its area of irrigation was 13,26,233 acres.   

The Tribunal, thus, concluded that in the overall background, it  

would be futile to examine as to what was the total area in the then  

State of Madras over which prescriptive rights had been acquired or  

were in existence for the purpose of allocating the quantity of water  

to the State of Tamil Nadu and that for all intents and purposes, the  

issue regarding prescriptive right of Madras had been rendered  

academic.    

 

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P.2  Breach of agreements of 1892 and 1924 and consequences    thereof  

 183.  Dealing with the highly contentious issue of breach of the  

agreements and the consequences thereof, the Tribunal outlined  

the summary of the rival orientations. While the State of Karnataka  

urged that all its projects with regard to which grievances had been  

made by the State of Tamil Nadu had been contemplated under the  

Agreement of 1924 and that  no separate consent therefor was  

required from the State of Tamil Nadu and that in view of clauses  

10(iv) and 10(vii), the Mysore Government was at liberty to carry out  

future extension of irrigation within its territories under the  

Cauvery and its tributaries to the extent as permissible thereunder  

and in the manner as prescribed, the remonstrance of the State of  

Tamil Nadu was that the Mysore Government did not furnish the  

full particulars and details of the reservoir schemes and of the  

impounding of water thereby, as required thereunder in clause  

10(viii).  It contended as well that the Rules of Regulation in respect  

of such reservoirs had to be settled first before the construction was  

to start as the apprehension of the then State of Madras was that  

impounding in such reservoirs was bound to affect the flow at

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Upper Anicut as stipulated in clauses 7 and 10 of the rules of  

regulation of Krishna Raja Sagara reservoir.    

184. To address these areas of dissension, in essence, the Tribunal  

primarily referred to the official exchanges/correspondence between  

the two States after the execution of the Agreement on various  

aspects bearing thereon, during which both the States did initiate  

and pursue their projects, levelling at the same time, against each  

other, the imputation of deviations from the Agreement. The  

Tribunal noted as well that after 1974, when according to the State  

of Karnataka, the Agreement of 1924 came to an end, it started  

impounding waters in different reservoirs constructed over the  

tributaries of Cauvery within its territories without following any  

Rules or any of the terms of the Agreement of 1924 and that the  

areas which were to be put under irrigation from such reservoirs  

and other diversion of works, like Anicuts increased every year.   

Referring to the charts laid before it, the Tribunal also marked that  

the impounding of water in different reservoirs on Hemavathi,  

Kabini, Suvarnavathy and Harangi tributaries in the State of  

Karnataka increased, which precisely was one of the inducing  

factors for the dispute to be referred to the Tribunal for

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adjudication.  The Tribunal, on an overall view of the intervening  

developments, concluded that the issue as to who was at fault and  

responsible for such alleged breaches or violations had been  

rendered academic with time and was of no practical relevance.  It,  

however, set down that Mysore had observed the rules of regulation  

of Krishna Raja Sagara reservoir till the expiry of the period of 50  

years from the date of the execution of the Agreement of 1924, but  

thereafter had started asserting its territorial rights over the water  

flowing from Cauvery within its boundaries. Noting, amongst  

others, that even the State of Tamil Nadu had increased its acreage  

under the Cauvery irrigation system over the years from 16 lakhs to  

28 lakhs, the Tribunal was of the view that the violations or the  

injuries caused by the States allegedly to each other was really a  

matter of history and defied any manageable parameter for  

assessment thereof after the lapse of considerable period of time.  

P.3   Peripheral issues qua claims of Kerala and Union Territory  of Pondicherry (presently named as “Puducherry”)  

 185. The Tribunal, at this juncture, before embarking upon the  

scrutiny of the factors to ascertain the aggregate yield of water  

available for the purpose of apportionment amongst the riparian

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States, addressed a few peripheral issues pertaining to the claims of  

Kerala and the Union Territory of Puducherry. Qua Kerala, it  

recorded that its claim of share of waters of the river Cauvery had  

been made primarily because of the areas transferred to it from the  

State of Madras. The Malabar District which before the  

reorganization of the States, was an integral part of the State of  

Madras, it was noticed, not only included a part of the Cauvery  

Basin but also a part of two important tributaries, namely, Kabini  

and Bhawani, apart from another tributary, namely, Pambar which  

was within the erstwhile State of Travancore Cochin, territories  

whereof also were integrated with the new State of Kerala on such  

reorganization. The erstwhile State of Travancore Cochin was not a  

party to the Agreement of 1924, but after its formation in the year  

1956, the State of Kerala started claiming apportionment of the  

waters contending that the said Agreement was not binding on it  

and ought to be ignored to determine its share. The Tribunal  

exhaustively referred to the series of communications projecting the  

grievances and demands of the State of Kerala, the demurral in  

substance being that the co-riparian States, Mysore and Madras,  

were prosecuting their projects in total disregard of its share of

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water in the Kabini, Bhawani and Pambar tributaries. In the  

discussions held, it asserted that there was no valid or legal  

agreement which did bind it with regard to the allocation of waters  

in Cauvery and its tributaries as it was never a party thereto. It  

claimed that the three tributaries, namely, Kabini, Bhawani and  

Amaravathi, which had become part of Kerala State, did contribute  

about 220 TMC against the total flow of 680 TMC in the entire  

Cauvery basin and that there had been practically no utilization of  

this water  by it. It registered its claim for irrigation and power  

generation at 86 TMC.  

186. The claim of Union Territory of Puducherry on the basis of its  

total area of cultivation to be 43,000 acres was taken cognizance of.  

This was based on the fact that the Karaikal region of the Union  

Territory of Puducherry was located within the Cauvery basin and  

that seven branches of Cauvery did flow through the said region.  

The Tribunal parted with the observation that the Union of Territory  

of Puducherry was, thus, interested only in the allotment of its  

share of water in the Cauvery basin being at the tail end among the  

riparian States. It felt it apt to direct that 6 TMC out of the total  

volume to be released to Mettur Dam would have to be made

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available for utilization by Puducherry for its irrigation in the  

Karaikal region.  

P.4   Gross water available for apportionment  

P.4(i) Surface flow of water:    187. Having thus laid the factual preface comprehending the  

relevant facets of the discord, the Tribunal next turned to determine  

the surface flow of Cauvery river to ascertain the volume of water  

dependably available for eventual allocation amongst the claimants-  

States. For the said purpose, it initiated the scrutiny from the yield  

of the river. It noticed that the yield or the total available quantum  

of water in a river system was dependant on rainfall pattern,  

catchment area characteristics including soil and vegetal cover and  

various climatic parameters affecting evaporation and evapo-  

transpiration in the basin. It also took note of the fact that the  

annual yield of a given basin varies from year to year depending  

upon the occurrence of rainfall and its intensity and distribution in  

time and space. It observed that in the assessment of total yield, the  

withdrawals of water, if any, for different uses had a bearing and  

that the total annual flow including upstream withdrawals at the  

terminal site out of the yield of a river system was required to be

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noted. It recorded that due to variability of the annual yield of a  

river from year to year, depending upon the rainfall distribution,  

consequent run off and withdrawals, etc., such data is collected for  

a number of years to assess the reliable yield. At this stage, passing  

reference was also made to the doctrine put forward by the Attorney  

General Harmon of the United States that Riparian States have  

exclusive or sovereign rights over the water flowing through their  

territories and the anomaly in this doctrine in the implementation  

thereof, especially in cases where the water of the river concerned  

was not sufficient for all the States through which it passed. This  

was so, as on the upper riparian State claiming its exclusive right to  

utilize the waters on the basis of the aforesaid doctrine, the right of  

use of water of such inter-state river by the lower riparian State  

would stand jeopardised. The other extreme assertion of the lower  

riparian States that they were entitled to water of such inter-State  

or international rivers in their natural flow without any interference  

and alteration in their character did have the potential of creating  

disharmony and anomaly. To strike a balance for resolving such  

conflicting claims of the upper and lower riparian States, the  

principle of equitable apportionment as propounded by the

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Supreme Court of United States in Kansas v. Colorado (supra) was  

taken note of. The Tribunal while accepting this principle however  

posed a question to itself, as to what would be the equitable  

apportionment, more particularly where the water available was not  

enough to cater to the needs of different riparian States.   

188. The Tribunal noted in this context that the total amount of  

water available in river Cauvery through surface flows and  

alternative sources was much less than what the different States  

claimed and required for their irrigation, electricity, drinking water  

and to run different projects. It recounted again the formation of the  

Cauvery Fact Finding Committee in the year 1972 and its report  

which, on the issue, after having regard to the particulars and data  

of the total yield forwarded by the States involved, cross-checked it  

spanning over a period between 1933-34 to 1970-71 and also on  

the basis of its investigation and further taking into consideration  

the gauge and discharge readings at different places in different  

States, worked out the dependable yield at 50%, 75% and 90% to be  

740 TMC, 670 TMC and 623 TMC respectively. In arriving at these  

figures, the Committee noted the utilization of Cauvery water in the  

years 1901, 1928, 1956 and 1971 by different States. The

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Committee also reflected over the different projects in different  

States, land use, cultivated areas and agricultural practices,  

geology and minerals as well as the climate, rainfall and water  

resources vis-a-vis the competing States. Gauge and discharge  

observations at the recorded sites in Tamil Nadu and Mysore in  

particular were noted too. In view of the long term record available  

for the main Cauvery at Krishna Raja Sagara, Mettur and Grand  

Anicut/Lower Anicut, the Committee estimated the yield at 50%,  

75% and 90% dependabilities. The Committee, thus assigned  

sufficient weightage to the existence of Krishna Raja Sagara and  

Mettur reservoirs and, accordingly, relied upon the data from   

1933-34 when both these reservoirs were in position. The yield at  

the terminal point of the basin, namely, Lower Coleroon Anicut,  

was, thus, assessed by the Committee at 740 TMC at 50%  

dependability, 670 TMC at 75% dependability and 623 TMC at 90%  

dependability. The Tribunal observed that the report of the  

Committee had been considered by the Chief Ministers of the States  

whereupon they concurred with the finding of the total yield within  

the Cauvery basin.  

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189. In the same year, i.e., 1973, the Chief Ministers of the three  

riparian States and the Minister for Irrigation of Government of  

India in a meeting did also agree that it was necessary for all the  

concerned States to effect economy in the use of water so as to  

make it possible to meet the legitimate needs of other projects  

which were feasible in the Cauvery basin. Having said that, in the  

end, Mr. C.C. Patel, Additional Secretary in the Ministry of  

Irrigation and Power was asked to carry out detailed studies on the  

scope for economy in the use of Cauvery waters. Accordingly, Mr.  

Patel, on the completion of his studies, suggested some concrete  

proposals in his report qua the States. The Tribunal recorded that  

the State of Tamil Nadu did not dispute at any stage the  

assessment made by the Cauvery Fact Finding Committee in  

respect of the river flow and total yield of river Cauvery to be at 740  

TMC at 50% dependability, 670 TMC at 75% dependability and 623  

TMC at 90% dependability and had also accepted about the  

utilization by the three riparian States, Tamil Nadu, Karnataka and  

Kerala, as found by the Committee in its additional report to be  

566.60, 176.82 and 5.00 TMC respectively.

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190. The Tribunal, however, at the hearing of the arguments,  

required the States of Karnataka and Tamil Nadu to furnish the  

flow series for 38 years, i.e., from 1934-35 to 1971-72 and from the  

data so furnished, it transpired that according to the State of  

Karnataka, the average yield for the period 1900-01 to 1971-72 was  

792.3 TMC which, at 50% dependability, figured 752 TMC. Tamil  

Nadu noticeably, on the basis of flow series from the year 1934-35  

upto 1971-72, claimed the total yield at 50% dependability to be  

740 TMC. The Tribunal, on a comparison of the flow series for the  

two States for the same period, i.e., 1934-35 to 1971-72, quantified  

the dependable yield at 50% at 734 TMC qua Karnataka and 740  

TMC for Tamil Nadu. Responding to the plea of Karnataka that the  

Tribunal should take into consideration the flow series for the  

period after 1972, it noted that none of the party-States had filed  

annual flow series for the period subsequent to 1972 for important  

nodal points, namely, Krishna Raja Sagara, Mettur and Lower  

Coleroon Anicut and that in the absence of such information, it was  

not possible to come to the conclusion that there has been a  

material change in the total yield within the basin. It remarked as  

well that after 1974, none of the States appeared to be interested in

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disclosing the correct information in respect of withdrawals because  

of which the details furnished in respect of flows and withdrawals  

by the party-States in the common format after 1972 were disputed  

by both the States. The Tribunal took note of the fact that Kerala,  

since the initial stage, had supported the finding of the Cauvery  

Fact Finding Committee that 740 TMC of water was available in the  

Cauvery system in an average year. The stand of the Union  

Territory of Puducherry was similar. In view of such preponderant  

and convincing empirical inputs, the Tribunal accepted the total  

yield of the Cauvery basin at 50% dependability to be 740 TMC and  

at 75% dependability as 670 TMC.  

P.4(ii) Identification of dependable yield:  

191. The Tribunal next turned to identify which of the two  

dependable yields, i.e., 50% or 75% was to be adopted for the  

purpose of eventual apportionment. In this context, it premised that  

the variability of annual yield from year to year warranted  

ascertainment of the sustainable utilizable flow which could be  

accepted for final allocation for which dependability of the available  

flow (yield) was of formidable significance. In this regard, it noticed

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that the utilizable quantities of water from surface run off had been  

assessed by different authorities including the Irrigation  

Commission, 1972 and the National Commission on Agriculture,  

1976 based on physiographic conditions, hydro-meteorological  

parameters and socio-political environment, legal and constitutional  

constraints and available technology of development. The  

dependability factor, the Tribunal observed, did indicate the degree  

of assured supply available on the basis of which a project/scheme  

for any particular use had been designed. It also recorded that from  

the information furnished by the States of Karnataka and Kerala in  

the common format, it transpired that most of the projects had  

been designed on 50% dependability. The Tribunal felt advised as  

well by the observations of the Supreme Court of United States in  

State of Wyoming v. State of Colorado (supra) that the lowest  

natural flow of the years is not the test and the reasonable view is  

that a fairly constant and dependable flow materially in excess of  

the lowest may generally be obtained by means of reservoirs  

adopted to conserve and equalize the natural flow. The Tribunal  

mentioned that from the yield series furnished by the States of  

Tamil Nadu and Karnataka during the period of 38 years from

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1934-35 to 1971-72, the lowest recorded yield was during the  

period 1952-53 at 523 TMC according to Tamil Nadu and 516 TMC  

according to Karnataka. It noted that in the Cauvery basin, the  

fluctuation of the flows was not as high as in the Krishna or  

Narmada basin, such fluctuation between the lowest yield and the  

dependable yield being within 30% in comparison to 56% and 70%  

in case of Krishna or Narmada. The Tribunal took note of the  

storage capacities of various reservoirs built by the States of Tamil  

Nadu and Karnataka before and after 1972 in the Cauvery basin. It  

also took into account the projects proposed by the State of Kerala  

having live storage of more than 1 TMC each totaling 19 TMC of live  

storage capacity in the basin.  The fact that in addition, about 12  

TMC of storage capacity was available from other small reservoirs  

with capacity of less than 1 TMC was taken cognizance of. The  

Tribunal, thus, concluded that the total storage capacity in the  

Cauvery basin was 330 TMC (gross) and 310 TMC (live). It was of  

the view that about 42% of 740 TMC (i.e., 50% dependable yield)  

could be stored in all the storage reservoirs in the Cauvery basin  

which was a very significant aspect for consideration in the  

development and utilization of water resources of a river basin. It

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concluded that in view of the facets examined on the basis of the  

materials available, adoption of 50% dependable flow for  

apportionment amongst the party-States, bearing in mind the  

reinforcement in the two monsoon seasons and the availability of  

ample storage facilities, would be fair and the system could be  

further strengthened by integrated operation of the important  

reservoirs.  

P.4(iii) Additional source of water:    

192. The Tribunal, in its quest for an additional/alternative source  

of water, dwelt upon sub-surface water or groundwater which is a  

portion of the earth‘s hydrological cycle. It started with the premise  

that the groundwater originates for all practical purposes as surface  

water which infiltrates into the ground from natural re-charge of  

precipitation, stream flow, lakes and reservoirs. It noted the   

recorded fact that recharge of the groundwater takes place from  

natural resources like rainfall and artificial modes, i.e., application  

of water to irrigate crops, flooding of areas caused by over-flowing of  

streams to their sides and seepage from unlined canals, tanks and  

other sources of re-charge  in any particular area.  It took

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cognizance of the empirical data prepared by the Central Ground  

Water Board, Ministry of Water Resources, Government of India,  

that groundwater caters to more than 45% of the total irrigation in  

the country. On this issue, whereas the State of Karnataka  

contended that while making apportionment of the waters available  

within the Cauvery basin, groundwater available within the delta  

areas should also be taken into consideration, per contra, Tamil  

Nadu asserted to the contrary.   According to it, so far as the delta  

was concerned, the groundwater was mainly derived from re-charge  

by the supplies from Mettur, i.e.,  it is the water of river Cauvery  

and its tributaries which by process of re-charge becomes  

groundwater within the delta area in the State of Tamil Nadu and  

the same is utilized by the farmers for raising of early nurseries  

ahead of releases from Mettur and for irrigating belated crop  after  

stoppage of Mettur releases. It, thus, asserted that as the  

groundwater in the delta area is replenished by the releases from  

Mettur, it cannot be considered to be an independent source of  

irrigation or an alternative means of irrigation. The Tribunal, in  

order to address this issue, traversed the studies undertaken,  

amongst others, by the Central Ground Water Board, Ministry of

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Water Resources, Government of India which, to reiterate, attested  

that groundwater is an important source of irrigation and caters to  

more than 45% of the total irrigation in the country and that the  

contribution of groundwater irrigation to achieve self-sufficiency in  

food grains production in the past three decades had been  

phenomenal. It mentioned in its report that although the  

groundwater is an annually replenishable resource, yet its  

availability is non-uniform in space and time and though for  

planning its development, a precise estimation of groundwater  

resource and irrigation potential is a necessary pre-requisite, yet  

such an exercise is rather difficult as  techniques are currently not  

available for direct measurement.  The report further enumerated  

the items of supply to and disposal from groundwater reservoirs.   

The Tribunal noted that for irrigation, there are three sources of  

water supply, namely, rainfall, surface flow of any river which can  

be taken to different areas through canal system and groundwater  

which can be taken out through open wells or tube-wells. Reverting  

to the Cauvery basin, the Tribunal marked that it was an admitted  

position that the variability in time and quantity of rainfall from the  

South-West monsoon and the North-East monsoon in some years

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do create problems thereby affecting the surface flow of river  

Cauvery and its tributaries which in its own turn affect the storage  

in different reservoirs like Krishna Raja Sagara, Mettur, etc. The  

Tribunal underlined that it is in this background that availability of  

groundwater assumed importance. It also referred to the  

disclosures in research undertaken in the field that the availability  

of groundwater for use was limited to the annual re-charge which  

could be withdrawn and again replenished by natural  

rainfall/artificial modes of re-charge so much so that the annual  

withdrawals of groundwater in any region need to be in equilibrium  

with the annual replenishment of groundwater in that region.  It  

indicated  on the basis of the materials available that over-

withdrawals made from an aquifer (i.e., water bearing rock  

formation)  at rates  in excess of the net re-charge are described as  

―mining‖ of groundwater as it lowers the groundwater level  

permanently to the extent these over-withdrawals are made thereby  

leading to serious problems.  It noted that if such practice of over-

withdrawals would continue resulting in decline of groundwater  

table, the pumping of water would become more and more  

expensive from the greater depth thus compounding the situation.  

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The Tribunal, adverting to the Central Ground Water Board   

Publication ―Ground Water Resources of India -1995‖ observed that  

whereas in Karnataka,  dug-wells, dug-cum-bore wells and bore  

wells were the main groundwater structures feasible, the ground  

water development for irrigation had commenced recently in the  

State.  As regards the State of Tamil Nadu, it was observed that  

groundwater development in most of the parts of the State was high  

resulting in lowering of water level in many areas.  The caveat in the  

report that in the coastal areas of Tamil Nadu, a cautious approach  

has to be adopted for groundwater development due to salinity  

hazards, was noted. The fact that the research study and  

experiments indicated towards the encouraging conjunctive use of  

groundwater with the available surface waters was taken note of by  

the Tribunal as well. This was clearly suggestive of the  

comprehension that groundwater could be used to supplement  

surface water supplies in order to reduce peak demands for  

irrigation and other uses or to meet the deficit in the years of low  

rainfall. Reports, inter alia, of the Irrigation Commission, 1972  

disclosing the role played by groundwater in mitigation of the  

requirements of the party-States, namely, Karnataka (35%), Kerala

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(21%), Tamil Nadu (47.2.%) and Union Territory of Puducherry  

(61%) were noticed by the Tribunal. The Tribunal also took note of  

the fact that the development of groundwater had taken place  

mostly in the private sector where the owners have many a time  

over-exploited the available groundwater resources resulting in  

gradual lowering of the water level with the hazard of intrusion of  

sea water in the coastal areas thereby polluting the quality of  

groundwater in the vicinity of the coastline and, thus, rendering the  

groundwater in the affected area not only unfit for human  

consumption but also for use in agriculture. The Tribunal marked  

the limit of groundwater development proportionate to the annual  

replenishable groundwater resources as prescribed by the National  

Water Policy. The aspect that though underground water resources  

of a State had been acknowledged to be a relevant factor by the  

Krishna Water Disputes Tribunal, Narmada Water Disputes  

Tribunal as well as Godavari Water Disputes Tribunal for equitable  

apportionment of the waters of an inter-State river system, yet they  

declined to investigate the question regarding availability of  

groundwater and quantity thereof on the ground that groundwater  

flow cannot be accurately estimated from the technical point of view

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and, thus not fully cognizable from the legal point of view, was  

underlined.   

193. The Tribunal referred to the investigation undertaken by a  

team of experts under the United Nations Development Programme  

with its report stating that the total yearly quantity of replenishable  

groundwater that can be extracted from the shallow aquifer in the  

delta through high yielding medium-depth tube-wells equipped with  

turbine pumps is 129 TMC.  It elaborated that the yearly quantity of  

groundwater that can be extracted by using centrifugal pumps in  

the Cauvery sub-basin, Vennar sub-basin and in the new delta was  

33.7 TMC, 5.4 TMC and 32.5 TMC respectively.  Additionally, a  

quantity of 56.5 TMC of groundwater per year can also be made  

available in the Cauvery sub-basin by lowering seasonally  

groundwater level to 10 meters depth below the regional  

groundwater level and substituting high yielding medium-depth  

tube-wells equipped with turbines for the low yield filter points with  

centrifugal pumps.  This finding, however, was criticized by Tamil  

Nadu as impracticable and unworkable, more particularly in view of  

the high cost involved in purchasing the equipments suggested and  

in lowering the depth upto 10 meters by different cultivators in the

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Delta. The State of Karnataka, however, supported the  

recommendation of the UNDP with the observation that if the same  

would have been implemented timely, the aquifers in the Delta  

would have been re-charged by North-East monsoon rainfall which  

could be utilized during the period from June to October next year.  

194. The Tribunal took note of the study conducted by a team of  

the Central Ground Water Board of the utilization of groundwater  

with special reference to the Delta area in Tamil Nadu which  

indicated that the groundwater potential available from the Delta  

was to the extent of 64 TMC which included 5 TMC from deep  

acquifer (upto 100 meters deep). The Tribunal also took note of the  

report by Mr. W. Barber, Consultant, World Bank on the  

Groundwater Resources of the Cauvery Delta which not only  

indicated the Gross Ground Water Abstractions from Cauvery Delta  

from 1971 to 1983 but also estimated the available groundwater to  

be 51.56 TMC.  The Tribunal, on the basis of the reports submitted  

by the UNDP, Central Ground Water Board and Mr. Barber of World  

Bank, observed that the same, to a great extent, supported the  

stand of Tamil Nadu that the re-charge of groundwater in the Delta  

area was mainly due to releases from Mettur reservoir.   It, however,

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marked the admission of the State in its pleadings that the total  

groundwater extraction during the year 1989 was approximately  

28.4 TMC in the Cauvery sub-basin, 7.3 TMC in the Vennar sub-

basin and 11.3 TMC in the Grand Anicut Canal area (new Delta  

area) totaling 47 TMC. The statement of Tamil Nadu in its pleadings  

that in the old Delta there was scope for conjunctive use of  

groundwater to the extent of 30 TMC was recorded. Tamil Nadu,  

however, belatedly questioned the findings of the UNDP to be not  

fully representative of the area surveyed and in view of better  

parameters for revaluation of the aquifers, as suggested by the  

Ground Water Resource Estimation Committee. But the Tribunal in  

absence of any evidence adduced by Tamil Nadu to this effect,  

preferred not to discard the reports of the UNDP.  The issue was  

tested by the Tribunal in the context of the variety of crops grown  

and the rainfall received through the South-West monsoon and  

North-East monsoon.  It concluded from the reports of the Irrigation  

Commission as well as of the Cauvery Fact Finding Committee that  

the North-East monsoon was irregular and subject to frequent  

failures often accompanied with cyclonic formations in the Bay of  

Bengal resulting in high floods as well as large surface runoff with

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many a times even causing damage to the standing paddy crop. On  

a scrutiny of the report of the UNDP and the Central Ground Water  

Board, the Tribunal concluded that as per the former, 39.2 TMC of  

the groundwater was available in the old Delta, whereas as per the  

latter, the stock was limited to 30 TMC. The Tribunal noted that  

this was in comparison to 28.79 TMC as estimated by Mr. Barber.   

It noted as well that qua the new Delta, UNDP had estimated at  

32.6 TMC and Mr. Barber had estimated at 22.77 TMC.  In the  

background of such exhaustive studies by various agencies, the  

Tribunal observed that in a normal year when there would be  

regular releases of water from Mettur, the bulk of contribution to  

the groundwater in the Cauvery sub-basin would be from such  

releases, but in any case, the contribution from surface irrigation  

and rainfall could not be overlooked.  All these notwithstanding, the  

Tribunal, considering the severe limitation in the assessment of  

groundwater resource, made a safe estimate of 20 TMC which could  

be used by Tamil Nadu conjunctively with surface water.  The  

Tribunal clarified that this quantum was arrived at after excluding  

the component of groundwater re-charge from river water by lateral  

infiltration.  

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P.5 The principles of apportionment  

195. The principles of apportionment of the waters of Cauvery, the  

gravamen of the dispute, next engaged the attention of the Tribunal.   

The fact that such principles for distribution of inter-state or  

international rivers like the principles of natural justice had been  

evolved and developed by the Courts from time to time over  

centuries, while adjudicating water disputes between different  

States or Nations were noted as the starting premise.  The Tribunal  

acknowledged that such disputes were directly linked with the  

development in different spheres and demands for water from such  

inter-state or international rivers could be traced to the rise in  

population. It reminisced to record that most of the ancient cities  

and civilizations had grown on the banks of such rivers because of  

the fertile land and easy communication but during the middle of  

the 19th century the industrial revolution and allied development,  

which brought prosperity to mankind, also bred conflict and  

dispute in respect of sharing of waters of such inter-State and  

international rivers.  The perennial dissension between the upper  

riparian States claiming an absolute right on the flow of water

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passing through their territories and the lower riparian States  

claiming on the principle of right of easement was taken note of.  

196. The Tribunal ruminated that the resultant dispute and             

disharmony called for a balanced approach keeping in mind the  

interest of all the riparian states, the inherent question to be  

answered being which State should get what proportion of water  

out of the total yield of the river concerned.  Noticing that the  

demands of different States when much higher than the total  

available water in the basin in question posed formidable  

challenges, the Tribunal recalled that the dispute about sharing of  

water of deficit river like Cauvery was more than one and a half  

century old as attested by the recorded facts. It took into account  

the assertion of the State of Tamil Nadu based on prescriptive right  

over the flows of river Cauvery as well as its right of prior  

appropriation being a lower riparian State. In endorsement of this  

plea, the State had relied on the relevant observations with regard  

to the doctrine of appropriation made in the report of the Indus  

Commission of the year 1942 to the effect that ―priority of  

appropriation gives superiority of right‖. The Commission had  

remarked that the common law rule of riparian rights was

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completely destructive of equitable apportionment for under that  

rule, the upper owner could hardly take any share, far less than his  

fair share of water of the river for the purposes of irrigation. In  

comparison, the doctrine of appropriation was consistent with  

equitable apportionment provided that the prior appropriator was  

not allowed to exceed reasonable requirements. The fact that this  

doctrine was dictated by considerations of public interest was  

noticed as well. The view of the U.S. Supreme Court in State of  

Wyoming v. State of Colorado (supra) to the effect that the  

cardinal rule of the doctrine that priority of appropriation gives  

superiority of right was underlined. The Tribunal construed that the  

priority of appropriation was a concept different from past  

utilization of waters of the basin by one State or the other. It noted  

as well the reservation of the Supreme Court of United States in  

State of Nebraska v. State of Wyoming (supra) that for an  

allocation between the appropriating States to be just and  

equitable, strict adherence to the priority rule might not be possible  

though it may pose as the guiding principle. The Tribunal recorded  

that past utilization or existing utilization had also been recognized  

as a relevant factor in a proceeding for apportionment of waters of

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an inter-state or international river and conceptually was a part of  

the evolution and development of river basin linked with the history  

thereof. It mentioned as well that though past utilization and  

existing utilization was a relevant factor in the matter of  

apportionment, yet there could be prevalent circumstances in other  

riparian States outweighing the prevailing practice so much so that  

in such an eventuality, such practice or use would be required to be  

restricted or modified in a reasonable manner.   

197. The Tribunal also took note of the observations of the Krishna  

Water Disputes Tribunal in its report under the heading ―Protection  

of Existing Uses‖ to the effect that in fixing the equitable share of  

the States, the claims of such existing uses should be allowed  

before claims for future uses are taken up for consideration. It was,  

however, reiterated that priority of appropriation, though the  

guiding rule, was not conclusive in equitable allocation.  It recalled  

the observations of the U.S. Supreme Court in State of Nebraska  

v. State of Wyoming (supra) where junior uses of Colorado were  

allowed to prevail over the senior uses of Nebraska having regard to  

Colorado‘s counter-veiling equities and established economy based  

on existing uses of water. The Krishna Water Disputes Tribunal‘s

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remark that equitable apportionment can take into account only  

such requirements for prospective uses as are reasonable, having  

regard to the available supply and the needs of the other States,  

was referred to.   

198. The Tribunal also adverted to the discussion recorded by the  

Narmada Water Disputes Tribunal in its report where it dwelt upon  

the “Relevant Factors in the Balancing Process”, where,  

amongst others, various determinants like extent of dependence of  

the riverine dwellers on the river flow, the size of the river‘s  

watershed or drainage area and the possibility of maintaining a  

sustained flow through the controlled use of flood waters, seasonal  

variations in diversions, availability of storage facilities or ability to  

construct them, availability of other resources, etc. had been  

enumerated. The Tribunal noticed the remark in the report that the  

doctrine of equitable apportionment cannot be put in the narrow  

strait-jacket of a fixed formula and that in determining the just and  

reasonable share of the interested States, regard must be had to  

these factors and beyond so that the allocation will be made  

according to their relative economic and social needs. In this  

regard, the volume of the stream, the water uses already been made

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by the State concerned, the respective areas of land yet to be  

watered, the physical and climatic characteristics of the States, the  

relative productivity of land in the States, the State-wise drainage,  

the population dependent on the water supply and degree of their  

dependence, extent of evaporation in each State and the avoidance  

of unnecessary waste in the utilization of water were also factors to  

be applied.  

199. The Tribunal also referred to the reports of the Godavari Water  

Disputes Tribunal and Ravi and Bias Water Tribunal to underline  

the primacy of the recognition of equal rights of the contending  

States to establish justice between them over the claim of absolute  

proprietary rights in river waters. The reports explained that equal  

right, however, did not mean an equal division of water but implied  

an equitable apportionment of the benefits of the river, each unit  

getting a fair share.  

200. With the third view gaining increased recognition and  

application in the resolution of water disputes involving the issue of  

allocation and distribution of waters of an inter-state river, the  

Tribunal in reiteration noted the observations of the U.S. Supreme

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Court in Kansas v. Colorado (supra) that the right of flowing water  

is well-settled to be a right incident to property in the land and it is  

a right publici juris and is of such character that whilst it is  

common and equal to all through whose land it runs and that no  

one can obstruct or divert it, yet it is one of the beneficial gifts of  

providence so that each proprietor has a right to a just and  

reasonable use of it as it passes through his land as long as it is not  

wholly obstructed or diverted or no larger appropriation of the water  

running through it is made than a just and reasonable use. The  

Tribunal further held that it cannot be said to be wrongful or  

injurious to a proprietor lower down if there is jus case. The theme  

was further elaborated in Colorado v. Kansas (supra) with the  

elaboration that the lower State is not entitled to have the stream  

flow as it would in nature regardless of the need or use and if then  

the upper State is devoting the water to a beneficial use, the  

question would be, in the light of existing conditions in both the  

States, whether and to what extent her action, injures the lower  

State and her citizens by depriving them of a like or an actually  

valuable, beneficial use. The observation of the U.S. Supreme Court  

in State of New Jersey (supra) that a river is more than an

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amenity being a treasure and that the competing riparian states  

have real and substantial interests in it requiring best reconciliation  

thereof was highlighted. It noted the exposition of the U.S. Supreme  

Court in State of Connecticut (supra) that ―equality of right‖  

applied to settle disputes with regard to allocation of water would  

not connote equal division of waters of an inter-State stream but  

would mean that the principles of right and equality should be  

invoked having regard to the ―equal level or plane‖ on which all the  

States stand, in point of power and right under the Constitutional  

system.  

201. The determination of the U.S. Supreme Court in State of  

Colorado v. State of New Mexico (supra) that the rule of priority  

should not be strictly applied where it would work more hardship  

on the junior user than it would bestow benefits on the senior user,  

was recorded. The opinion of Chief Justice Burger in the said  

decision to the effect that each State through which the river passes  

has a right to the benefit of water, but it is for the Court, as a  

matter of discretion, to measure their relative rights and obligations  

and to apportion the available water equitably, was taken note of in  

particular. The following passage from the Halsbury‘s Laws of

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England, 4th Edition, Vol. 49(2), paragraph 121 was extracted to  

underscore the parity in the rights of co-riparian claimants to a  

reasonable enjoyment and use of the water:-  

―121. Rights and duties as to quality of water.  The right  of a Riparian owner to the flow of water is subject to  certain qualifications with respect to the quantity of  water which he is entitled to receive.  The right is subject  to the similar rights of other Riparian owners on the  same stream to the reasonable enjoyment of it, and each  Riparian owner has a right of action in respect of any  unreasonable use of the water by another Riparian  

owner...  

A Riparian owner must not use and apply the water so as  to cause any material injury or annoyance to his  neighbours opposite, above or below him, who have equal  rights to the use of the water and an equal duty towards  him.‖  

202. The Tribunal next marked the advent of the Helsinki Rules of  

1966 which rejected the Harmon doctrine and laid emphasis on the  

need of equitable utilization of such international rivers. The said  

Rules recognize equitable use of water by each basin State setting  

out the factors, not exhaustive though, to be collectively taken into  

consideration for working out the reasonable and equitable share of  

the riparian states. The indicated factors, inter alia, include the  

geography of the basin, the hydrology of the basin, the climate, past  

utilization of waters, economic and social needs of each basin State,

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population dependent on the waters of the basin in each basin  

State, availability of other resources and the degree to which the  

needs of a basin State may be satisfied without causing substantial  

injury to a co-basin State. The emphasis clearly is that in  

determining the reasonable and equitable share, all relevant factors  

are to be considered together and a conclusion is to be reached on  

the whole.  

203. The Tribunal, in this regard, recalled that this Court in the  

Presidential Reference in which the “Karnataka Cauvery Basin  

Irrigation Protection Ordinance, 1991” fell for scrutiny had  

reiterated the same law and principles to govern the equitable  

allocation of water of an inter-state river between the different  

riparian States. Paragraph 72 of the decision rendered by this Court  

in the said proceedings was extracted.   

204.  In the background of the above exposition, the Tribunal  

recorded that so long as the river flows are not wholly obstructed or  

diverted or  appropriation of the water by the upper riparian States  

is not more than just and reasonable use, it cannot be said to be  

wrongful or injurious to the right of the lower riparian State. It

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stated that equitable apportionment would, thus, protect only those  

rights to the water that were reasonably required and applied  

especially in those cases where water was scarce or limited. It  

emphasized that the water of a river being a treasure in a sense,  

wasteful or inefficient use thereof cannot be approved and only  

diligence and good faith would keep the privilege alive. It, however,  

reflected that the theory of equitable apportionment pre-supposed  

equitable and not equal rights and any order, direction, agreement  

or treaty has to take into consideration the economic and social  

needs of different riparian States. It reiterated that while  

determining the reasonable and equitable share, all relevant factors  

are to be cumulatively considered.   

205.  The Tribunal also took into consideration the report of the  

71st Conference of the International Law Association held in Berlin  

in August 2004 where the relevant factors necessary for  

determining an equitable and reasonable use were again outlined.  

The factors mentioned in the Helsinki Rules were retained along  

with precise emphasis on the precept of collective consideration  

thereof for reaching a conclusion qua apportionment of just and  

equitable share of water of an inter-state river. Apart also from

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adverting to the ―The Campione Consolidation of the ILA Rules on  

International Water Resources, 1966-1999‖ which substantially  

reiterated the above principles, the Tribunal also reminded itself of  

the verdict of this Court that it was an acknowledged principle of  

distribution and allocation of waters between the riparian States  

that the same has to be done on the basis of equitable share of each  

state, however leaving it open to decide such equitable share  

depending on the facts of each case. The Tribunal, thus, concluded  

that no doubt that prior use has to be given due weight because  

cultivators have been irrigating their lands in the lower riparian  

State as in the Delta in the case in hand for centuries, but that  

factor has to be taken into consideration along with several other  

factors for the purpose of determination of the just and equitable  

share of water amongst the competing riparian states, more  

particularly when the resources in demand were in short supply.  

The Tribunal, therefore, held the view that though past utilization  

was a relevant factor, yet it was possible that the circumstances in  

the other riparian States could be such that their demands for  

reasonable share might outweigh such past utilization of any  

particular riparian State and, consequently, the Courts and

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Tribunals would have ample power for taking into consideration the  

overall relevant circumstances to curtail and modify the past uses  

by any riparian State. This was more so in view of Article IV of the  

Helsinki Rules which clearly indicate that each basin state is  

entitled within its territory to a reasonable and equitable share in  

the beneficial uses of the waters of an international drainage basin.  

206. Reverting to the contextual facts and the controversy founded  

thereon, the Tribunal analyzed the existing scenario and observed  

that prior to the year 1924, the river Cauvery was in a state of flow  

in the sense that whatever water came from the source and the  

tributaries in the State of Mysore and Madras used to pass through  

the Delta and the utilization of Cauvery water within the State of  

Mysore was negligible compared to that in the State of Madras  

especially in the Delta area. It further observed that the utilization  

of Cauvery water so far as Kerala was concerned was virtually nil.  

The situation started changing with the constructions of reservoirs  

in Mysore and Mettur in Madras for which the flow of water of  

Cauvery was regulated to a great extent.

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207. The Tribunal apprised itself of the background and observed  

that the main development and utilization of Cauvery basin before  

1924 occurred in Madras mostly in the Delta area and it being the  

lower riparian State, enjoyed almost full flow of river Cauvery as  

well as its tributaries. It noted that as per the report submitted by  

the Cauvery Fact Finding Committee in the year 1972, the inter se  

utilization of waters of Cauvery by Tamil Nadu including the  

Karaikal region of Union Territory of Puducherry, Mysore and  

Kerala used to be 566.60 TMC, 176.82 TMC and 5 TMC  

respectively. In the background of the Agreements of 1892 and  

1924, the Tribunal recapitulated the persistent protests of the State  

of Karnataka qua the restraints put on it on the use of the waters of  

the Cauvery river for which it was not possible on its part to irrigate  

lands even as contemplated under the Agreement of 1924. The plea  

based on judicially enounced view that neither the upper riparian  

State can claim paramount right to appropriate more water than  

what is its reasonable requirement nor the lower riparian State can  

claim any prescriptive right to the flow of water was noted. The  

Tribunal, thus, accepted, as its guide, the principle that the waters  

of an inter-State or international river are to be shared in a just and

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equitable manner so as to serve the need and necessity of each  

riparian State.   

P.6 Determination of "irrigated areas" in Tamil Nadu and  Karnataka  

 208. With reference to the norms suggested by the party-States for  

apportionment of Cauvery waters for pre and post Agreement of  

1924 in the context of the irrigated areas corresponding to this time  

phase, the Tribunal enumerated the following four categories, the  

needs of irrigation whereof were required to be addressed:-   

―(i) Areas which were developed before the agreement of  the year 1924.    

(ii)  Areas which have been contemplated for development  in terms of the agreement of the year 1924.    

(iii)  Areas which have been developed outside the  agreement from 1924 upto 2.6.1990, the date of the  constitution of the Tribunal. (i.e. from 1924 to 1990)    

(iv)  Areas which may be allowed to be irrigated on the  principle of equitable apportionment.‖  

 

209. Having laid the preface for the discernment of the areas  

developed for irrigation in the competing States prior to, under and  

beyond the Agreement of 1924 and also areas which could be  

allowed to be irrigated on the principle of equitable apportionment,

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the Tribunal took up the claims of the competing States in  

succession.  

210. Qua the areas developed by Madras/Tamil Nadu, it principally  

adjudged the entitlements on the touchstone of Clauses 10(v),  

10(xii) and 10(xiv) of the Agreement of 1924 together with the  

Administrative Report, 1923-24, CFFC Report, 1972, C.C. Patel  

Committee Report as well as the reports of the Irrigation  

Commission and National Commission for Agriculture, 1976.  While  

accounting for the water requirement for the second crop in the  

irrigated areas grown prior to and in terms of the 1924 Agreement,  

the same was disallowed for the areas beyond it.  Having regard to  

the scarcity of water resources in the Cauvery Basin and the  

principle of equitable apportionment, it noted that the practice of  

double crops in the same field during an agricultural season  

required more water and, thus, the areas where the cultivable land  

is more and the availability of water is a constraint, the projects are  

designed to cover larger areas for cultivation of light irrigated crops.  

It observed that since paddy was high water consuming crop, it  

would cover smaller areas than semi-dry crops which needed lesser  

water for which the extent of areas could sometimes be 2 to 3 times.  

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Having regard to the fact that in a country like India, where the  

bulk of population was engaged in agriculture for its livelihood, the  

Government policy was to cover as large area as possible, a concept  

known as ―Extensive Irrigation‖.   It was of the view that in a water  

deficit basin like Cauvery, the annual intensity of irrigation (Annual  

Intensity of Irrigation means acreage – area under irrigation) is a  

very significant factor and needed to be considered keeping in view  

the large number of small farmers for sustenance of their livelihood  

and bearing that in mind, it construed it to be proper to restrict the  

annual intensity of irrigation to 100% and, accordingly, allowed the  

extent of areas to be irrigated in each State depending upon the  

availability of water.  It referred to the CFFC Report vis-a-vis Tamil  

Nadu wherein it was observed qua the crops of Kuruvai, Samba and  

Thaladi that savings could be effected by (i) restricting the double  

crop paddy area; (ii) introduction of shorter duration variety in  

place of  Samba and; (iii) growing crops requiring less water.  

211.  The Tribunal, thus, determined the necessity to restrict the  

double crop area as far as possible.  Further, the recommendation  

of the National Commission on Agriculture, 1976 to the effect that  

rice should be grown in no rainy season area or low rainfall areas

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only if the available irrigation supplies cannot be put to more  

economic use for other crops was noted in endorsement of this  

finding. It noted as well the opinion of Dr. M.S. Swaminathan,  

witness for the State of Tamil Nadu, to the same effect.    

212. Keeping in mind the fair and equitable share principle, it  

expressed that in order to assess reasonable water requirements, it  

would be essential to first consider the extent of areas which had  

already been developed vis-a-vis the development permitted under  

the Agreement and thereafter consider the just and fair claim of  

development for irrigation as placed by the party-States before it.  It  

noted that the total claim of the party-States for development of  

irrigation in the territories did far exceed the availability of waters  

which called for imperative restrictions. It mentioned that in the  

State of Tamil Nadu, the entire development in the past and future  

was based on paddy cultivation which was a high water consuming  

crop and the State had almost reached the ultimate potential of its  

irrigation development by 1974 as was evident from the CFFC  

Report and also as claimed by it. In contrast, qua Karnataka, the  

Tribunal marked that in the past, it had been growing paddy  

wherever it could get irrigation facility but could not complete the

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development as contemplated under the 1924 Agreement by 1974.   

It, however, noted that the State of Karnataka had embarked on the  

construction of reservoir schemes some years previous to the  

completion of 50 years of the 1924 Agreement and along with the  

progress of the reservoirs, kept on releasing waters to the newly  

opened areas for irrigation so that by the year 1990, its  

contemplated development was almost thrice in extent to the  

development achieved in 1974.  The fact that in comparison, Kerala  

could hardly mark any development of irrigation except under  

minor irrigation in a total area of about 50,000 acres till 1990, was  

noticed. The Tribunal took up the task of ascertaining the extent of  

development which could be allowed to the party-States and the  

crop water requirement therefor so that a fair and reasonable  

allocation of surplus water would become possible.  It observed that  

for equitable distribution, one of the considerations ought to be the  

existing development of irrigation.  Keeping this in view, the double  

crop developed beyond the provisions of the 1924 Agreement,  

whether in Tamil Nadu or in Karnataka, was not taken note of.  The  

Tribunal was, in this regard, also impelled by the fact that equity  

demanded that the farming families should at least be having one

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single crop which they could raise for their livelihood with the  

support of irrigation facilities and thereby derive the benefit from  

the natural river water resources which was common to all.  In this  

respect, the Tribunal underlined that the paddy crop should be so  

planned as to make maximum advantage of the rainy season in the  

Cauvery basin area, relaxation however being extended to areas  

over which second paddy crop was being grown prior to the  

Agreement of 1924 as well as second crop permitted by the said  

Agreement by way of extension. While identifying the areas  

developed or undergoing development in the State of Tamil Nadu  

beyond the entitlements contemplated in the 1924 Agreement, the  

Tribunal applied the following criteria, namely, no double  

crop/perennial crop de hors the 1924 Agreement; no area for  

summer paddy; the area of summer paddy raised prior to 1924 to  

be replaced by semi-dry crop; annual intensity of irrigation to be  

restricted to 100%; cropping period to be restricted within the  

irrigation season, i.e., from 1st June to 31st January and ambitious  

Lift Irrigation Schemes to be discouraged.  Apart from this, the  

Tribunal excluded the areas beyond the Cauvery Basin as well as  

those utilized for high water consuming crop like sugarcane.

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Keeping in view the shortfall in supply of water, the Tribunal, based  

on contemporaneous data, did also scale down areas  

proportionately under some schemes but did account for dry areas  

sought to be catered by the corresponding projects.  

213. Applying these principles generally, after an exhaustive  

analysis of the relevant facts, it did fix the areas under the afore-

mentioned four categories qua Madras/Tamil Nadu as hereinbelow:    

(i)  Area under irrigation in Madras/Tamil Nadu prior to  1924 Agreement = 15.193 lakh acres.    (ii)  Area for development as per the provisions of 1924  Agreement = 6.19 lakh acres.      (iii) Area developed/under ongoing development beyond  the entitlements contemplated in the 1924 Agreement  between 1924 and 1990 = 2.06 lakh acres.  

 

214. Thus, the Tribunal under the above three heads together with  

the area developed/under minor irrigation, which it ascertained to  

be 1.25 lakh acres, determined the total area in Tamil Nadu which  

had been developed prior to 1924 along with those developed  

under ongoing development in the State beyond the entitlement  

contemplated under the 1924 Agreement upto 1990 at 24.71 lakh  

acres. As the narration to this effect would demonstrate, the

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Tribunal, while determining this area as a whole, did take note of  

the crop pattern, the locations thereof in the Basin with reference  

to the corresponding projects/schemes/channels, etc. and the  

area developed under minor irrigation.  

215. In the process of examination of the claim of the State of  

Karnataka with regard to the development of the irrigated areas in  

the State in the Cauvery Basin, the Tribunal as in the case of  

Tamil Nadu did cast its scrutiny over the same four categories,  

namely, areas developed before the Agreement of 1924; those  

contemplated for development in terms thereof; those developed  

outside the Agreement up to 02.06.1990 and the areas which  

could be allowed to be irrigated on the principle of equitable  

apportionment. It noted that at the commencement of the century,  

irrigation in the then State of Mysore was mainly from direct  

diversion channels from the rivers together with the system of tank  

irrigation which was mentionably quite widespread.  As there was  

no reservoir, the waters of the Cauvery and its tributaries like  

Kabini, Hemawathy, Harangi and Suvaranwathi used to flow  

through the State but their ultimate destination was the Delta  

area of the then State of Madras. The Tribunal mentioned that

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prior to the 1924 Agreement, irrigation in Mysore was mostly  

through Anicut Canal and minor irrigation and as admitted by the  

State of Tamil Nadu in their statement, Karnataka had developed  

only 3.14 lakh acres of land by 1924.  Karnataka, however, stated  

that its irrigated area under the projects at the time of the 1924  

Agreement was 3.1 lakh acres which increased to 3.14 acres in  

1928.  On an analysis of the facts available on record, the Tribunal  

accepted the irrigated area of the State of Karnataka before 1924  

to be 3.43 lakh acres which, of course, included areas covered by  

minor irrigation.   

216. In respect of the entitlement of the States in terms of the  

Agreement of 1924, the Tribunal referred to, in particular, Clauses  

10(iv), (xii), (xiii) & (xiv) to determine the new development of  

irrigation and extension of irrigation thereunder.  It noted that  

there was no time limit for the envisaged development of irrigation  

under the various clauses of the Agreement and proceeded on the  

premise that once the construction on the project envisaged under  

any term/clause thereof had been started, that ought to be  

considered as permissible even though its completion date had  

spilled over 1974.  The relevant provisions of the Agreement were

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referred to precisely to recall the entitlements of the parties thereto  

as defined thereby permitting extension/development of the areas  

for irrigation in the time to come.  To draw sustenance for the view  

that it was permissible to take account a project, the construction  

whereof had been started under any term/clause of the Agreement  

of 1924, though the completion date thereof was after 1974, the  

Tribunal referred to the decision of the U.S. Supreme Court in  

State of Wyomoing v. State of Colorado  (supra)  as well as  

Article  VIII (2)(a) of the Helsinki Rules to the effect that a project  

was entitled to priority from the date when the actual work of  

construction had begun and not from a date anterior to the time  

when there was a fixed and definite purpose to take it up and  

carry it through. On this basis, the plea of the State of Tamil Nadu  

to the contrary was negated and it was concluded that all the  

projects on which construction had started prior to 1974 would be  

covered under Category II (entitlement under the terms of the  

1924 Agreement) irrespective of the date of completion provided  

those projects did qualify otherwise under any of the clauses of the  

Agreement.  From the materials on record, the Tribunal noted that  

the development achieved by Karnataka under the 1924

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Agreement till 1974 under Clauses 10(iv), (xii), (xiii) and (xiv) taken  

together was 2.15 lakh acres, though it was entitled to achieve  

7.45 lakh acres.  It also recorded that the planned irrigated area  

claimed by Karnataka under the Agreement was 14.18 acres (net),  

i.e., single crop and 17.04 lakh acres (gross) indicating single +  

second crop.  These figures represented the statistics both prior to  

and after 1974. It was noted that the State had claimed second  

crop area under the projects involved while setting out the gross  

plan area of irrigation as 17.046 lakh acres which included 2.862  

lakh acres as second crop area.    

217. The Tribunal undertook an exhaustive exercise to examine  

the tenability of the claim under the aforementioned clauses of the  

Agreement and accepted the area permissible for development of  

irrigation under the 1924 Agreement, i.e., Category II to be 7.23  

lakh acres.  As would be evident from the table, while allowing this  

figure, the Tribunal did take into account the variety of the crops  

involved and the extent of their coverage/acreage (which included  

Kharif Paddy, Perennial Crops, Kharif semi-dry crop, Rabi-semi  

dry crop). The Tribunal recorded that like Tamil Nadu, the State of  

Karnataka had extended irrigation by way of minor irrigation and

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there was extension of new areas under the existing projects and  

new projects after 1974.   

218. Vis-a-vis the areas developed/under ongoing development in  

the State beyond the entitlements contemplated in the 1924  

Agreement upto the year 1990, the Tribunal marked the claim of  

the State of Karnataka to be 20.98 lakh acres under various  

projects.  Having regard to the date of the reference of the dispute  

to it, it adopted 1990 to be the cut-off year for considering the  

equities between the party-States in the matter of ascertaining the  

requirement of water.  It, therefore, as a corollary, decided to take  

note of the developments that had taken place in between.   

Dealing with the plea of the State of Tamil Nadu that the relevant  

date for the apportionment should be 1974 when the period of 50  

years from the date of execution of the Agreement of 1924 had  

expired, the Tribunal observed that no attempt had ever been  

made by the State of Tamil Nadu either before it or before this  

Court to contend that the areas which could be irrigated during  

the pendency of the proceedings should be those which had been  

developed by Karnataka only upto the year 1974 and on the other

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hand, the parties had pursued their claim of apportionment of  

water with reference to the constitution of the date of the Tribunal.  

219. With regard to the claim of the State of Karnataka in respect  

of the area of planned development as made by it in June, 1990 as  

20.98 lakh acres, the Tribunal observed that it included areas  

developed prior to the Agreement of 1924, permitted in terms of  

the said agreement and developed or committed for development  

outside the Agreement upto June, 1990, though such areas had  

been planned and schemes had been put into execution much  

before the cut-off year. From the data furnished by the State of  

Karnataka in support of its area of development as in June 1990  

to be 20.98 lakh acres, the Tribunal discerned that the additional  

area which was under progress for irrigation development outside  

the Agreement was 10.30 lakh acres, by that time.  

220. In the process of verification of the claim under this head,  

i.e., areas developed or under ongoing development beyond the  

entitlement under the Agreement of 1924 and upto the year 1990,  

the Tribunal examined the relevant facts qua every individual  

project and returned a finding that the State of Karnataka was

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entitled to an area of 6.91 lakh acres.  To this, an area of 1.26 lakh  

acres was allowed under minor irrigation. Thus, in all, the  

Tribunal allowed 18.85 lakh acres of area under Categories I, II  

and III, i.e., area existing under irrigation prior to 1974,  permitted  

to be developed under the different provisions of the Agreement  

and the area and minor irrigation works during the period form  

1924 to 1990.  

221. In arriving at this figure, the Tribunal did not take note of the  

development of the second crop in view of the scarcity of water in  

the Basin and considered each item of claim on the yardstick of  

merit and equity, judged on the touchstone of the entitlements  

under the Agreement and the ground realities. In many cases, it  

kept in mind the rainfall pattern and support and restricted the  

crop variety apart from suggesting the timings thereof.  The scope  

of several projects were limited/curtailed on the index of 100%  

annual intensity of irrigation and ayacuts (irrigated areas) served  

by gravity flow were generally allowed and those tended by lift  

schemes were excluded. To ensure economy of consumption of  

water, crop pattern was also suggested.  The Tribunal, however,  

clarified that though the claims of the States had been examined

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in respect of areas requiring irrigation in the four categories, none  

of these was to get any priority or precedence over the other in the  

matter of allocation of water and all were to be treated at par  

according to the respective need and necessity.   

P.7  Assessment of water for "irrigation needs" in Tamil Nadu  

and Karnataka  

222. The Tribunal next delved into the exercise of making an  

assessment of the water required for irrigation for the areas  

delineated for the competing States.  It noted that on the aspect of  

such requirement, the States had produced documents including  

information provided in the common format and had examined  

witnesses who are experts in the field. It was indicated in  

particular that having regard to the demand of the States, i.e.,   

566 TMC by Tamil Nadu, 466 TMC by Karnataka, 100 TMC by  

Kerala and 9 TMC by Union Territory of Puducherry, some  

curtailments were indispensable in view of the total yield of the  

Basin computed on 50% dependability at 740 TMC.  The Tribunal  

in order to ensure equitable share to each State, adopted the  

following considerations for the purpose:-  

―i) The State of Tamil Nadu was having three paddy  crops in the delta area as well as in some other areas. In

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the same field they were having first Kuruvai and  followed by Thaladi and in the rest, Samba crop which  takes a longer time to mature was being grown. After  examining the records it appeared that Madras/Tamil  Nadu was having Kuruvai followed by Thaladi in about  95,000 acres prior to the agreement of the year 1924 in  the delta area. From the agreement of 1924 read with its  Annexures it shall appear that the State of Madras was  allowed to extend double crop in the same field by 90,000  acres (70,000 acres in the old delta and 20,000 acres in  the Mettur Project area). The total being 1,85,000 acres.  The practice of growing double crop by the cultivators in  the aforesaid area of 95,000 acres was being followed  much before the execution of the agreement; it is difficult  to direct to discontinue that practice. Same is the  position so far the balance of 90,000 acres are concerned  because that was permitted under the terms of the  agreement and has been specifically mentioned in the  Cauvery Mettur Project Report (1921) as well. All these  aspects have been discussed in earlier chapters. But it is  an admitted position that State of Madras/Tamil Nadu  with the copious flows of water being available started  growing double crop of paddy in the same field in  different areas. The total of such areas has been  discussed in earlier chapters. Similarly Karnataka also  followed a practice of growing double crops which were  not permitted by the agreement. In this background it is  considered necessary in the end of justice not to take  note for the purpose of apportioning the waters of inter- State river Cauvery in respect of growing second paddy  crop or any other crop in the same field in the same  agriculture year except in the areas in which these  practices were being followed prior to 1924 agreement or  was specifically permitted under the terms of the  

agreement.  

ii) The State of Karnataka under the terms of the  agreement of the year 1924 was allowed to grow sugar- cane only on 40,000 acres which it has raised to about

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70,000 to 90,000 acres. It is well known that crop like  sugarcane requires much more water, affecting equitable  distribution of waters. Therefore, note is being taken of  areas for sugarcane only upto 40000 acres as provided in  the agreement for the purpose of apportioning the waters  

of inter-State river Cauvery .  

iii) It is admitted position that both the States were  having summer crop including summer paddy from the  waters of river Cauvery. When there is so much scarcity  of water in the basin, they have to be restricted from  growing any summer paddy except in some area where it  was being grown prior to 1924 agreement, even that is to  be replaced by any light irrigated crop within the  

irrigation season.  

iv) The delta of water claimed on behalf of the two  States in respect of different crops including paddy have  to be reduced in view of the new variety of paddy and  other inputs which have been developed of late which  

require lesser delta of water.   

v) Trans-basin diversion takes out the water of the  basin to another basin. As such no note is being taken  for the purpose of determining the need and the equitable  share of the each State in the waters of the inter-State  river Cauvery in respect of any trans-basin diversion  

already made or proposed for providing extra waters.  

vi) Lift schemes will not be considered for water  allocation.‖  

223. The stand of the two States, i.e., Tamil Nadu and Karnataka,  

that admittedly the water requirement of the crops over the years  

(after 1920) have been reduced with the new variety of seeds of  

paddy and semi-dry and dry crops was recorded.  The position  

taken by the State of Karnataka that it was not going to grow wet

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crop which consumed more water in the new project areas and that  

only semi-dry crops could be grown thereafter and water would be  

provided according to the requirements of the plans was noted as  

well.  After the examination of the expert witnesses produced by the  

States and in course of the arguments, the Tribunal, by its order  

dated 12.11.2002, required the States to file affidavits furnishing  

details of the water requirement as well as the crops which they  

were growing with an indication of the minimum crop water  

requirement in view of the scarcity of water in river Cauvery.  

Resultantly, Tamil Nadu filed its affidavit on 08.07.2004 (Ext. TN  

1665) and Karnataka did so on 28.03.2003 (Ext. KAR 518)  

providing the details of, amongst others, the crops, the  

requirements of water including the Delta (water depth) required in  

different seasons in different projects and also supported the data  

furnished with various documents. It is necessary to state here that  

the acceptance of Tamil Nadu‘s affidavit has been seriously  

questioned before on the simon pure reason that the deponent was  

not made available for cross-examination. In defence of the  

affidavit, it is the stand of the State of Tamil Nadu that it was a  

compilation of all that had been brought on record earlier. We have

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already dealt with the same. We only repeat that what is admissible  

having already been recorded on any public report shall alone be  

looked into.    

224. The Tribunal mentioned that till 1928, the States of Mysore  

and Madras did resort to age old cultivation mostly of paddy crop  

wherever irrigation facilities were available in the Basin and  

whereas in Mysore, the paddy cultivation was provided irrigation  

through anicut canals or tanks, the same was the case also in  

Tamil Nadu where bulk of paddy cultivation was in the Cauvery  

Delta Area fed by Grand Anicut and through other Anicuts across  

Cauvery, Bhavani and Amaravathi and later on, with the  

installation of the Krishna Raja Sagara Reservoir (KRS) and the  

Mettur Reservoir as per the provisions of the 1924 Agreement,  

Mysore and Madras respectively extended their irrigation to new  

areas. The Tribunal noted that though after the construction of  

these two major reservoirs facilitating large scale irrigation facilities,  

the bulk of cultivation in both the States remained confined to  

Paddy crop, yet in Karnataka sugarcane which is a perennial crop  

was also resorted to.

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225. The Tribunal next took on record the existing crops of the two  

States as per the information furnished in their common formats.   

Qua Tamil Nadu, it recorded that in respect of the Cauvery Delta  

system, ―Kuruvai‖ and ―Thaladi‖ crops of paddy and Samba crops  

were being grown. In other projects of the State, sugarcane, banana  

and other crops (groundnut and garden crop) had been introduced  

from 1980 onwards.  Besides, in the Anicut system, summer paddy  

in some projects had also been introduced. Tamil Nadu in its  

common format indicated as well that the normal pattern in the  

Cauvery Basin was to raise the first crop of short duration paddy  

known as ―Kurubhai‖ in June with the waters of South-West  

monsoon flowing down the river whereafter a second crop of paddy  

of medium term duration known as ―Thaladi‖ was grown on the  

same area with the benefit of North-East monsoon to be harvested  

by January – February.  It was stated that in the rest of the areas,  

only one single crop of paddy of long term duration known as  

―Samba‖ was grown from July/August to be harvested in  

December/January.  In addition thereto, in other riverine tracks  

subject to availability of supply, two paddy crops were being grown  

followed by a cash crop like green gram and black gram.  

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226. Karnataka, in its statement, elaborated on the crop pattern by  

indicating that in the Cauvery Basin in the State, Ragi, Jawar,  

Sesame, Groundnut, Redgram and short duration pulses were  

common Kharif crops (monsoon crops) under rain fed conditions  

and in some areas, where there were pockets of retentive soils or  

where late rain occurred, some Rabi crops like Jawar, Bengalgram  

and cotton were being cultivated. It was indicated as well that   

failure of rains was very common in these areas which were, as  

such, severely drought prone for which appropriate doses of  

irrigation were necessary to help increase the productivity and  

stability of the yield.  It was explained that in the Cauvery Basin,  

particularly in the old irrigation projects in Karnataka, rice and  

sugarcane were the main crops under irrigation, but in years of  

inadequate monsoons, rice was discouraged and light irrigated  

crops like ragi, groundnut, etc. were grown in rabi/summer.   

Karnataka explained further that in the new irrigation projects,  

there was no provision to grow paddy even during Kharif season  

except in limited areas to a limited extent.  It was underlined that  

irrigation in the State, including the Cauvery Basin Projects, was  

aimed at extensive rather than intensive use of water to afford

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protection to the drought affected areas.  It was also mentioned that  

in all the new projects, emphasis was on the growing of light  

irrigated crops and that cropping pattern was largely Kharif and to  

a limited extent Rabi.  Karnataka stated that in the irrigated areas,  

rice was the pre-dominant crop, whereas in the light irrigated areas,   

Ragi was the main crop followed by maize and potato and that  

depending on the availability of water, sugarcane, mulberry,  

coconut and other fruit crops were also grown. The Tribunal  

referred to the report of the National Commission of Agriculture,  

1976 which mentioned that in India, rice was grown in about 40%  

of the irrigated area under all crops and that rice crop was the  

largest consumer of irrigation water accounting for 50% of the total  

irrigation supply, next to that it was wheat which consumed 15%  

followed by other cereals which accounted for 12% of the irrigation  

supplies.  The report, as the Tribunal has noted, inter alia, recorded  

that in the southern States, wherever the heavier black cotton soil  

was located in the valleys and the lighter red soils were higher up, it  

was a good arrangement to confine growing rice in the valleys and  

reserving the lighter soils for light irrigated crops, as otherwise  

apart from consuming more water, due to greater percolation

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losses, the percolated water would make the heavy soil lower down  

soggy, thereby rendering it unfit for growing any crop other than  

rice.  The Tribunal noted the view of the National Commission on  

Agriculture that rice should be grown preferably where there was  

good support of rainfall which had a permeability of less than 5 mm  

per day and that as water resources were scanty, irrigation  

supplies, more particularly to the low rainfall areas, was required to  

be put to the most economical use to extend the benefit of irrigation  

to as large a number of people as possible. This view was  

subscribed to by Dr. M.S. Swaminathan, a renowned agricultural  

scientist, who was examined as an expert witness for the State of  

Tamil Nadu and  who endorsed the recommendation of the  

Commission that a second rice crop, particularly in the non-rainy  

season, should be grown in an area only if the irrigation supplies  

cannot be put to better use.  The witness, however, observed that  

as soil and climate in the Delta area in Tamil Nadu was very  

conducive for growing paddy, there should not be any restriction on  

the number of paddy crops grown in the same field in the same  

agricultural year.  The Tribunal was of the view that having regard  

to the principles of equitable apportionment, the approach in the

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matter of allocation ought to be balanced so much so that the  

upper riparian States have equal right to develop along with those  

located in the downstream.  It reminisced the stages of evolution of  

the principle of equitable apportionment, now recognized  

throughout the world, to meet the necessity of the dependent  

millions of riverine dwellers justifying that one crop in one  

agriculture year to every cultivator ought to be allowed.  It also  

recalled its decision to permit growing of ―Kuruvai‖ and ―Thaladi‖  

along with ―Samba‖ in the areas which were grown prior to the  

Agreement of 1924 as well as in the areas permitted by the  

Agreement of 1924.  It, however, keeping in view the shortage of  

water in the Basin, reiterated that the second crop beyond the areas  

covered by the above two categories could not be permitted. Vis-a-

vis Karnataka, the Tribunal recounted that as paddy and sugarcane  

were more water consuming crops, they had been restricted to the  

areas for the period prior to 1924 as well as permitted under the  

terms of the Agreement.  The evidence of Dr. I.C. Mahapatra, the  

expert witness for the State of Karnataka, that a suitable cropping  

pattern in the State would include ragi, pulses, oil seeds, sugarcane  

and one crop of rice along with horticultural crops of fruits, flowers

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and useful areas was taken note of.  His testimony to the effect that  

two crops of rice which were being cultivated in some parts of  

Karnataka ought to be discouraged was also accounted for.  The  

Tribunal took on record the statement of this witness to the effect  

that Tamil Nadu had two or three crops of rice in different parts of  

the State as the temperature in the Cauvery Delta was not a  

limiting factor.  The witness, however, emphasized on the rainfall  

pattern to design the cropping model depending on the relation to  

water availability.  In response to a query, this witness observed  

that the farmers of Tamil Nadu were anxious to grow Kuruvai crop,  

as it was a short term crop and its cultivation process in putting  

fields saplings, etc. could be started by the end of June.  The  

Tribunal mentioned that for growing Kuruvai, the State of Tamil  

Nadu was primarily dependent on the release of water by Karnataka  

to Mettur reservoir.  

227. The Tribunal next adverted to the evidence of Dr. J.S. Kanwar,  

expert witness on behalf of the State of Karnataka, who, in his  

affidavit, analyzed the various aspects of managing agriculture in  

the drought areas in the Cauvery Basin lying in the State.  It  

contemplated area receiving less than 750 mm rainfall over 20% of

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280    

the year as drought areas where the percentage of irrigated areas  

was less than 30% of the culturable area. The fact that 28 Taluks in  

Karnataka have been identified as drought-prone areas by the  

Irrigation Commission within the Cauvery Basin was taken note of  

by the Tribunal, more particularly with reference to the details  

thereof as furnished in the affidavit of the witness.  The testimony  

of Dr. Kanwar to the effect that the lands in Karnataka were mostly  

red sandy soil and red loamy soil which have low water holding  

capacity requiring artificial irrigation by way of artificial supplies  

and not by pattern of rainfall as is available in the drought areas of  

the States and that 28 drought prone taluqs, thus, necessarily  

needed protected irrigation for mitigating the effect of drought, was  

taken note of.  

228. The Tribunal marked the definition of ―crop water  

requirement‖ as provided in the Government of India guidelines as  

the depth of water needed for achieving full production potential.   

The fact that the crop water requirement takes note of the  

topography of the land, water in-take characteristics of the soil and  

its irrigability class besides climatic conditions was noticed.  It also  

took into account the observations of the CFFC with regard to the

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nature of crops which were grown in the two States.  In Mysore,  

mostly all the crops were grown in the Kharif season alone, and the  

extent of rabi and summer crop was very small, and the areas  

under ragi, jowar, pulses, etc., which were mostly rain-fed, were  

predominant.  For Mysore, the CFFC concluded that ragi was the  

major crop accounting for 44% of the area followed by paddy  

claiming 21%.  It mentioned as well that the crop season in the  

State for paddy was from June - July to December-January.   

229. Vis-a-vis Tamil Nadu, the Cauvery Fact Finding Committee  

expressed that the Cauvery delta was the most important  

agricultural track and almost the entire area was under paddy.  It  

was mentioned that agricultural operations in the Delta start with  

the advent of freshets (rush of fresh water) in the river with the  

commencement of South-West monsoon and the Mettur reservoir is  

opened for irrigation only when the said monsoon actively sets in.   

It affirmed that in some areas, the first crop of paddy ―Kuruvai‖ is  

grown with 105 days duration and after the harvest of this crop, a  

second shorter duration crop  known as ―Thaladi‖ is grown.  It also  

mentioned about the long term crop ―Samba‖ of 180 days duration  

which was a major crop in the Delta.  The Tribunal, in the above

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premise, observed that the practice was necessary to be changed  

and the water depths (Delta), which were provided by these States  

for their crops were required to be revised in order to ensure a fair  

deal to all the cultivators of the Basin States.  Referring to the CFFC  

Report, the Tribunal took cognizance of the fact that in the old  

channels in Karnataka, the Delta varied from 5.2 ft to 6.3 ft.  and in  

the newer projects from 5.3 ft. to 6.6 ft. which suggested that even  

in the newer systems, the high Delta indicated excessive use.  The  

Tribunal also did not disregard the observation of the CFFC that in  

the circumstances, if the Kharif Ragi could be grown under irrigated  

conditions instead of paddy, there would be saving in water without  

any economic detriment to the farmers.  The fact that Karnataka  

had categorically stated before the Tribunal that in its new projects,  

the State Government was planning to raise only semi-dry crop,  

was noted. Vis-a-vis Tamil Nadu, the Tribunal recorded that in the  

case of the Cauvery Delta system which covered the major irrigated  

area, the Delta varied from 5.3 ft. in 1901 to 4.2 ft in 1971 and in  

the new projects like Cauvery Mettur project, Lower Bhavani and  

Mettur Canals, the Delta arrived in 1971 had been in the range of 4

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283    

ft. to 5.9 ft.  The following recommendations of the Cauvery Fact  

Finding Committee to effect savings were taken note of as well:-  

(a)  Restricting the double crop paddy area.  

(b)  Introduction of short duration variety in place  

of samba.  

(c)  Growing crops requiring less water.   

230. As from the pleadings of the parties and the data furnished by  

them, it appeared to the Tribunal that excessive water was being  

used for raising of crops by the party States, it, during the course of  

hearing, on 12.11.2002, directed them as well as the Union  

Territory of Puducherry to file affidavits disclosing the steps already  

taken to reduce the requirement of water for cultivation and likely  

to be taken in near future indicating as well the minimum Delta  

that would be required for different crop varieties in their areas.  

231. Accordingly, to reiterate, Karnataka and Tamil Nadu filed their  

respective affidavits marked as Ext. KAR-518 and Ext. TN–1665 in  

which they furnished details of the parameters normally used in the  

computation of crop water requirement, i.e., crop duration, ET crop,  

puddling requirements, percolation losses, effective rainfall and

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284    

system efficiency. In the compilations so furnished, the States  

elaborated the particulars vis-a-vis their different projects/systems.   

Whereas Tamil Nadu recorded its crop water requirement to be  

444.15 TMC for an area of 25.824 lakh acres with a separate  

demand of 68.9 TMC for an area of 3.445 lakh acres under minor  

irrigation and 10 TMC on the count of reservoir evaporation losses,  

Karnataka registered a claim of 381.71 TMC for cropped area of  

25.27 lakh acres including therein 71.3 TMC for an area of 3.30  

lakh acres under minor irrigation. In addition, Karnataka  

demanded 28.158 TMC for its proposed projects covering an area of  

2.008 lakh acres to which the Tribunal responded by observing that  

these proposed projects could be considered subject to the  

availability of water after meeting the requirements of the existing  

and ongoing projects, domestic water, industrial water,  

environmental needs, etc.    

232. Before undertaking  the actual computation of the water  

requirement on the basis of the information furnished by the  

States, the Tribunal dealt with the aspect of trans basin diversion of  

waters of river Cauvery or its Tributaries. In this regard, it held a  

view that normally, all the available water in a river basin should be

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285    

utilised to meet the in-basin requirements, i.e., different beneficial  

uses like drinking water for human and animal population,  

irrigation, hydro-power generation, industrial use and  

environmental protection, etc. and that after meeting such  

requirements, if there is still any surplus of water, the same could  

be considered for transfer to other needy basin(s).  However having  

regard to the admitted position that the yield in Cauvery was much  

less than the claims by different riparian States, the Tribunal  

eventually concluded that no note can be taken of the claims made  

by the States for trans basin diversion already made or proposed for  

any purpose. In arriving at this determination, it noted that though  

in the Helsinki Rules of 1966, reference had been made to basin  

States, yet it was of the opinion that diversion could not be resorted  

to by any one of the riparian States, at the cost of other lower  

riparian States affecting their irrigation, economy and social needs.  

The view expressed by the Krishna Water Disputes Tribunal and the  

Narmada Water Disputes Tribunal, in substance, is that diversion  

of water to another watershed may be permitted, but normally in  

absence of an agreement, the prudent course may be to limit the  

diversion to the surplus water left after liberally allowing for the

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286    

pressing needs of the basin areas. Reference was also made to the  

observation of the U.S. Supreme Court in State of New Jersey v.  

State of  New York  (supra) that removal of water to a different  

watershed obviously must be allowed at times, unless the States are  

to be deprived of the most beneficial use on formal grounds.  The  

comment of the Expert Committee, 1973 headed by Shri C.C. Patel,  

as set up by the Government of India, to study the report of the  

CFFC and suggest the scope of economy in the use of Cauvery  

Water, that since the basin itself was short of water, trans-basin  

transfers were not desirable, was given due weight as well.    

233. The Tribunal, after having determined the areas in the  

Cauvery basin over which the States of Tamil Nadu and Karnataka  

were entitled to irrigate and having as well determined the nature of  

crops grown and ought to be grown, keeping in view the criteria  

applied, i.e., no double crop/perennial crop de hors the 1924  

Agreement, no summer paddy and area under summer paddy  

existing prior to 1924 to be replaced by any semi-dry crop,  

proceeded to make the apportionment of the Cauvery Waters  for  

irrigation.  In undertaking its exercise, the Tribunal took note of the  

details of the various parameters furnished by the States mainly in

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287    

respect of two categories of crops, i.e., Paddy and its varieties and  

semi-dry crops (during Kharif and Rabi season).  The parameters  

were enumerated thus:-   

  Paddy   Semi-dry crops   1. Crop duration  Crop duration   2. Puddling   Main field preparation   3. E.T. Crop   E.T. Crop    (Evapo-transpiration)  (Evapo-transpiration)     4. Percolation loss  -   5. Effective rainfall Effective rainfall   6. System efficiency System efficiency.  

234. The States of Tamil Nadu and Karnataka, as per the orders of  

the Tribunal, also filed their crop calendars. Qua Tamil Nadu, the  

duration of the three varieties of paddy were shown to be:-   

(i) Kuruvai   105 days  (ii) Thaladi   135 days  (iii)  Samba   150 days  

235. The Tribunal, with the replacement of different variety of seeds  

of Samba Paddy, observed that the duration of the said crop should  

be reduced to 135 days or near about that.  It was also of the  

opinion that ―Navarai' crop of Tamil Nadu grown between the first  

week of December and last week of March ought to be replaced by  

any light irrigated crop within the irrigation season of June -  

January.  The aspect that identical economy of water should be

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288    

practised in Amaravathi and Lower Bhavani Project was also  

stressed upon.  The Tribunal recalled that the principal crops raised  

in the Cauvery basin in Karnataka were Kharif paddy, kharif semi-

dry, i.e., ragi, maize etc; rabi semi-dry, i.e., groundnut, pulses, etc.  

together with perennial crops like sugarcane, mulberry, garden  

crops, etc. besides summer crops, i.e., rabi/summer paddy and rabi  

summer semi-dry.  In view of the scarcity of water, the Tribunal  

excluded summer paddy and summer semi-dry crops and recorded  

the view that it would be prudent on the part of Karnataka to go in  

for a paddy crop of medium duration which would give higher yield.   

The fact that the State Government had successfully persuaded the  

farmers to introduce short duration paddy variety of 120 to 130  

days which resulted in saving of about 10% water compared to the  

medium duration of the variety was noted.  It suggested that the  

State Government of Karnataka should also encourage, as far as  

possible, replacement of the area of Kharif paddy by Ragi which is a  

Kharif semi-dry crop.  On the basis of the said analysis, the  

Tribunal clearly emphasized upon the need of reduction of crop  

period to ensure economic and prudent use of water and also  

suggested modification of the crop pattern in chime therewith.

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289    

236. The Tribunal took into account the claims made by the States  

for different quantities of water vis-a-vis the corresponding stages  

required for different crops, namely:-  

1. Nursery Preparation  2. Puddling while preparing the main field.  3. Evapo Transpiration   4. Percolation Losses  5. Effective rainfall and  6. System Efficiency  

237. It was noted that in deciding the reasonable Delta (water  

depth) required for a crop, all these factors had a vital role.  On the  

aspect of land preparation, the Tribunal observed that as per  

Karnataka, its crop water requirement in respect of semi-dry crops  

was about 100 mm for field preparation in respect of semi-dry crops  

before the crops are sown and that normally the operation of sowing  

the seed was undertaken when the field was wet for easy ploughing  

and as wetting of the soil by rainfall was not certain as it depended  

upon the natural rainfall, provision for wetting the soil was to be  

made so that the sowing of the crop as per the crop calendar would  

become possible.  The Tribunal, in this regard, adopted the overall  

Delta for these crops as indicated in the project reports of  

Karnataka.

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290    

238. With regard to puddling, the Tribunal marked the emphasis of  

Tamil Nadu on the requirement of water for this factor as most of  

the areas in the basin including the Delta grow paddy. The  

Tribunal, however, accepted the data furnished by the party-States  

in their respective statements as those were construed to be  

reasonable.    

239. On the criterion of Evapo-Transpiration – E.T. Crop, the  

Tribunal noted that the scientific computation of this parameter  

depended on various factors, namely, (i) temperature along with day  

and night weather conditions; (ii) elevation/altitude of the field; (iii)  

solar radiation; (iv) sunshine hours;  (v) wind velocity; (vi)  

humidity, etc.  

240. It gathered from the Government of India guidelines issued in  

May, 1984 that the effect of climate on crop water requirements was  

given by the reference of evapo-transpiration. It referred to the  

formula to compute the Evapo-Transpiration of a particular crop  

with the observation that the said factor for a particular crop grown  

in different regions would differ because of the variation in one or  

more or several ingredients thereof. Though the Tribunal took note

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291    

of the dissension between the two States with regard to the  

applicability of the Food and Agriculture Organization, United  

Nations and the Government of India guidelines, yet it eventually  

accepted the coefficient (a factor applied for computing evapo-  

transpiration) adopted by Tamil Nadu as worked out by the  

Coimbatore Agriculture University as it yielded a lower Delta as  

compared to the one worked out on the basis of Government of  

India Guidelines.  

241. As regards the percolation losses, it took note of the  

observation of the expert witness, Dr. I.C. Mahapatra, cited by  

Karnataka, that the same could be considerably reduced by proper  

puddling of the field. The Tribunal noted that percolation losses of  

water depended on the nature of the soil, climatic condition, etc. It  

recalled that the soil of Karnataka was mostly red soil and at places  

was sandy in nature in contrast to the Tamil Nadu soil which was  

sandy loam specially in Delta, formed with the deposit of silt over  

ages and was not as porous as that of Karnataka. After taking into  

account the computations provided by Tamil Nadu for the old Delta  

system and the remaining basin area and having regard to the  

difference in the soil in the two locations, it allowed percolation

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losses per day at 2.5 mm.  In respect of Karnataka, having regard to  

the fact that paddy was being grown in low lying areas and close to  

the river course for last several decades, percolation loss was fixed  

at 3 mm per day for that State.  

242. To compute the effective rainfall, the following recognized  

factors, namely, (i) topography of land; (ii) soil characteristics of the  

land proposed to be irrigated; (iii) initial soil moisture content of the  

land; (iv) ground water characteristics; (v) rate of consumptive use  

by a crop variety; (vi) intensity, timing and duration of rainfall; (vii)  

frequency and distribution of rainfall;(viii) climatic conditions; (ix)  

variety of crop and its stage of growth; and (x)water conservation of  

practices, etc., were taken note of.   

243. After referring to the Irrigation and Drainage paper no.25 on  

―Effective rainfall in irrigated Agriculture‖ published by the Food  

and Agriculture Organization of United Nations in 1974 dealing  

with the measurement of effective rainfall and evaluation of various  

methods with regard thereto, the Tribunal concluded that effective  

rainfall would vary from place to place and hence, its computed  

value would accordingly change.  In this regard, the Tribunal noted

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that both the States had furnished their crop water requirement  

including effective rainfall in respect of their projects in  

consultation with the experts.  

244. On the aspect of system efficiency, the Tribunal registered that  

both these States as per the information furnished by them claimed  

that they had worked out their crop water requirement as was  

optimally required for different crops.  Referring to the report of the  

National Commission on Agriculture, 1976, the Tribunal observed  

that in water short areas, giving fewer than optimum number of  

waterings to a large crop area at appropriate stages of crop growth  

would result in greater overall agricultural production and,  

therefore, planning projects with optimum Delta (water depth)  

would result in higher water demand and may not be necessary in  

water paucity areas compared to an irrigation system catering for  

fewer waterings which may cover larger areas and secure greater  

overall production. The Tribunal was, thus, of the view that the  

party-States should improve their crop water management practices  

which enfold several parameters involved in achieving the desired  

results.  It suggested that both the States should improve the  

system efficiency to 65% in the existing projects which was possible

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and appropriate.  In this regard, it noted the suggestion of the C.C.  

Patel Expert Committee of the year 1972 that efficiency should be  

67% in both the States.  

245.  For the State of Tamil Nadu, the Tribunal, by taking the  

system efficiency of 65%, worked out the Delta for 3 varieties of  

paddy crop in the old Delta area and Lower Coleroon System as  

hereunder:-  

 A. Old Delta Area: Delta (Water Depth)     (i) Kuruvai - 4.00 ft.     (ii) Samba        - 3.40 ―     (iii)  Thaladi - 2.50 ―  

 B. Lower Coleroon Area:      (i) Kuruvai - 3.80 ft.     (ii) Samba  - 3.20 ―     (iii) Thaladi - 2.50 ―  

246. For the new Delta on the same yardstick, the following Delta  

was adjudged:-  

(i) Kuruvai - 4.10 ft.  (ii) Samba  - 3.90 ft.  (iii) Thaladi - 3.20 ft.  

 

247. Calculation of Delta for other project areas was also  

undertaken by applying system efficiency at 65% and finally, the  

water requirement for the State of Tamil Nadu, by adopting the

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deltas so computed for main crops and applying the same to the  

cropped areas worked out on the need basis, was quantified at  

390.85 TMC for an area of 24.71 lakh acres including reservoir  

losses of 10 TMC.  In arriving at this figure, the Tribunal rejected  

the contention of Karnataka that the demand should be limited to  

242 TMC as worked out in the Cauvery Mettur Project Report of  

1921. This was, amongst others, by accepting the explanation of  

Tamil Nadu that the state water requirement was only an estimated  

one based on very high duty factors which proved to be impractical  

and arbitrary and further the assessment of crop water requirement  

of each State was necessary to be made on present day standards.   

Further, the Tribunal was of the view that whatever be the claim of  

water made by the two States, it has to be worked out in such a  

manner that neither the crops starve nor the apportionment of the  

available water becomes an impossible task.  

248. In the process of assessing the water requirement of  

Karnataka, the Tribunal noted that the computations by it had  

been made adopting the Government of India guidelines. While  

recounting that the nature of soil as well as the crops grown in  

Karnataka were different from that of Tamil Nadu and that paddy

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and sugarcane require a lot of water, the Tribunal suggested  

improvement of system efficiency to 65% for the existing projects  

and 70% for the ongoing projects and further fixed the percolation  

losses to 3 mm per day keeping in view the opinions of various  

experts. For the computation of Delta, in respect of kharif paddy  

cultivation, the projects within the State of Karnataka in the basin  

were divided into two categories, (i)  projects falling above Krishna  

Raja Sagara reservoir where rainfall was higher; (ii)  those falling  

below Krishna Raja Sagara reservoir (including Krishna Raja Sagara  

Command) where the incidence of rainfall was comparatively less.  

249. For the existing projects, the Delta for kharif paddy was  

worked out to be 4.6 ft. and for the ongoing projects as 4.25 ft. for  

the areas falling below Krishna Raja Sagara reservoir including KRS  

command. Pertaining to the areas falling above Krishna Raja Sagara  

the Delta was worked out to be 4.3 ft. for existing projects and 4 ft.  

for the ongoing projects. Similarly, the Delta of other projects as  

regards semi-dry crops cultivated both in Kharif as well as in Rabi  

season was worked out.  For the perennial crop of sugarcane, 7½ ft.  

of Delta was permitted.  1 TMC of water for mulberry cultivation  

was also allowed.  On the basis of the above parameters, the water

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requirement of Karnataka was computed to be 250.62 TMC for  

18.85 lakh acres.  Though the assessors had advised otherwise, yet  

the Tribunal was of the view that instead of keeping of water for the  

purpose of carry over storage, it would be better to allocate the  

same amongst the parties keeping in view the principle of equity for   

use by the concerned States for any beneficial purpose according to  

the individual State‘s own priority.  

P.8 Assessment of water for "Domestic and Industrial   Purposes" in Tamil Nadu and Karnataka  

250. The Tribunal thereafter proceeded to assess the domestic and  

industrial water requirements of Karnataka and Tamil Nadu. It  

noticed that under the beneficial uses of waters of an inter-state  

river system, drinking water requirement has been given the first  

priority not only in our National Water Policy but also by the Courts  

of different countries. It noted the water supply requirement as  

recorded in the Indian Standard – ―Code of Basic Requirement for  

Water Supply Drainage and Sanitation‖ IS.1172-1993 (4th revision)  

presented by Tamil Nadu in its note wherein a minimum of 72 to  

100 litres per head per day (for short ―phpd‖) has been considered  

to be adequate for domestic needs of urban communities apart from

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non-domestic needs as flushing requirements. The said Code  

divided communities on the basis of population as also by the type  

of water supply delivery systems catering to their needs while  

specifying the water requirements which is enumerated as  

hereinbelow:-  

 

 

 

 

 

 

 

251. The Tribunal also noted the statistics furnished in the Manual  

of Water Supply and Treatment (3rd Edition) revised and updated by  

the Ministry of Urban Development, New Delhi - May 1999 setting  

out per capita water supply levels for designing schemes as under:-  

1) For communities with population up  to20,000 and without flushing system.  a) water supply through standpost  b) water supply through house service  connection.  

40 (Min.)  70 to 100   lts. phpd  

2) For communities with population  20,000 to 1,00,000 together with full  flushing system.  

100 to 150   

lts. phpd  

3) For communities with population above   

1,00,000 together with full flushing  

system.  

150 to 200   

lts. phpd  

Sl.   No.  

Classification of towns/  cities  

Recommended  maximum  

water supply  levels  

(lpcd)

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299    

 

252. Being of the view that detailed information regarding the  

population of various towns and cities, etc. in the Cauvery basin  

and also the type of water supply delivery systems were not  

available in exactness, it assessed the drinking water requirement  

of urban population as hereunder:   

(i) 25% of urban population at 135 lts. phpd  

(ii) Remaining 75% of urban population at 100 lts. phpd    

 

253. Qua the drinking water supply needs for rural areas, it  

referred to the norms adopted by the Government of India in  

National Drinking Water Mission publication Chapter–I at 40 lts.  

phpd with a breakup as follows:-  

1. Towns provided with piped water supply but  without sewerage system  

70  

2. Cities provided with piped water supply where  sewerage system is existing/contemplated  

135  

3. Metropolitan and Mega cities provided with  piped water supply where sewerage system is  existing/contemplated.  

150  

Purpose Quantity (lt.  phpd)  

Drinking 3  

Cooking 5  

Bathing 15

300

300    

 

    

 In addition, 30 lts. phpd for animals in hot and cold  

desert/eco-system in the areas as mentioned therein was  

recommended. The Tribunal, in the absence of livestock figures of  

the party-States and the Union Territory of Puducherry, premised  

that the animal population was equal to the rural human  

population and accorded 30 lts. phpd for animals and 40 lts. phpd  

for human beings aggregating 70 lts. phpd in all.  

254. The Tribunal was of the view that as drinking water  

requirement would be spread over the entire area of the basin, it  

would be reasonable to assess that 50% of the drinking water  

requirement would be met from ground water sources as it is  

generally seen that wells and tube-wells in urban and rural areas  

cater substantially to the said need. It acknowledged that though  

the States were asked to project their population for the period from  

2000 to 2025 for working out the drinking water requirement, it  

considered it to be apt to make such assessment taking 2011 to be  

the yardstick as it construed it to be sufficient. It also noticed that  

Washing utensils & house 7  

Ablution 10

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out of 100 units of water initially lifted for domestic use, only about  

20 units are consumed and the remaining 80 units returned into  

the river basin. To this effect, the Tribunal referred to the CFFC  

report as well as the report of the Godavari Water Disputes Tribunal  

which reproduced the percentage of actual utilization qua various  

heads of uses as hereunder:-  

Use Measurement  

(i)Irrigation  

use  

100 per cent of the quantity diverted or  

lifted from the river or any of the  

tributaries or from any reservoir,  

storage or canal and 100 per cent of  

evaporation losses in these storages.  

 

(ii)Power use 100 per cent of evaporation losses in  

the storage.  

 

iii)Domestic  

and municipal  

water supply  

within the  

basin  

20 per cent of the quantity of water  

diverted or lifted from the river or any of  

its tributaries or from any reservoir,  

storage or canal  

(iv)Industrial  

use within the  

basin.  

2.5 per cent of the quantity of water  

diverted or lifted from the river or any of  

its tributaries or from any reservoir,  

storage or canal.  

(v) All uses  

outside the  

100 per cent of the quantity diverted or  

lifted from the river or any of its

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302    

 

 

255. The fact that the above observations were also quoted by the  

Krishna Water Disputes Tribunal in its report was noted.  

256. Vis-a-vis the requirement of the city of Bengaluru, the  

Tribunal concluded that from the information furnished by  

Karnataka, 64% of the city area lay outside the basin and only 36%  

thereof fell within it. It, therefore, proceeded on the basis that 1/3rd  

of the city area is located within the basin and 2/3rd beyond it. After  

referring to the materials furnished by Karnataka indicating the  

existing and ongoing drinking water schemes and its demand on  

that count for Bengaluru city as 30 TMC in a projection of 20 to 25  

years, it estimated the same to be 14.52 TMC on the basis of its  

existing requirements as indicated by it as in 1990. The Tribunal  

was of the view that as 2/3rd of the Bengaluru city lay outside the  

basin, its drinking water requirement for that area only which lay  

within the Cauvery basin along with the remaining basin area and  

for drinking water requirements for urban and rural population,  

worked out by projecting the population of the basin for the year  

2011, needed to be computed. It recalled that 25% of the urban  

basin. tributaries or from any reservoir,  

storage or canal.

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population had been allowed 135 lts. phpd and 75% thereof 100 lts.  

phpd keeping in view the different categories of cities and towns  

falling in the Cauvery basin. It assigned 150 lts. phpd to Bengaluru  

city area falling within the basin and worked out the water  

requirement for the urban population to be 8.70 TMC. Vis-a-vis the  

rural population at the rate of 70 lts. phpd, the water requirement  

was quantified at 8.52 TMC, thus making the total drinking water  

requirement to be 17.72 TMC. By assuming that 50% of the  

drinking water requirement would be met from ground water, it was  

estimated that the component of river supply including transit  

losses would be 8.75 TMC. The consumptive use, i.e., 20% of the  

total for human population including livestock, was, thus  

calculated to be 1.75 TMC.   

257. By adopting the same norms, by and large, the domestic water  

requirement for the State of Tamil Nadu was computed. The total  

drinking water requirement for the projected population of 2011  

was fixed at 21.98 TMC out of which 50% was supposed to be met  

by the ground water sources and 50% from surface water which  

came to 10.99 TMC. Judged by the consumptive use at the rate of  

20%, 2.20 TMC was allocated to Tamil Nadu from surface water.

304

304    

258. The Tribunal vis-a-vis the industrial water requirement of  

Tamil Nadu recorded its demand of 7.43 TMC during 2001 and  

13.60 TMC in 2025. Having regard to the fact that industrial  

development depended on several factors including energy,  

infrastructure and massive financial investments, it was of the view  

that the projection made by the State was on the higher side. The  

Tribunal held the opinion that as the industrial water requirement  

for the year 2011 was in contemplation, 100% increase on that  

count on the existing requirement in 1990 would be reasonable  

and, on that basis, worked out the same as 9.9 TMC out of which  

the consumptive use was assessed at 2.5%. To it was added the  

water requirement of the State for existing thermal power station at  

Mettur as 54.339 cusecs with consumptive use of 9.057 cusecs  

which equals to .28 TMC. It worked out the total consumptive use  

of water for industrial purposes at .53 TMC (.25 + .28).  

259. As far as Karnataka is concerned, the Tribunal noted its  

existing industrial requirement with 3.20 TMC with the projected  

demand as 5.71 TMC and 8.02 TMC for 2000 and 2025 giving a  

growth ratio of 1.4 times. Noticing that the industrial development  

over the years had gathered a good momentum in the State and as

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305    

the industrial water requirement for the year 2011 was applied as  

the benchmark, the Tribunal awarded 6.40 TMC (3.20 x 2) towards  

this item of requirement. It was noted that the State had indicated  

that at present about 2.58 TMC would be met from ground water  

sources signifying that the total industrial water requirement from  

the Cauvery basin would be to the tune of 3.82 TMC (6.40-2.58)  

and by allowing consumptive utilisation at the rate of 2.5% of the  

total requirement, the consumptive water requirement would turn  

out to be .10 TMC.  

260. The domestic and industrial water requirements of the States  

of Karnataka and Tamil Nadu were, thus, quantified at 1.85 TMC  

and 2.73 TMC respectively.  

P.9 Assessment of water for "Environment Protection and  Inevitable Escapages into Sea" in Tamil Nadu and  Karnataka  

261. On the aspect of water requirement for Environmental  

Protection and Inevitable Escapages into sea, the Tribunal  

underlined the significance thereof by observing that the balance  

and purity of the environmental and ecological regime gets  

disturbed on account of injudicious use of available resources by  

human beings which is further aggravated by the explosion of

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306    

population and distorted life style oriented towards consumerism. It  

took note of the fact that river water pollution on account of  

industrial development, deforestation leading to siltation of  

reservoirs, excessive use of irrigation water causing water logging  

and salinity, etc. were areas of concern so much so that as a result  

of insensible application of irrigation waters, fertile lands have  

suffered from water logging and salinity. It reminded itself of its role  

of apportioning available supplies for various beneficial uses of the  

competing States and while doing so also to take note of the  

environmental requirements and to reserve some quantity of water  

for maintaining the river regime in its various reaches right upto the  

mouth of the river Cauvery. It was of the view that during the crop  

seasons, regulated releases from reservoirs would flow not only into  

the canal system but also in the river lower down which would  

normally help in maintaining the river regime and its health but  

during the non-irrigation season which coincides with the non-

monsoon summer months from February to May, conscious efforts  

were required to be made to ensure that there are minimum flows  

running in the system, particularly in the downstream. It referred to  

the testimony of Dr. B.B. Sundaresan, former Director, National

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307    

Environmental Engineering Research Institute, that lack of  

adequate river flows is an overwhelming factor contributing to  

degradation of mangroves in Cauvery estuary as mangroves thrive  

only at the fresh water – sea water interface. The Tribunal noted the  

stand of Tamil Nadu and Karnataka in this regard and recorded  

that right from 1924 onwards, a minimum flow of 1900 cusecs was  

being led into the river during non-irrigation months which was  

sufficient to meet the minimum water requirement for  

environmental purposes. It, thus, assigned 10 TMC to be reserved  

from the common pool to meet the needs of environmental aspects  

from 1st February to 31st May to be maintained from Mettur  

reservoir downward in the river Cauvery every year.  

262. On account of inevitable escapages into the sea, the Tribunal  

recorded that rainfall during the North-East monsoon season comes  

in the form of cyclonic storms with heavy downpours for some days  

with interspersed dry spell periods and as such, heavy surface flows  

during the months of October, November and December in the  

Delta region result in outflow into the sea as the flood flows.  The  

Tribunal, on an assessment of the materials on record and taking  

note of the opinions of different experts, concluded that only those

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308    

escapages which flow down into the sea as surplus at Lower  

Coleroon Anicut during the normal or below normal years of  

precipitation could be counted as inevitable escapages and  

quantified the volume to that effect as 4 TMC to be deducted from  

the normal yield of 740 TMC available for apportionment.    

P.10 Water allocation for the State of Kerala and Union  Territory of Pondicherry (presently named as  “Puducherry”)  

 263.  The Tribunal, at this juncture, turned to determine the  

allocations for Kerala and the Union Territory of Puducherry.   

264.   In apportioning the share of the State of Kerala, the Tribunal  

adverted to the report of the Cauvery Fact Finding Committee and  

recorded that so far as the first and second crops are concerned,  

the requirements of irrigation were nominal. From the chart  

appended to the report showing the weekly evapo-transpiration and  

rainfall, it construed that the rainfall was so evenly distributed over  

the months of May to November and in excess of evapo-

transpiration that only occasional assistance by artificial irrigation  

was required in the event of some failures in small periods. It  

noticed the stand of Kerala in its statement of case that agriculture

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309    

was the basic occupation of the people in Kabini, Bhavani and  

Pambar basins with the main crop in the low elevation being paddy,  

and plantation crops being grown in the middle and higher  

elevations. Kerala had claimed that in the absence of assured water  

supply from irrigation projects, excepting a few minor irrigation  

works serving limited ayacut, the agricultural crops in the Cauvery  

basin therein were dependent on the seasonal rainfall. Kerala had  

pleaded that after Malabar came over to it, it had submitted several  

schemes to the Government of India for approval but except one  

project, viz., Karapuzha in the Cauvery basin, no other scheme was  

approved because of the pending dispute on sharing of water.  

According to Kerala, it was for this historical fact that despite the  

availability and potential to use Cauvery water, the Malabar area  

could not take up irrigation projects. The demand of Kerala in its  

statement of case was 92.9 TMC under different heads covering  

Kabini, Bhavani and Pambar sub-basins. The Tribunal noticed that  

out of this volume of water, 35 TMC was demanded by Kerala for  

trans-basin diversion to generate hydro-power. As a matter of fact,  

it claimed that its contribution to the Cauvery basin was about 20%  

of the total yield of 740 TMC and, thus, considering its peculiar

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310    

needs as an over populated and industrially under developed State,  

its share of water works out as 99.8 TMC including non-

consumptive use of Pambar HE Scheme – 5.6 TMC, Siruvani Water  

Supply Scheme for Coimbatore – 1.3 TMC in addition to their claim  

of 92.9 TMC. The demand of the State that it was entitled to the use  

of Cauvery water for irrigation for paddy crop wherever possible and  

plantation crops in the hill slopes in addition to the use of such  

water for the generation of hydro-electric power was minuted. The  

Tribunal took note of the stand of Tamil Nadu to limit the claim of  

Kerala on the basis of an Agreement of 1969 between the two  

States, but negated the same and decided that its claim for its  

share of water was to be considered on merit. While adjudging the  

demand of Kerala, the Tribunal took note of the stand of Karnataka  

that in view of the sufficient rain during South-West and North-East  

monsoons, the first two paddy crops, namely, Virippu and  

Mundakan do not need any irrigation support; summer paddy crop  

should not be allowed; since 1975 the overall area under paddy  

cultivation in the State had been declining and as a whole, it had  

sufficient hydro-power potential in large number and as such,  

transbasin diversion should not be allowed. The demurral of

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311    

Karnataka based on the project reports of Kerala that it proposed to  

have three crops in all the projects, was also accounted for. The  

Tribunal, in this context, reflected on the efforts made by Kerala to  

push its projects unsuccessfully over the years and its emphasis for  

the need to develop the hilly region of Wyned and Attappaty which  

were under developed. Before examining the tenability of the  

demand of Kerala, the Tribunal first set out the broad heads thereof  

as under:-  

    Items       TMC  

1. Multi-purpose projects for  

hydro-power generation and  

incidental use for irrigation  

outside the Cauvery basin  

involving trans-basin  

diversion.  

35.0  

2. Medium irrigation schemes  

for covering areas within the  

basin.  

38.8  

3. Minor irrigation works  

(existing, ongoing &  

proposed).  

6.1  

4. Domestic water supply  

(ultimate requirement).   

5.5  

5. Industrial uses (ultimate  

requirement).   

7.5

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312    

  

265. Vis-a-vis the first item, the Tribunal held that the water of  

inter-State river was meant for use by all the riparian States  

according to the reasonable needs and necessity of each State  

within the basin. While underlining that irrigation had always been  

given higher preference over generation of hydroelectricity unless  

water was surplus, it enumerated the water allocation priorities as  

prescribed by the National Water Policy of 2002 as hereinbelow:-   

 Drinking water  

 Irrigation  

 Hydro-power  

 Ecology  

 Argo-industries and non-agricultural industries  

 Navigation and other use.  

 266. Rejecting the plea on behalf of Kerala in support of transbasin  

diversion based on the necessity and need of the whole State, the  

Tribunal held that if it is accepted that while determining the  

6. Non-consumptive use for  

Pambar Hydro-electric  

Scheme within the basin.  

5.6  

7. Committed utilisation for  

Siruvani drinking water  

supply for the benefit of Tamil  

Nadu.  

1.3  

Total 99.8

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313    

equitable share of a particular riparian State, even the shortage of  

water in the neighbouring basin which is outside the basin in  

question is to be considered, it would lead to an anomalous  

situation. In its view, though in the Helsinki Rules of 1966, there is  

a reference of basin states, yet the process of diversion could not be  

executed by one of the riparian States at the cost of other lower  

riparian States affecting their irrigation, economy and social needs.  

The observation of the Krishna Water Disputes Tribunal and the  

Narmada Water Disputes Tribunal in substance to the effect that in  

the absence of any agreement, the prudent course may be to limit  

the diversion to the surplus waters left after liberally allowing for  

the pressing needs of basin areas, was reiterated. The following  

observations of the U.S. Supreme Court in State of New Jersey v.   

State of New York (supra) were also recorded:-  

―The removal of water to a different watershed obviously  must be allowed at times unless States are to be deprived  

of the most beneficial use on formal grounds.  

Diversion of water from one river basin to another is  viewed with distrust and resisted by the basin  population.‖  

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314    

267. The Tribunal also referred to the observation of the Expert  

Committee headed by Shri C.C. Patel, the then Additional  

Secretary, Ministry of Irrigation and Power, against trans-basin  

diversions in a water deficit basin. It, therefore, concluded that  

because of shortage of water, no note could be taken of claims made  

by the States for apportionment of water in respect of any trans-

basin diversion already made or proposed to be made for any  

purpose. The Tribunal, thus, declined to allocate water for the  

projects involving transbasin diversion of waters.  

268. Qua the demand for irrigation, domestic and industrial water  

use, the Tribunal, on a scrutiny of the project reports as furnished  

in the common format, catalogued the following aspects:-  

―(i) Out of the irrigation schemes projected, only one  scheme i.e. Karapuzha project had been approved by the  Government of India.    

(ii) While the State had been emphasizing on spice and  plantation crops, while placing demand, it had only  submitted its requirement mainly for paddy and  vegetable crop, besides indicating demand for domestic  and industrial uses along with hydropower projects  involving interbasin transfer of water.    

(iii) As regards culturable command area (CCA) and  ayacut under individual projects, the extent of proposed  ayacut was much less than CCA because of the physical  nature of the area, which was undulating in character.  

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(iv) Main crop in the low elevation areas was paddy,  whereas in the middle and higher elevations, it was  plantation crops for which reasonable needs were to be  assessed, so that the irrigated area could be made equal  to the CCA for the State has proposed two paddy crops  and one vegetable crop for the Kabini sub-basin. While  the first crop ―Virippu‖ was raised during May to  September, water requirement whereof was met from  South-West monsoon, the second crop ―Mundakan‖ was  raised from end of September to end of January with the  support of North-East monsoon. The first was the rain  fed crop and the second principally, an irrigated crop.  The third crop ―Puncha‖ grown from January end to early  May was a summer crop, which however could not be  allowed because of non-availability of rainfall support.    (v) Though the State had proposed three paddy crops  in their Attappady Project in Bhavani sub-basin noticing  that this basin used to receive rainfall during South-West  monsoon, which was weaker, only one paddy crop was to  be allowed during North-East monsoon, whereas the  proposed paddy crop during South-West monsoon was  recommended to be replaced by any semi dry crop. For  Pambar sub-basin as well, though the State had  proposed two paddy crops, one paddy crop and one semi  dry crop was suggested.     

(vi) No lift irrigation for raising paddy cultivation was  allowable.    

(vii) Demand for domestic and industrial water use was  excessive. The excessive demand for industrial use was  restricted to 33% of the quantity of the existing actual  utilization for project development till 2011.    

(viii) The Tribunal having regard to its above responses  and bearing in mind that the State had substantial tribal  population in Cauvery basin area worked out the project- wise allocations based on socio-economic needs, agro-

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climatic conditions and availability of land for  cultivation.‖    

269. The analysis that followed reveals that the Tribunal did  

examine the demand vis-a-vis the different projects in the Kabini,  

Bhavani and Pambar basins in the context of their individual  

features and corresponding crop water requirement. While doing so,  

the Tribunal also, inter alia, examined the viability of the projects  

and excluded those which were not viable. In assessing the claims  

made, the Tribunal was particularly mindful of the crop pattern,  

annual intensity of irrigation, delta requirements, etc. with specific  

reference to rainfall support. In addition, demand towards minor  

irrigation schemes/projects in the aforenamed basins were  

accounted for and eventually, the irrigation water requirement of  

Cauvery basin, Bhavani basin and Pambar basin was assessed to  

be as hereunder:  

Kabini basin – 19.43 TMC  Bhavani basin – 5.52 TMC  Pambar basin – 2.95 TMC   

 270. Noticeably, the Tribunal, while assessing the crop water  

requirement for the above three sub-basins, allowed allocations for  

―Virippu‖ and ―Mundakan‖ paddy crops for Kabini sub-basin; kharif

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317    

semi-dry and miscellaneous, ―Mundakan‖ and perennial crop for  

Bhavani sub-basin and kharif semi-dry and miscellaneous and  

―Mundakan‖ for Pambar sub-basin.    

271.  While working out the domestic and industrial water  

requirement, the Tribunal considered the population projection for  

2011 and adopted the ratio of urban and rural population at the  

ratio of 30:70.  Against the drinking water requirement at a flat rate  

of 120 lts. phpd for the entire population, the Tribunal thought it  

reasonable to bifurcate the demand between the rural and urban  

areas and quantified it to be 120 lts. phpd for urban population and  

70 lts. phpd for the rural population (human-being 40 lts. phpd +  

cattle 30 lts. phpd), thereby adjudging the drinking water  

requirement on the above norms for Kabini, Bhavani and Pambar  

sub-basins together at 1.53 TMC. As the actual consumptive use  

out of the above would be limited to only 20% and the remaining  

80% would gradually flow back to the river system over a period of  

time, the actual allocated share on this head was, thus, assessed to  

be .31 TMC for the three sub-basins.      

272. Dealing with the industrial water requirement, the Tribunal  

took into account the existing industrial water use for different

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318    

types of industries in Kabini basin estimated at .50 TMC which was  

expected to increase by another 33% by the year 2011 thus  

becoming .69 TMC. Working on the same lines, the industrial water  

need for Bhavani sub-basin and Pambar sub-basin was assessed at  

.21 TMC and .26 TMC respectively making the total tally of 1.16  

TMC. However, as the consumptive use for industrial purposes was  

limited to 2.5% of the volume, the Tribunal adjudged the share on  

this count to be .04 TMC as the remaining bulk would return to the  

river system.  

273. The Tribunal, on the basis of the population ratio inter se the  

States, awarded Kerala 1.51 TMC out of the savings of 45.08 TMC  

so as to enable it to use the same keeping in view its own priorities  

in public interest. Thus, the total water requirement of Kerala,  

taking into account all heads of demand, was quantified at 29.76  

TMC rounded up to 30 TMC. In parting, the Tribunal clarified that  

the allocation was based on the needs established and accepted and  

did not signify the sanction of any project by it, as the clearance  

thereof under the law was to be granted by the State Government.  

Having regard to the historical facts that Kerala would take some  

time to utilize its full allocated share so much so that some

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unutilized water from its share would be flowing in Kabini, Bhavani  

and Amaravathi reservoirs and recalling that the Tribunal had not  

taken note of the claim of Tamil Nadu of its irrigated area of  

second/double crop totaling 2,80,800 acres, it was provided that till  

such time Kerala would be in a position to utilize its allocated share  

of water, the unutilized water from its share be permitted to be used  

by Tamil Nadu. While holding so, the Tribunal observed that this  

temporary arrangement of use by Tamil Nadu of the unutilized  

water from the share of Kerala, however, would not confer any right  

on it.  

274. Adverting to the claim of the Union Territory of Puducherry for  

the Karaikal region, the Tribunal recorded that the economy of that  

region was predominantly based on agriculture and that due to its  

close proximity to the sea, the ground water was generally brackish  

and unsuitable for drinking and irrigation purposes. The claim of  

the Union Territory for its water requirement vis-a-vis the crop  

grown as extracted hereinbelow was noticed:-  

 

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320    

 

 

275.   Thus, the total area summed up to 42,533 acres and the total  

water requirement was estimated at 9.355 TMC including 115 mcft  

for drinking water. The Tribunal marked that there was, in fact, no  

denial of the irrigated area claimed by the party-States, though  

Karnataka, in its rejoinder, did not admit its crop pattern as  

projected and the corresponding water requirement. The fact that  

the irrigated area of 43000 acres had also been endorsed by the  

Cauvery Fact Finding Committee was duly noted. Further, the  

aspect that the Union Territory of Puducherry, due to its own  

S.No. Crop Area  

(hectares)  

Water  

Requirement  

(Mcft.)  

(1) Samba  

(Single  

Crop)  

4760 3006  

(2) Kuruvai  

(Khariff  

double  

crop)  

6230 2868  

3) Thalady  

(Rabi –  

double  

crop)  

6230 3366  

 Total 9240

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321    

compulsions, did not have any scope for extension of the said area  

also did not miss the attention of the Tribunal and, thus, on a  

totality of the above considerations, its claim for second crop was  

allowed in particular keeping in view the geographical and climatic  

conditions and the soil features of the territory.   

276. Noticeably, the State of Tamil Nadu, while arguing its demand  

of water as well as the area under irrigation, had indicated its stand  

in respect of the Union Territory of Puducherry and provided the  

following particulars to demonstrate the overall need of the Union  

Territory:-  

S. No. Sector Pondicherry  

Area in  lakh  acres  

Water  required  in TMC  

(1) (2) (3) (4)  

A Domestic and livestock  need  

0.356  

B Environmental/Ecologic al Needs  

0.000  

C Irrigation requirement  for the area under  Priority – I to IV  

0.430 6.840  

C Industrial & Power  0.070  

Total 0.430 7.266  

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322    

277. From this, the Tribunal construed that not only Tamil Nadu  

admitted that the gross irrigated area in Puducherry was 43000  

acres, but also measured its total water requirement to be 7.266  

TMC.  

278. In respect of the crop water requirement of Puducherry in  

particular, the Tribunal observed that the extent of area under  

Kuruvai, Samba and Thaladi was 15,388, 11,757 and 15,388 acres  

respectively out of which the first crop (Kuruvai and Samba)  

covered 27,145 acres and the second crop (Thaladi) was raised over  

15,388 acres. The Tribunal also mentioned that the Karaikal region  

of the Union Territory of Puducherry was situated at the tail end of  

the Tamil Nadu Delta system and for all practical purposes, could  

be taken to be the natural extension of the Cauvery Delta system of  

Tamil Nadu and, therefore, the cropping pattern as well as the  

water requirement for the crops did also broadly match. It was,  

however, indicated that the Karaikal region was in the close  

proximity of the sea for which the effect of sea water on the  

cultivable area was an aspect which needed special consideration.  

This was, as the Tribunal underlined, to ensure that the brackish  

water remained well below the crop root zone for which liberal

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provision for irrigation water was warranted. Though it noted that  

the North-East monsoon helps in leaching the salt deposited over  

the land as well as in the sub-soil, yet having regard to the above  

factors, a volume of 6.35 TMC by way of crop water requirement  

was allowed.  

279. For domestic and industrial water requirement of the Union  

Territory, the Tribunal noted that the total population of its  

Karaikal region, as projected for 2011, was to be applied. It  

construed the ratio of urban to rural population to be 35:65 and by  

applying the yardstick of 120 lpcd against urban domestic water  

supply requirement and 70 lpcd for the rural population including  

livestock, it worked out the total domestic water requirement to be  

.225 TMC. Though 80% of the domestic water supply was generally  

expected to return back to the river system, yet in the case of  

Karaikal region, this norm was not applied as the water would not  

take that course but would flow into the brackish sub-soil or into  

the sea. The Tribunal, thus, allowed the full quantity of .225 TMC  

for domestic water requirement.   

280. In respect of its industrial water requirement, the Union  

Territory of Puducherry, in its common format, indicated its

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demand to be .034 TMC. The Tribunal was of the view that by 2011,  

this demand would increase by about 33% to become .045 TMC. As  

on the analogy of reasonings qua domestic water requirement, the  

industrial water taken for use from the river system will not return  

to it and, hence, the full quantity, i.e., .045 TMC was accepted.  

Thus, the total water requirement of the Union Territory of  

Puducherry towards irrigation, domestic water supply and  

industrial use was assessed at 6.62 TMC.  

281. Added to this, out of the balance water of 45.08 TMC on  

savings, as per its population in the year 1991, the bench mark  

used for the other States, its share was worked out to be .22 TMC.  

The total allocation of water for Puducherry on all these counts,  

thus, totalled to 6.84 TMC which was rounded upto 7 TMC. It was  

mentioned that this quota allocated to Karaikal was required to be  

delivered at the seven locations at the inter-state crossing points  

(between Tamil Nadu and Karaikal) of 7 rivers, namely, Nandalar,  

Nattar, Vanjiar, Noolar, Arasalar, Thirumalairajanar and  

Pravadayanar. With regard to the monthly delivery of supplies, it  

was noted that Tamil Nadu and Union Territory of Puducherry had  

an agreement which had been working satisfactorily and, thus, it

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was ordered that the same would continue. It was indicated that in  

case of any disagreement, the matter could be resolved by the  

Cauvery Management Board.  

P.11    Final water allocation amongst competing States  

282. Having dealt with the allocations for the individual States as  

above, the final calculations were set out in a tabular form as  

herein below:-  

States Total  

Kerala Karnataka Tamil  Nadu  

UT of  Poncidherry  

 

i) Area 1.93 18.85 24.71 0.43 45.92  

ii)Irrigation  requirement   

27.90 250.62 390.85 6.35 675.72  

iii) Domestic  and  Industrial  

water  requirement  projected for  

2011  

0.35 1.85 2.73 0.27 5.20  

iv) Water  requirement  

for  environmenta

l protection  

- - - - 10.00  

v) Inevitable  escapages  

into sea  

- -gv - - 4.00  

vi) Share in  balance water   

1.51 17.64 25.71 0.22 45.08  

Total 29.76 270.11 419.29 6.84 740.00  

Say 30.00 270.00  419.00 7.00 726+14

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=740  

 

283. Simply put, the final allocated shares of the competing States  

together with the provisions for environmental protection and  

inevitable escapages into sea, as determined by the Tribunal, can be  

reflected thus:-   

1. Kerala        30 TMC   2. Karnataka       270    3. Tamil Nadu       419     4. Union Territory of Pondicherry  7       5. Environmental protection  10       6. Inevitable escapages into sea  4                                                        __________               740 TMC  

   

284. Significantly, in computing the balance quantity of 45.08 TMC  

which the Tribunal distributed on the basis of the respective  

population figure, the Tribunal attributed this quantum to the  

proposed carry over storage of 10 TMC, each for the States of  

Karnataka and Tamil Nadu, as recommended by the Assessors as  

well as a volume of 25.08 TMC that was available in view of the  

limitations prescribed in allotment.  According to the Tribunal, on a  

consideration of different aspects, it was decided to keep 20 TMC

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(10 TMC x 2) as advised by the Assessors as carry over storage, to  

allocate the same together with the other 25.08 TMC available to  

the States on the principle of equity, leaving them at liberty to  

utilize the same as per their own priority.    

P.12 Monthly schedule for delivery of water at inter-State   contact points  

 285. The Tribunal next dwelt upon the monthly schedule of flows at  

the inter-State contact point between Karnataka and Tamil Nadu to  

ensure timely supplies for successfully raising crops in different  

crop seasons.  It noticed that for the fields in which paddy was  

grown by the State of Tamil Nadu, the nurseries were put in the  

field between middle of June to middle of July followed by  

transplantation during last week of July onwards. Having regard to  

the fact that in Tamil Nadu, the first crop of ―Kuruvai‖ was  

harvested in September followed by the second crop ―Thaladi‖ to be  

harvested in January-February and that the main crop ―Samba‖ is  

transplanted in the month of August- September and harvested in  

December, the Tribunal prepared a schedule of the monthly  

releases from mid-June to end of January spanning over the  

agricultural season so that the interests of both the states of Tamil

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Nadu and Karnataka were taken care of. In drawing up the monthly  

schedule of release of water, the Tribunal kept in mind that in  

normal years, such release would not pose any difficulty to the  

State of Karnataka and at the same time would meet the  

requirement of Tamil Nadu. The inter-state contact points were  

enumerated thus:-  

i) Between Kerala and  Karnataka  

: Kabini reservoir site  

ii) Between Kerala and  Tamil Nadu  

:   

(a) For Bhavani sub- basin  

 It is reported that  Chavadiyoor gauge site  was being operated by  the State of Kerala  which could be revived  for inter-State  observations.  

 

: Chavadiyoor G.D. site  

(b) For Pambar sub- basin  

 

: Amaravathi reservoir  site  

 

iii) Between Karnataka and  Tamil Nadu    

: Billigundulu G.D.  site/any other site on  common border  

iv) Between Tamil Nadu  and Pondicherry  

: Seven Contact points‖  

  

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286.  It was mentioned that the identified inter-state contact point  

between Karnataka and Tamil Nadu was at Billigundulu gauge  

where  the discharge site was maintained by the Central Water  

Commission, an independent organization of the Central  

Government having due expertise in the river gauging techniques.  

The Tribunal was of the opinion that the gauge and discharge  

observation stations where direct observations can be made would  

be a better location than a reservoir site where the measurements  

can be taken only in an indirect way. The Regulatory Authority was,  

however, left at its discretion, if needed, to require the Central  

Water Commission, in consultation with the State Governments, to  

establish new gauge and discharge station on the common border.  

The unutilized water allocated to the State of Kerala, which would  

be flowing to the lower States, namely, Karnataka and Tamil Nadu  

and the existing reservoirs of Kabini, Bhavani and Amaravathi from  

which the distribution was ordered was to be monitored by the  

Cauvery Management Board. The fact that the annual allocation of  

7 TMC for the Union Territory of Puducherry would be required to  

be delivered by Tamil Nadu over a period of one year at 7 different  

contact points, as in the past, was indicated. The calculations of the

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flow required to be delivered at the inter-state site were summed up  

as hereunder:-  

 

 TMC  

―1) The total yield of the basin at 50%  dependability   

 

740  

2) Yield at Mettur reservoir.     (Ref: TNDC Vol.XV, page 87 and TN  Statement No.57, item 1 dated  10.2.2005)  

508  

3) Yield generated in Tamil Nadu area  above Mettur reservoir  (Ref: TN Statement No.57, item 4 and  TN Statement 86, item 1)  

25  

4) (a) Yield available below Mettur (740– 508)   (Ref: TN Note 46, Annexure-3, page 54;  TN Statement 83, item 1)  

232  

(b) Deducting following uses:-   

i)Allocation to Kerala in  Bhavani sub-basin        - 6 TMC  ii)Allocation to Kerala in  Pambar sub-basin         - 3 TMC  iii)Allocation to UT of  Pondicherry       - 7 TMC  iv)Inevitable escapages  into sea        - 4 TMC  

                               20 TMC  

     

 20  

(c) Balance available for use in Tamil  Nadu                            (232–20)  

212  

5) Total of water available for use in   Tamil Nadu                   (212+25)  

237‖  

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287. Deducing therefrom and having regard to the allocated share  

of 419 TMC, the Tribunal ordered that the balance 182 TMC (419-

237) + 10 TMC for environmental protection, i.e., 192 TMC was to  

be delivered by the State of Karnataka at the inter-State border. In  

this regard, the three components contributing to the annual  

quantum of water to be delivered by the State of Karnataka at the  

inter-State contact point were identified as herein below:  

―i) Flows coming in the river Cauvery from the  uncontrolled catchment of Kabini sub-basin downstream  of Kabini reservoir, the catchment of main stream of  Cauvery river below Krishnarajasagara, uncontrolled  flows from Shimsha, Arkavathy and Suvernavathy sub-

basins and various other small streams.  

ii) Regulated releases from Kabini reservoir; and  

iii) Regulated releases from Krishnarajasagara  reservoir.‖  

 

288. It was clarified as well that the delivery of 192 TMC of water at  

the inter-state contact point was to be maintained in a normal year  

and that if there was any deficiency in the quantum of inflows, it  

would be open to the Cauvery Management Board/Regulatory  

Authority to suitably adjust the flows. The monthly schedule of  

deliveries finally prepared in consultation with and on the basis of  

the advice of the assessors at Billingundulu was designed thus:-  

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―Month TMC Month TMC  June 10 December 8  

July 34 January 3  

August 50 February 2.5  

September 40 March 2.5  

October 22 April  2.5  

November 15 May  2.5  

 Total 192 TMC‖  

 

289. While clarifying that Kabini‘s flows of the unutilized water out  

of the Kerala‘s allocated share, from Kerala to Tamil Nadu would be  

in addition to the flow of 192 TMC as per the monthly schedule till  

Kerala develops its own potential to use the same, the Cauvery  

Management Board/Regulatory Authority was also required to set  

up its mechanism and further devise its method to determine the  

quantum of unutilized water to be received from Kerala by Tamil  

Nadu through Kabini and its tributaries and ensure the delivery  

thereof in Tamil Nadu at the common border. The Regulatory  

Authority was also required to monitor flows from Krishna Raja  

Sagara reservoir as also from Kabini and other tributaries meeting  

Kabini below Krishna Raja Sagara upto Billigundulu site. It was  

again clarified that the monthly schedule of deliveries was on the  

basis of the flow in a normal year giving a total annual yield of 740

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TMC at 50% dependability which was a theoretical computation  

based on the crop water requirement of different projects and the  

computed withdrawal therefor along with the data of inflows into  

the various reservoirs as furnished by the party-States in their  

common formats. However, the Tribunal was not unmindful of the  

fact that rainfall during any monsoon season was likely to vary in  

space and time and also in intensity and duration which would  

have impact upon the pattern of flows in different sub-basins and   

which may not tally with the flows considered for working out the  

above schedule. In this premise, the Tribunal suggested an entity,  

namely, the Cauvery Management Board/Regulatory Authority to  

monitor, with the help of the Cauvery Regulation Committee and  

the concerned State Authorities, the available storage position in  

the Cauvery basin along with the trend of rainfall and make an  

assessment about the likely inflows which may be available for  

distribution amongst the party-States within the overall schedule of  

water deliveries as suggested. It was also made clear that in case  

the yield was less in a distress year, the allocated shares would be  

proportionately reduced amongst the States involved by the  

Regulatory Authority. Having regard to the fact that the irrigation

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season starts from 1st of June and the normal date of onset of  

South-West monsoon in Kerala is of the same date so much so that  

any delay in the advent of the said monsoon would affect the  

inflows and consequently dislocate the schedule of releases from  

Krishna Raja Sagara and Kabini reservoirs, the Tribunal felt it to be  

advisable that at the end of May each year, as much storage as was  

possible during a good year should be consciously conserved as  

that would help in adhering to the schedule of monthly deliveries.  

The Tribunal, however, authorized the Cauvery Management  

Board/Regulatory Authority to relax the schedule of deliveries and  

get the reservoirs operated in an integrated manner through the  

States to minimize any harsh effect of a bad monsoon year in the  

event of two consecutive distress years. The Cauvery Management  

Board/Regulatory Authority was also required to monitor the entire  

spectrum of monthly availability of storages and rainfall pattern   

vis-a-vis the schedule of monthly flows to be delivered at  

Billigundulu/inter-State contact point for a period of five years and  

to effect the necessary adjustments in the monthly schedule in  

consultation with the party-States and with the help of the Central  

Water Commission without, however, changing the annual

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allocation awarded to the parties. In suggesting these measures, the  

Tribunal was conscious that there was no element of human control  

on the happenings in nature and that only an attempt was to be  

made to ensure beneficial use of the available quantum of flows in  

any year and to distribute the same for the benefit of the basin as a  

whole by integrating the releases from different storage reservoirs. A  

caveat was also sounded to the upper riparian State to desist from  

any action so as to affect the scheduled deliveries of water to the  

lower riparian States.   

Q.  Mechanism (Cauvery Management Board) for  

implementation of Tribunal's decisions  

290. The Tribunal also did devise the machinery for implementation  

of its final decisions/orders and in doing so, took note of Section 6A  

introduced in the 1956 Act by Act 45 of 1980 with effect from  

27.08.1980 empowering the Central Government to frame schemes,  

if any, in respect of such implementation. It also noticed the  

amendment to Section 6 of the Act whereby in terms of Section 6(2),  

the decision of the Tribunal after its publication in the Official  

Gazette was to have the same force as an order or decree of the  

Supreme Court. In this statutory background, the Tribunal was of

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the view that any direction to frame a scheme for the  

implementation of its decision would result in an anomalous  

situation. However, in its view, as the Inter-State Water Disputes  

(Amendment) Act, 1980 did not provide for details with regard the  

to constitution of the machinery and its functions, it had the  

implied power to make recommendations in that regard for  

implementing its decision. It, thus, recommended that the Cauvery  

Management Board be constituted on the lines of Bhakra Beas  

Management Board by the Central Government. It underlined that  

unless an appropriate mechanism was set up, the prospect of  

implementation of its decision would not be secured. It further  

recommended that as its award involved regulation of supplies from  

various reservoirs and other important nodal points/diversion  

structures, it was imperative that the mechanism, Cauvery  

Management Board, be entrusted with the function of supervision  

of the operation of reservoirs and the regulation of water releases  

therefrom with the assistance of the Cauvery Water Regulation  

Committee (to be constituted by the Board). It then suggested the  

constitution of the Cauvery Management Board, its composition, its  

items of business, etc. It also recommended the composition of the

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Cauvery Water Regulatory Committee and outlined its functions.  

The Cauvery Management Board was also required to submit an  

annual report to the four party-States before the 30th of September  

of each year. The Tribunal prescribed guidelines for the Cauvery  

Management Board which besides being exhaustive were intended  

to touch upon the functional details relating to the supplies out of  

the allocated shares. We do not intend to state the guidelines laid  

down by the Tribunal as we shall be addressing to many an aspect  

while analyzing the concept of the scheme as envisaged under  

Section 6.1 of the 1956 Act  

R.  Final order of the Tribunal  

291. On the culmination of the above exercises, the Tribunal  

formulated its final order with its determinations and directions on  

all the facets of the dispute. As the layout of the final order portrays  

the summation of the adjudication made, it would be apposite to  

quote the same as hereunder for immediate reference:  

“Final Order and Decision of the Cauvery Water  

Disputes Tribunal  

The Tribunal hereby passes, in conclusion the following  

order:-  

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Clause-I  

This order shall come into operation on the date of the  publication of the decision of this Tribunal in the official  gazette under Section 6 of the Inter-State Water  

Disputes Act, 1956 as amended from time to time.  

Clause-II  

Agreements of the years 1892 and 1924:  

The Agreements of the years 1892 and 1924 which were  executed between the then Governments of Mysore and  Madras cannot be held to be invalid, specially after a  lapse of about more than 110 and 80 years respectively.  Before the execution of the two agreements, there was  full consultation between the then Governments of  Madras and Mysore. However, the agreement of 1924  provides for review of some of the clauses after 1974.  Accordingly, we have reviewed and re-examined various  provisions of the agreement on the principles of just and  

equitable apportionment.   

Clause-III  

This order shall supersede –  

i)  The agreement of 1892 between the then Government  of Madras and the Government of Mysore so far as it  

related to the Cauvery river system.  

ii)  The agreement of 1924 between the then Government  of Madras and the Government of Mysore so far as it  

related to the Cauvery river system.  

Clause-IV  

The Tribunal hereby determines that the utilisable  quantum of waters of the Cauvery at Lower Coleroon  Anicut site on the basis of 50% dependability to be 740  

thousand million cubic feet-TMC (20,954 M.cu.m.).

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Clause-V  

The Tribunal hereby orders that the waters of the river  Cauvery be allocated in three States of Kerala,  Karnataka and Tamil Nadu and U.T. of Pondicherry for  

their beneficial uses as mentioned hereunder:-  

i) The State of Kerala   - 30 TMC  

ii) The State of Karnataka  - 270 TMC  

iii) The State of Tamil Nadu  - 419 TMC  

iv) U.T. of Pondicherry   - 7 TMC          ________  

       726 TMC  

In addition, we reserve some quantity of water for (i)  environmental protection and (ii) inevitable escapages  

into the sea as under:-  

(i) Quantity reserved for environmental  – 10 TMC  

protection  

(ii)  Quantity determined for inevitable   – 4 TMC  

escapages into the sea     14 TMC  

 

  Total (726 + 14)       740 TMC  

Clause – VI  

The State of Kerala has been allocated a total share of 30  TMC, the distribution of which in different tributary  

basins is as under:  

(i)  Kabini sub-basin   - 21 TMC  

(ii)  Bhavani sub-basin -   6 TMC  

(iii) Pambar sub-basin -   3 TMC  

Clause – VII

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In case the yield of Cauvery basin is less in a distress  year, the allocated shares shall be proportionately  reduced among the States of Kerala, Karnataka, Tamil  

Nadu and Union Territory of Pondicherry.  

Clause VIII  

The following inter-State contact points are identified for  

monitoring the water deliveries:  

i) Between Kerala  

and Karnataka  : Kabini  

reservoir site  

ii) Between Kerala  

and Tamil Nadu  -   

a) For Bhavani  sub-basin    

It is reported that  Chavadiyoor  gauge site was  being operated by  the State of  Kerala which  could be revived  for inter-State  observations.    

: Chavadiyoor  

G.D. site  

b) For Pambar  sub-basin    

: Amaravathy  

reservoir site  

iii) Between  Karnataka and  

Tamil Nadu  

 

 

: Billigundulu  G.D.  site/any  other site on  common  

border  

iv) Between Tamil  Nadu and  

: Seven  Contact  points as

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Pondicherry already in  

operation‖  

Clause-IX  

Since the major shareholders in the Cauvery waters are  the States of Karnataka and Tamil Nadu, we order the  tentative monthly deliveries during a normal year to be  made available by the State of Karnataka at the inter- State contact point presently identified as Billigundulu  gauge and discharge station located on the common  

border as under:  

Month TMC Month TMC  

June 10 December 8  

July 34 January 3  

August  50 February  2.5  

September  40 March 2.5  

October 22 April 2.5  

November 15 May 2.5  

  192 TMC  

 

The above quantum of 192 TMC of water comprises of  182 TMC from the allocated share of Tamil Nadu and 10  

TMC of water allocated for environmental purposes.  

The above monthly releases shall be broken in 10 daily  

intervals by the  Regulatory Authority.  

The Authority shall properly monitor the working of  monthly schedule with the help of the concerned States  and Central Water Commission for a period of five years  and if any modification/adjustment is needed in the  schedule thereafter, it may be worked out in  consultation with the party States and help of Central  Water Commission for future adoption without changing  

the annual allocation amongst the parties.

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Clause X  

The available utilisable waters during a water year will  include the waters carried over from the previous water  year as assessed on the 1st of June on the basis of stored  waters available on that date in all the reservoirs with  

effective storage capacity of 3 TMC and above.  

 

Clause – XI  

Any upper riparian State shall not take any action so as  to affect the scheduled deliveries of water to the lower  riparian States. However, the States concerned can by  mutual agreement and in consultation with the  Regulatory Authority make any amendment in the  

pattern of water deliveries.  

Clause-XII  

The use of underground waters by any riparian State  and U.T. of Pondicherry shall not be reckoned as use of  

the water of the river Cauvery.  

The above declaration shall not in any way alter the  rights, if any, under the law for the time being in force,  

of any private individuals, bodies or authorities.  

Clause-XIII  

The States of Karnataka and Tamil Nadu brought to our  notice that a few hydro-power projects in the common  reach boundary are being negotiated with the National  Hydro-Power Corporation (NHPC).  In this connection,  we have only to observe that whenever any such hydro- power project is constructed and Cauvery waters are  stored in the reservoir, the pattern of downstream  releases should be consistent with our order so that the  

irrigation requirements are not jeopardized.

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Clause-XIV  

Use of water shall be measured by the extent of its  depletion of the waters of the river Cauvery including its  tributaries in any manner whatsoever; the depletion  would also include the evaporation losses from the  reservoirs.  The storage in any reservoir across any  stream of the Cauvery river system except the annual  evaporation losses shall form part of the available water.   The water diverted from any reservoir by a State for its  own use during any water year shall be reckoned as use  by that State in that water year.  The measurement for  domestic and municipal water supply, as also the  industrial use shall be made in the manner indicated  

below:  

Use Measurement  

Domestic and  municipal Water  supply  

By 20 per cent of the  quantity of water diverted or  lifted from the river or any of  its tributaries or from any  reservoir, storage or canal.  

Industrial use      

By 2.5 per cent of the  quantity of water diverted or  lifted from the river or any of  its tributaries or from any  reservoir, storage or canal.  

Clause-XV  

In any riparian State or U.T. of Pondicherry is not able to  make use of any portion of its allocated share during any  month in a particular water year and requests for its  storage in the designated reservoirs, it shall be at liberty  to make use of its unutilized share in any other  subsequent month during the same water year provided  this arrangement is approved by the implementing  

Authority.

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Clause-XVI  

Inability of any State to make use of some portion of the  water allocated to it during any water year shall not  constitute forfeiture or abandonment of its share of  water in any subsequent water year nor shall it increase  the share of other State in the subsequent year if such  State has used that water.  

Clause-XVII  

In addition, note shall be taken of all such orders,  directions, recommendations, suggestions etc. which  have been detailed earlier in different chapters/volumes  of the report with decision for appropriate action.  

Clause XVIII  

Nothing in the order of this Tribunal shall impair the  right or power or authority of any State to regulate  within its boundaries the use of water, or to enjoy the  benefit of waters within that State in a manner not  inconsistent with the order of this Tribunal.  

Clause-XIX  

In this order,  

(a) ―Normal year‖ shall mean a year in which the total  

yield of the Cauvery basin is 740 TMC.  

(b)  Use of the water of the river Cauvery by any person  or entity of any nature whatsoever, within the territories  

of a State shall be reckoned as use by that State.  

(c) The expression ―water year‖ shall mean the year  

commencing on 1st June and ending on 31st May.

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(d)  The ―irrigation season‖ shall mean the season  commencing on 1st June and ending on 31st January of  

the next year.  

(e) The expression ―Cauvery river‖ includes the main  stream of the Cauvery river, all its tributaries and all  other streams contributing water directly or indirectly to  

the Cauvery river.  

(f) The expression ―TMC‖ means thousand million cubic  

feet of water.  

Clause-XX  

Nothing contained herein shall prevent the alteration,  amendment or modification of all or any of the foregoing  clauses by agreement between the parties‖.  

[emphasis supplied]  

S. Arguments advanced on behalf of State of Karnataka as  regards the allocation of water on various heads  

 

S.1  Submissions of Mr. Fali S. Nariman:  

292. It is submitted by Mr. Nariman, learned senior counsel   

appearing on behalf of the State of Karnataka, that while Tamil  

Nadu's statement of claim before the Tribunal set out that it had  

developed 28.20 lakh acres of irrigation before 1974, the Tribunal's  

final order recognised Tamil Nadu's right to develop only 21.38 lakh  

acres. However, the Tribunal, in an unreasonable and inequitable  

manner, allocated water to Tamil Nadu for irrigating an additional  

3.32 lakh acres on the vague ground of "merit and equity". This

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additional allocation for 3.32 lakh acres lay squarely outside the  

ambit of the 1924 Agreement and could not be termed as equitable  

apportionment. Further, the Tribunal's allocation of water was not  

based on the principles of equitable apportionment as elaborated in  

the Helsinki Rules, 1966 which set out that such kind of  

apportionment must be done to satisfy the needs of a basin State  

without causing substantial injury to a co-basin State. The  

Tribunal allocated water on the basis of the 1924 Agreement which  

was based on flow rather than on the basis of established and  

comparative needs of the parties. He submitted that Karnataka's  

stance before the Tribunal had always been that the needs of the  

States, rather than the flow of the water, ought to be the basis for  

apportionment. This need-based apportionment depends on the  

contribution of water to the river valley by each State, the  

population of each State in the river basin and the cultivable area  

of each State in the basin requiring application of water to grow  

crops. None of these factors had been given due importance by the  

Tribunal even though they were highlighted by this Court in In Re:

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Presidential Reference (Cauvery Water Disputes Tribunal)   

(supra).  

293. He submitted that such quantum of water had been allocated  

after taking into account the land in Tamil Nadu which was outside  

the scope and purview of the 1924 Agreement. Tamil Nadu itself  

had consistently taken the stand that the 1924 Agreement was the  

law on the subject and that the parties had to be governed by the  

terms therein. Thus, Tamil Nadu could not benefit from excess  

water allocated on the basis of land which lay outside the scope of  

the 1924 Agreement. It is his further submission that over and  

above the transgressions made by the Tribunal, it had also treated  

Karnataka unfairly by failing to consider the constraints imposed  

on Karnataka's predecessor State and by overlooking the needs of  

Karnataka while allocating water. The Tribunal has given several  

concessions to Tamil Nadu during the course of hearing and also  

granted Tamil Nadu water far in excess of its needs and outside the  

scope of the 1924 Agreement despite the evidence on record. He  

highlighted this aspect by referring to the Saldanha Committee  

Report, 1977 which had recommended large savings in existing use

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of water and had allocated only 393 TMC of water to Tamil Nadu as  

opposed to the significantly larger quantum allocated by the  

Tribunal.  

294. He argued that alternatively, the allocation of water could be  

done equitably and in accordance with justice by restoring equal  

rights to the party-States. He submitted that Karnataka and Tamil  

Nadu were co-equal States and that justice had to be done to both  

while allocating water, a fact which the Tribunal had failed to  

recognise. He submitted that the various applicable factors set out  

in the Helsinki Rules, 1966 were more or less evenly balanced  

between the two States and the same have not been kept in view.  

Further, based on the maxim that equality was equity, the balance  

or remaining volume of water available after subtracting the share  

of Kerala and Puducherry and after accounting for wastage ought to  

have been divided equally between Karnataka and Tamil Nadu.  

According to his calculations, Karnataka and Tamil Nadu would  

each get 339.5 TMC of water.  

 

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S.2    Submission of Mr. S.S. Javali:  

295. Supplementing the argument of Mr. Nariman, Mr. Javali,  

learned senior counsel appearing for Karnataka, submitted that the  

Tribunal had recorded its findings based on conjectures and  

surmises rather than on evidence. He took this Court through the  

record of proceedings to highlight the point as to how the Tribunal  

had made several observations which are founded on materials on  

record. Further, the Tribunal also allowed Tamil Nadu to file an  

affidavit (Ext. 1665) regarding crop water requirement much after  

the stage of closing of evidence and, in fact, relied upon the said  

affidavit while allocating water. Karnataka was not even allowed to  

cross examine Tamil Nadu on the said affidavit and Tamil Nadu  

unjustly gained an advantage over Karnataka. Additionally, Tamil  

Nadu failed to establish that it had suffered injury on account of  

Karnataka's actions, a sine qua non for maintaining the complaint.  

He also touched on several other aspects that the Tribunal failed to  

consider, including drinking water for the city of Bengaluru, excess  

water already available to Tamil Nadu, Karnataka's water projects  

and its drought areas, and overall, the frustration of Karnataka's

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claims and the denial of complete justice to Karnataka. The  

Tribunal failed to account for all the aforesaid shortcomings and its  

final decision was grossly violative of the principles of natural  

justice.    

296. He relied upon the judgments in In Re: Presidential   

Reference (Cauvery Water Disputes Tribunal) (supra), Union of  

India and another v. Tulsiram Patel32, Satyavir Singh and  

others v. Union of India and others33, A.K. Kaul and another v.  

Union of India andanother34, Anisminic Ltd. v. Foreign  

Compensation35,  Ganga Kumar Srivastava v. State of Bihar36,  

P.S.R. Sadhanantham v. Arunachalam and another37, Bengal  

Chemicals & Pharmaceuticals Works Ltd.,  Calcutta v. Their  

Workmen38, Jose Da Costa & another v. Bascora  Sadasiv  

Sinai Narcornim and others.39, Ram Piari v. Bhagwant and  

others40,  Phulchand Exports Ltd. v. O.O.O. Patriot41, Crompton  

                                                           32 (1985) 3 SCC 398  33 (1985) 4 SCC 252  34 (1995) 4 SCC 73  35 [1969] 1 All ER 208  36 (2005) 6 SCC 211  37 (1980) 3 SCC 141  38 (1959) (Supp) (2) SCR 136  39 (1976) 2 SCC 917  40 (1990) 3 SCC 364  41 (2011) 10 SCC 300

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Parkinson  (Works) Pvt. Ltd., Bombay v. Its Workmen and  

others42, Vashit Narain Sharma v. Dev Chandra and others43,  

Ram Bharosey Agarwal v. Har Swarup Maheshwari44 and  

Jamshed Hormusji Wadia v. Board of Trustees, Port of  

Mumbai and another45.    

 

S.3    Contention raised by Mr. Mohan V. Katarki:  

297. Mr. Katarki, appearing for the State of Karnataka, urged that  

the affidavit (Ext.1665) stated that the crop water requirements  

mentioned therein were estimated in consultation with Tamil Nadu  

Agriculture University; however, no material was placed on record  

to justify such consultation. Certain formulae mentioned in the  

affidavit (Ext. 1665) to arrive at the crop water requirements were  

also incorrect. The assertions made in the affidavit (Ext.1665)  

especially with regard to over estimation of evaporation of crops and  

under estimation of effective rainfall, were blatantly incorrect. Tamil  

Nadu also incorrectly interpreted the evidence of Karnataka in an  

attempt to bolster its own case. Tamil Nadu also attempted to  

                                                           42 (1959) Supp (2) SCR 936  43 (1955) 1 SCR 509  44 (1976) 3 SCC 435  45 (2004) 3 SCC 214

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justify its affidavit (Ext. 1665) by arguing that the calculations  

made therein with respect to evaporation were based on the  

Government of India (GoI) guidelines, 1984 whereas Karnataka had  

relied upon papers from the United Nations Food and Agriculture  

Organisation (FAO). Tamil Nadu incorrectly argued that in such  

conflict, the guidelines issued by the GoI had to take precedence.  

He submitted that the GoI guidelines and FAO papers had to be  

read together and that the methodology adopted by Tamil Nadu in  

making such calculations was too general. Such general  

methodology could not be applied to the specific facts of the case.  

During cross examination, Tamil Nadu's own witness deposed that  

Tamil Nadu's water requirement was only 242 TMC and on this  

basis itself, the calculation of water to be provided by Karnataka at  

the Mettur reservoir should have only been 137 TMC as against the  

377 TMC claimed by Tamil Nadu.  

298. He took this Court through the factual aspects of how the  

quantity of rainfall affected the flow of the river. Heavy rainfall  

resulted in greater run-off water which fed the river while moderate

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or lesser rainfall resulted in lesser run-off as the water would  

percolate into the ground and increase the level of ground water.  

299. He then submitted that the Tribunal also failed to factor Tamil  

Nadu's admission before the Cauvery Fact Finding Committee that  

its Samba crop was fed primarily by the North-East monsoon. Tamil  

Nadu intentionally downplayed the contribution of this rainfall in  

its affidavit (Ext. 1665) to assert that it needed more water to  

irrigate such crop. The Tribunal adopted almost the entirety of  

Tamil Nadu's affidavit (Ext. 1665) for estimating crop water  

requirements while making only minor corrections in its final order.  

300. He further submitted that Tamil Nadu obstructed the  

development of water projects in Karnataka thereby resulting in  

large tracts of land in Karnataka remaining undeveloped. Tamil  

Nadu wrongly invoked Karnataka's so-called obligation to obtain its  

consent under the 1892 and 1924 Agreements and in the case of  

the Kabini project, Tamil Nadu did not give its consent even after its  

own technical officers had agreed to the same. Tamil Nadu also  

stalled the Harangi project by wrongly insisting on consent from the

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erstwhile State of Coorg which was not even a requirement under  

the Agreements.  

301. He then submitted that the equitable share of water to be  

allocated to the party-States had to be based on needs rather than  

on the flow of the river. No State had any right to natural flow of an  

inter-state river and several factors had to be considered while  

assessing the needs, like basin factors, drought area and  

population. He took us through several doctrines and theories  

including the Harmon Doctrine, Natural Flow Theory and Helsinki  

Rules, 1966 to emphasise his point. He also relied upon the  

judgment of New Jersey v. New York (supra).  

302. He submitted that in Karnataka's case, the aforementioned  

factors had to be looked at in combination with Karnataka's claim  

under the 1924 Agreement of an area of 12.64 lakh acres.  

Karnataka had a large extent of drought prone areas which  

required a suitable allocation of water. While Karnataka claimed a  

quantity of 408 TMC for irrigation of 27.29 lakh acres, the Tribunal  

arbitrarily considered an area of only 18.85 lakh acres while  

allocating water to Karnataka. The Tribunal applied the rule of

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priority contrary to the rules of equitable apportionment and  

excluded large areas of land based on incorrect interpretation of the  

1924 Agreement and also reduced the water allocated to various  

water projects based on flimsy reasoning. By reducing the  

allocation of water to various water projects in Karnataka on the  

ground of constraint of water availability/highly water-deficit basin,  

the Tribunal was left with 45.08 TMC of water, termed as "balance  

amount" of water, which it then distributed between all the States.  

This reduction and redistribution of water was grossly  

inappropriate and not based on the principles of equity. Such  

volume of "balance amount of water" had been taken from  

Karnataka's projects citing lack of water for other States and then  

been unfairly distributed between all the States. As per Karnataka's  

calculations, the actual amount of water to be allocated to Tamil  

Nadu ought to have been 311.6 TMC as opposed to the amount of  

390.85 TMC allocated by the Tribunal.  

303. He then argued that Tamil Nadu was not entitled, either in law  

or on fact, to claim water on the ground of protected use. He  

submitted that the concept of "existing use" could not be claimed as

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a right but could only be considered as a factor influencing  

equitable apportionment. Existing use had to arise as a legally  

protected interest of the State and was not justifiable either by  

domestic law or by international law. Although several international  

legislations provided for existing use, in each of those cases, it was  

clear that existing use along with potential use was, at best, to be  

considered as a contributing factor and not as a right. The extent of  

existing use had to be measured by the concept of beneficial use  

and not by diversion or natural flow. Tamil Nadu's claim of existing  

use of water for irrigating 28.2 lakh acres was untenable. The  

concept of whole flow/natural flow was also imposed on Mysore by  

virtue of the impugned agreements. He has commended us to the  

authorities in In Re: Presidential Reference (Cauvery Water  

Disputes Tribunal) (supra), State of Nebraska v. State of  

Wyoming (supra), State of Colorado v. State of New Mexico  

(supra), The State of Washington Department of Ecology v.  

Clarence E. and Peggy V. Grimes46 and In Re: Hague v. Nephi  

Irrigation Co.47.  

                                                           46 121 Wash. 2d. 459  47 16 Utah 421, 52 P. 765 (1898) : 41 LRA 311  

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304. He further argued that Karnataka was entitled to water  

allocation of 407.70 TMC considering the scale of its existing and  

ongoing water projects set out in its statement of claim before the  

Tribunal in 1990. Tamil Nadu did not dispute that these water  

projects presently existed and ongoing, rather it only argued that  

they were unauthorized, illegal and operating without taking its  

consent as supposedly mandated under the 1892 and 1924  

Agreements.   

305. He then submitted that the territorial changes of the riparian  

States lying in the Cauvery river and its tributaries materially  

affected the basis of rights and obligations of Madras and Mysore  

under the 1924 Agreement. He elaborated as to how several  

territories were either upper or lower riparian based on the 1892  

and 1924 Agreements. After the commencement of the Constitution  

and subsequently, the 1956 Act, the new State of Mysore, which  

was originally a mid-riparian State, became an upper riparian State  

and the State of Madras, which was earlier both upper and lower  

riparian, became a lower riparian State.

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306. He challenged Tamil Nadu's argument that water allocated to  

Karnataka for its crop should be reduced. Karnataka's crop water  

requirement had not been challenged by any State and any  

argument to the contrary was merely an after-thought. Further,  

Tamil Nadu's entire argument revolved around the premise that the  

soil in Karnataka was unproductive for irrigation and was  

unsustainable for paddy growth. This premise itself was baseless  

insofar as Tamil Nadu admitted in its own pleadings that  

Karnataka's soils were "favourable to grow a wide range of crops".  

Further, the Helsinki Rules, which set out the basis for equitable  

apportionment, did not recognise soil condition or quality as a  

relevant factor in equitable allotment. The relevant factors were the  

existence of cultivable land or area and shortage of rainfall to meet  

the consumptive utilisation of crop. He also argued that one  

riparian State's productive use of water was no ground to deprive  

another co-riparian State's share.  

307. It is canvassed by him that the Tribunal did not allocate  

excessive water to Karnataka's water projects, especially the  

Hemavathy Project. He urged that Karnataka was entitled to

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construct a reservoir of 45 TMC with utilisation capacity of 67.5  

TMC. Since the current gross capacity of the Hemavathy reservoir  

was only 37.1 TMC and the Tribunal had allocated only 43.67 TMC,  

there was no question of any excessive water being allocated to  

Karnataka. As regards Tamil Nadu's argument that the number of  

days to be considered for growing paddy in Karnataka should be  

reduced from 145 days to 120 days and that the water allocation  

should be reduced accordingly, as also the argument that the  

puddling requirement should be reduced from 267 mm to 150/200  

mm, he replied that these facts and figures had, in fact, been  

nullified by the findings of the Tribunal and by the Assessors  

appointed by the Tribunal whose findings were contrary to the said  

argument.  

308. He also challenged Tamil Nadu's argument before the Tribunal  

that excessive water had been allocated to Karnataka for rice  

cultivation. He submitted that the rice cultivated in Karnataka was  

in drought regions and could not be compared to the rice cultivated  

in non-drought areas in Tamil Nadu as there was a substantial  

difference in contributing factors such as percolation and puddling

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losses. Climatic constraints justified higher water allocation to  

drought areas. For the same reason, Tamil Nadu's demand for  

higher allocation of water was also unjustified and improper. Infact,  

Tamil Nadu's cultivation of double crop was completely inconsistent  

with the prevailing climatic conditions in the area. Tamil Nadu's  

Kuruvai crop, which would have benefitted from water provided by  

the North-East monsoon, was instead primarily sustained by  

irrigation supplies from Karnataka as it was cultivated much before  

the onset of the rains. The only sensible course of action would be  

to disallow Tamil Nadu's Kuruvai double crop and allow only the  

Samba single crop.  

S.4     Proponements of Mr. Shyam Divan:  

309. Mr. Divan, learned senior counsel appearing for Karnataka,  

has stressed on the need to recognize the importance of ground  

water while allocating available water resources. Ground water is a  

renewable resource and, if not extracted regularly, would reduce  

the absorption capacity of the underlying aquifer resulting in rain  

water/surface water being wasted as run-off. Extraction of ground  

water is, thus, an optimal utilisation of available resources.

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310. He submitted that the Tribunal had erroneously excluded a  

large coastal area while rejecting the argument for groundwater. He  

also submitted that the Tribunal committed a patent error by  

failing to reduce the amount of water allocated to Tamil Nadu  

despite recognising the availability of 20 TMC ground water in  

Tamil Nadu and the conjunctive use of the same along with surface  

water. Such quantum of ground water ought to have been factored  

in as an available/additional resource in Tamil Nadu for the  

purposes of irrigation.  

311. The quantum of water allocated to Tamil Nadu under the head  

of "irrigation requirement" ought to have been reduced by the  

quantum of available ground water by either 47 TMC (as per Tamil  

Nadu's rejoinder recorded in the final report of the Tribunal) or 30  

TMC (as per Tamil Nadu's pleadings) or, at the very least, 20 TMC  

(as per the findings of the Tribunal) and, accordingly, the quantum  

of water to be provided by Karnataka at the inter-state border also  

ought to have been reduced proportionately. The efficiency of  

utilising ground water, as compared to surface water, was much  

higher and when factoring the available amount of ground water

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and its greater utilisation efficiency, the aforementioned figures of  

47/30/20 TMC ought to be increased to 72/46/30 TMC  

respectively.  

312. He then submitted that the Tribunal had completely  

overlooked the water requirements for the city of Bengaluru in its  

final order. Bengaluru being a metropolis with a burgeoning  

population ought to have been treated as sui generis and been given  

special dispensation while water was being allocated. Water supply  

for Bengaluru was entirely sourced from the Cauvery river but its  

use could not be treated as a trans-basin diversion as erroneously  

claimed by Tamil Nadu which itself was responsible for trans-basin  

diversion of water to irrigate an area of 3.29 lakh acres within its  

territory. The Tribunal allocated a miniscule amount of 1.85 TMC to  

Karnataka under the head "domestic and industrial water  

requirement projected for 2011" while arriving at 20% consumptive  

use for domestic purposes and 2.5% for industrial purposes. He did  

not challenge the percentage of consumptive use; rather he  

contended that the Tribunal had not considered the actual water  

requirements for the city of Bengaluru.

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313. He then contended that the Tribunal had wrongly considered  

water allocation for only 1/3rd of the population of Bengaluru on the  

basis that 36% of the city lay within the basin. This amount of  

water was even further reduced by the Tribunal on the basis of  

unverified figures provided by Tamil Nadu. The Tribunal also  

reduced the quantum of water allocated to Bengaluru on the basis  

that 50% of its needs could be met from groundwater without  

relying upon any evidence or pleadings to that effect. For  

Bengaluru, groundwater, at best, could be considered as a  

complementary/supplementary source rather than a primary  

source. While allocating water to the States, priority had to be given  

to drinking water but the Tribunal had failed to consider this  

aspect. Accordingly, Bengaluru should be given an increased water  

allocation of 10.14 TMC.  

314.  He contended that the water requirements for Bengaluru were  

projected up till the year 2011 as set out in the  

pleadings/submissions which had been submitted at the time of  

the initial hearing in 1990. Seventeen years had elapsed by the  

time the final order was passed. The projections mentioned in the

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pleadings, thus, could not be limited till the year 2011 especially  

when the Tribunal itself had suggested that drinking water ought to  

be calculated on the basis of projections for 2025. Despite this  

factual situation, the Tribunal proceeded on the basis of projections  

till the year 2011. The time gap between the submission of  

pleadings and the final order ought to have been a relevant factor  

while allocating water.  

315.  It is further urged by him that the Tribunal had erroneously  

rejected Karnataka's claim of water for its second crop while  

allowing Tamil Nadu's claim for second crop. Such rejection was  

inequitable and improper. The Tribunal had allowed allocation of  

water for Tamil Nadu's Thaladi second crop to the extent of 1.85  

lakh acres with the justification that approximately 95,000 acres  

were developed prior to 1924 and a further 90,000 acres were  

developed as per the 1924 Agreement. Based on equitable  

apportionment, Karnataka should have been allocated atleast the  

same amount of water for an equivalent area of 1.85 lakh acres,  

but the Tribunal failed to do so. Surprisingly, while recognising

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Karnataka's entitlement for second crop to the extent of 67,000  

acres, the Tribunal failed to allocate any water for the same.  

316. The Tribunal also failed to account for the fact that  

Karnataka's farmers had been growing second crops much prior to  

1974 and by the time the final order was passed in 2007, the  

farmers had been growing second crop for decades. These farmers  

had developed their practices and expectations based on second  

crop and it was wholly inequitable for the Tribunal to reject  

Karnataka's claim. He also reiterated Karnataka's stance that the  

final figure of 45.08 TMC "balance resource" of water was  

erroneously arrived at. The Tribunal should have first considered  

and allocated water for Karnataka's claim for second crop after  

which it could have arrived at a "balance" amount of water  

available.  

317. It is his further submission that the Tribunal had incorrectly  

rejected all schemes for lift irrigation in its final order. This was  

problematic for Karnataka which relied upon lift irrigation,  

particularly in drought-prone areas like the Kabini region, to the  

extent of almost 3.04 lakh acres which requires approximately 18

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TMC of water. Tamil Nadu, on the other hand, primarily relied on  

flow irrigation and minor irrigation and did not have any major lift  

irrigation schemes. Thus, the Tribunal's order rejecting all lift  

irrigation schemes substantially affected Karnataka while making  

negligible impact on Tamil Nadu.  

318.  He also argued that the Tribunal had unjustifiably allocated  

an excess amount of water to Tamil Nadu with respect to the  

Cauvery Mettur project. The 54.68 TMC of water allocated to Tamil  

Nadu for 3.21 lakh acres was based on the deposition of Tamil  

Nadu‘s Witness No. 1 and Tamil Nadu's affidavit (Ext. 1665). The  

deposition of Tamil Nadu's Witness No. 1 confirmed the contents of  

the Cauvery Mettur Project Report which indicated that Tamil  

Nadu's water requirement was actually 41.89 TMC. On the other  

hand, Ext. 1665 had no evidentiary value since the same was an  

unverified affidavit for which Karnataka was not allowed to cross-

examine the deponent. Even the Tribunal had indicated that the  

said affidavit would not be relied upon for supporting Tamil Nadu's  

case, rather it would only be used as an admission. The reliance  

placed on Ext. 1665 was misplaced and ought not to have been

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considered at all. The evidence of Tamil Nadu‘s Witness No. l  

should have been the sole criteria for allocation of water for the  

Cauvery Mettur project. Thus, the Tribunal should have allocated  

not more than 41.89 TMC of water to Tamil Nadu for the said  

project and not 54.68 TMC as done in the final order.  

319.  Finally, he submitted that the Tribunal had failed to recognize  

that the area of irrigation requiring water allocation, as submitted  

by Tamil Nadu, was covered by two irrigation projects/systems in  

Tamil Nadu and had awarded an excess amount of 9.51 TMC in  

that regard. This "double accounting" of irrigable areas was  

erroneous and the water allocated to Tamil Nadu had to be  

proportionately reduced. Tamil Nadu's witness, A.  

Mohanakrishnan, had himself admitted that the existing second  

crop area was 70,000 acres whereas the Tribunal considered the  

area to be 87,500 acres. Similar admissions had been made with  

respect to other areas in Tamil Nadu. Thus, the water allocated by  

the Tribunal was far in excess of the water required by such areas  

for irrigation.

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T. Arguments put forth by the State of Tamil Nadu   

T.1   Submissions of Mr. Shekhar Naphade:  

320. Mr. Naphade, learned senior counsel, opened the arguments  

on behalf of the State of Tamil Nadu by taking this Court through  

several documents, including the National Water Policies of 1987  

and 1992, the Helsinki Rules, 1966 and the Campione  

Consolidation of the International Law Association Rules on  

International Water Resources, relevant historical aspects of the  

matter and the evidence on record. He also took this Court through  

the scope and extent of the 1956 Act and pointed out the interplay  

between several sections of the Act. He submitted that the term  

'agreement' as mentioned in Section 2(c) of the 1956 Act included  

all agreements executed prior to the coming into force of the Act  

and that there was no limitation on any kind of agreement under  

this section. Even pre-1947 agreements in relation to the use,  

distribution or control of inter-State waters were brought under this  

ambit. Thus, Karnataka's submission that the 1892 and 1924  

Agreements were not within the scope of the said Act was baseless.

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He submitted that the river was a hydrological unit and remained  

unaffected by political boundaries.  

321. He then took this Court through certain statistical data and  

evidence on the basis of which water ought to be apportioned  

between the States. He submitted that the water ought to be  

apportioned equitably in line with the formula laid down in the  

Helsinki Rules, 1966. The density of population is much higher in  

Tamil Nadu than in Karnataka thus putting a greater demand on  

water for all sectoral uses. He submitted that the Cauvery basin  

upto the Mettur Dam is influenced by the South-West monsoons  

whereas the area downstream of the Mettur Dam is influenced by  

the North-East monsoons which are erratic, undependable and,  

being associated with cyclonic storms, also responsible for heavy  

rainfall and consequent loss of agricultural produce in the basin.  

Karnataka is primarily influenced by the more effective South-West  

monsoons whereas Tamil Nadu, lying downstream from the Mettur  

Dam, faces the brunt of the ineffective North-East monsoons. He  

stressed that the North-East monsoons could not be relied upon for  

irrigation owing to their unpredictability, a fact which Karnataka's

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witnesses had also deposed to. He referred to the Saldanha Report,  

1977, specifically the chart therein, which set out the storage  

capacity of water much above the 124 TMC figure. He expressed his  

apprehension that if Karnataka was granted further capacity to  

store water, such excess water retention would be the cause for  

further disputes between the States.  

322. On the aspect of soil capacity in the two States, he submitted  

that while Tamil Nadu has clayey soil which is ideal for paddy  

cultivation, Karnataka has red, loamy/laterite soil which is more  

suited for dry crop. He highlighted several pieces of evidence to  

buttress this argument including depositions from Karnataka's  

witnesses wherein it has been stated that Karnataka should restrict  

its rice crop and not grow a second rice crop. He submitted that the  

water requirement for growing paddy in Tamil Nadu is substantially  

less than the requirement for growing the same amount of paddy in  

Karnataka and there is greater productivity of growing paddy crops  

in Tamil Nadu. He also mentioned that the recommendations made  

by the C.C. Patel Committee were outdated and that Karnataka's  

reliance on the same was unjustified.

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323. He also set out the three main kinds of paddy crop grown in  

Tamil Nadu, namely, Kuruvai, Thaladi and Samba, and the water  

requirements for growing these crops and how Tamil Nadu's climate  

was ideal for growing such crop. He submitted that owing to the  

cropping pattern combined with the soil types, there should be no  

restriction on Tamil Nadu for growing second crop of paddy  

whereas Karnataka should be restricted from growing any second  

rice crop and even its first rice crop should be limited. He has  

placed reliance on data and evidence regarding Karnataka's Kabini  

and Hemavathy water projects. He argued that these projects had  

violated the provisions of the 1892 and 1924 Agreements and have  

affected Tamil Nadu's existing use of water. It is submitted that  

Karnataka constructed the Hemavathy Project without taking Tamil  

Nadu's consent and also failed to provide Tamil Nadu with details  

about the project as mandated under the 1892 and 1924  

Agreements. The Hemavathy reservoir was designed in such a way  

as to deplete its entire storage capacity without making provisions  

for carry-over storage thereby preventing any surplus water from  

being released to Tamil Nadu. Karnataka proposed the Kabini

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Project in such a manner as to utilise the entire yield of water at  

the site of the dam thereby denying water to the lower riparian  

States. The Kabini reservoir diminished the flow of water  

downstream to Tamil Nadu, thus, affecting Tamil Nadu's existing  

use. Karnataka submitted multiple proposals for supplementing the  

water from this project with lift irrigation schemes but this was  

expressly disallowed by the Tribunal in its final order. In spite of  

this, Karnataka has gone ahead and executed a lift irrigation  

scheme in the Kabini sub-basin and utilized the same for irrigation,  

while refusing to release water to Tamil Nadu.  

324. He submitted that while the Tribunal had overall allocated  

water to Karnataka for an area of 18.853 lakh acres, that figure  

included an area of 3.44 lakh acres which had been erroneously  

allowed on grounds of merit without any evidence or material to  

justify the same. Thus, the overall figure of 18.853 lakh acres  

deserved to be reduced by 3.44 lakh acres. This was without  

prejudice to the argument that the area to be considered had to be  

restricted to the existing area as in June 1990, the cut-off date for  

the Tribunal's consideration. Further, the area under consideration

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for Karnataka's Kharif paddy has to be reduced and the number of  

days for cultivation also had to be cut down from 145 to 125 days.  

He stressed on the evidence on record submitting that there is  

uncontroverted expert opinion which categorically states that  

Karnataka was responsible for wastage of large quantities of water  

and that Karnataka ought to reduce its paddy crop. This evidence  

had not been considered by the Tribunal. He also submitted that  

Karnataka should not be allowed to draw water from the major  

water reservoirs, viz., Harangi, Hemavathy, Krishna Raja Sagara  

and Kabini, during the summer season except for perennial crop  

and domestic needs and this, too, has to be monitored by the  

Regulatory Authority. He suggested that Karnataka ought to  

consider the possibility of building another dam above Mettur at  

the border to resolve its water problems.  

325. It is further argued by him that around 64% of Bengaluru lay  

outside the basin and the Tribunal was right to consider only             

1/3rd  of Bengaluru's needs while determining its water supply. Any  

further water supplied to Bengaluru would amount to trans-basin  

diversion in complete contravention of the principles of equitable

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apportionment, the National Water Policy and the Helsinki Rules,  

1966. Such trans-basin diversion is detrimental and would lead to  

chaos. He also submitted that Karnataka's contention that the  

Tribunal ought to have considered water projections for the year  

2025 would necessarily imply that water resources for Tamil  

Nadu's territories, especially the urban areas, would also have to be  

distributed in the same light. Karnataka did not follow the Town  

Planning Act/Rules and allowed Bengaluru to grow unchecked and  

unplanned and also failed to plan for the development of  

Bengaluru's water supply, a fact made clear from its Master Plan of  

1976 which significantly omits to provide for the domestic water  

needs of Bengaluru. Further, Karnataka did not treat the sewage  

water released by Bengaluru and such sewage was being released  

into the Cauvery which, in turn, was flowing down to Tamil Nadu.  

Karnataka would be able to procure a large amount of water for  

Bengaluru if it treated such sewage water.  

326. He argued that Karnataka already had adequate and alternate  

water resources for Bengaluru, including ground water, the  

Netravathy River and the Tungabhadra tributary of Krishna River.

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These resources were under-utilised and could be used to provide  

water to Bengaluru. Per contra, Chennai was woefully in short  

supply of water owing to lack of water resources and poor rainfall.  

Tamil Nadu was forced to divert water from other areas to Chennai  

to meet such shortfall. He argued that it was unfair to burden  

Tamil Nadu with the responsibility of providing for Bengaluru's  

water supply when Karnataka itself had been negligent in planning  

for it, especially when the Cauvery basin was a drought basin and  

large parts of Tamil Nadu were also drought prone.  

327. He also stressed on Tamil Nadu's method used to calculate  

crop water requirements as the guidelines based on Food and  

Agriculture Organisation (FAO) guidelines which were also recorded  

in the Government of India (GoI) Guidelines, 1984. He took this  

Court through the various factors and calculations involved under  

these guidelines, including evapo-transpiration, percolation loss,  

puddling and nursery requirements, system efficiency and effective  

rainfall. He submitted that Tamil Nadu had adopted calculations  

for the above factors based on the FAO and that Karnataka's

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contention that Tamil Nadu had miscalculated the extent of evapo-  

transpiration and effective rainfall was baseless.  

328. He argued that as on the cut-off date (June 1990), Tamil Nadu  

had developed/irrigated an area of 29.269 lakh acres whereas the  

area developed in 1972 was 28.208 lakh acres. Despite the above  

figures, the Tribunal gave a concession for only 24.708 lakh acres  

while also disallowing large areas for second crop even though the  

agro-climatic conditions prevalent in the area were ideal for raising  

two crops. He highlighted that while Tamil Nadu had adopted 60%  

overall efficiency while calculating the gross irrigation requirement  

which was the maximum possible level allowed, the Tribunal chose  

to adopt a higher figure of 65%. He took this Court through the  

evidence and record to submit that the Tribunal ought to have  

allocated a higher quantum of water to Tamil Nadu and reduced  

the quantum allocated to Karnataka. He submitted that under the  

1924 Agreement, both Karnataka and Tamil Nadu were allowed to  

extend the area under irrigation solely by improvement of duty,  

without any increase in the quantity of water used, apart from the  

area permitted under Clauses 10(iv) and 10(v). Karnataka strictly

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adhered to the 1924 Agreement till 1974 but claimed entitlement  

for areas which it had not even developed after 1974. Tamil Nadu  

never claimed any extra quantity of water other than the volume it  

was entitled to under the Agreement. He also stressed on the need  

to allow Tamil Nadu double cropping owing to the favourable  

climatic and soil conditions whereas Karnataka ought not to be  

allowed double cropping owing to its drought areas and sub-

standard soil conditions.  

329. He then countered Karnataka's submission that groundwater  

was an additional resource and submitted that such water supply  

could not be considered as an additional resource as it was  

recharged by surface water and was subject to various factors like  

rainfall and soil characteristics. Ground water levels were not  

consistent throughout the year and Karnataka's construction of  

water projects had even reduced the flow of water into the Mettur  

Reservoir which, in turn, had drastically reduced the groundwater  

recharge level available to Tamil Nadu. Estimating the levels of  

ground water was scientifically complicated and difficult requiring  

huge amounts of data and field exploration. In fact, there was no

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single comprehensive technique to determine ground water and  

Karnataka's own witness had deposed that it was not possible to  

estimate the recharge component of ground water when it was  

recharged by surface flows and rainfall. The other Water Tribunals  

like NWDT and KWDT had not considered groundwater to be a  

factor while apportioning water, a fact which was recorded by the  

Tribunal. The UNDP Report relied upon by Karnataka to establish  

its argument was not relevant in the present context as the same  

was outdated and there had been a substantial change in the flow  

regime. The Central Water Board too had not agreed with the  

assessment of the UNDP Report, concluding that the use of ground  

water could not be reckoned as use of the Cauvery river water. He  

also referred to the study conducted by W. Barber of World Bank,  

1985 and the UNDP Study Report, 1973 in that regard.  

330. He submitted that in any event, from February to June/July,  

the water requirements of the entire Delta region had to be met  

from ground water as there was no surface flow during that time.  

Reports from government bodies recorded that the groundwater  

was required for domestic and livestock uses during the aforestated

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months and, thus, such water could not be used for irrigation  

purposes. Additionally, groundwater in the Delta region was used  

for protective irrigation and to grow early nurseries. He submitted  

that the evidence on record showed that in the Cauvery Delta  

region, reduction in surface flow resulted in lesser groundwater  

recharge which ultimately resulted in salt water intrusion from the  

sea. The quality of available ground water was ultimately poor,  

saline/brackish and unsuitable for use.  

331. He submitted that Karnataka could not ask for 5 TMC water  

out of the 10 TMC which had been allotted to Tamil Nadu towards  

environmental needs. He submitted that a certain minimum flow of  

the river had to be maintained to keep the river free flowing as set  

out in the National Water Policy, 2002. Such natural flow could not  

be considered as wastage as it was essential for maintaining the  

ecology and ecosystem in and around the river. He also submitted  

that as regards the allegation that 88 TMC of water was going into  

the sea and being wasted, there were several factors to consider in  

that regard and that Tamil Nadu was taking utmost care to ensure  

that no wastage occurred. A certain minimum standard of outflow

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had to be maintained to prevent erosion, reduce salt water  

intrusion and to maintain marine life and bio diversity. Further, the  

topography of the Delta region was such that no viable storage area  

could be built to conserve this water. He submitted that the                

North-East monsoons, being erratic, would result in heavy showers,  

not all of which could be conserved.  

332. Further, Karnataka's contention that there had to be an equal  

apportionment of water between the two States was untenable. He  

relied upon the observation made by the Narmada and Krishna  

Water Disputes Tribunals that the principle of equality did not  

imply that there must be an equal division of water between the  

States but instead meant that the States must have equal  

consideration and equal economic opportunity. Such equality  

would not necessarily result in the same quantity of water being  

provided to the parties.  

333. He stressed that Tamil Nadu needed month-wise release of  

water from June onwards to ensure that its Kuruvai crops were  

irrigated. Post 1974, Karnataka had been impounding water in its  

reservoirs and delaying flow of water to Tamil Nadu and contending

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that any shortfall could be adjusted at the end of the season. He  

submitted that the water was needed at a particular time, from  

June onwards, to irrigate its crops and that any end-of-season  

release of water would not fulfill the objective of such water being  

used for irrigation purposes.  

334. He also argued that Karnataka had been persistently defiant  

in preventing Tamil Nadu from utilizing its share of the Cauvery  

water and that such defiance necessitated the need for the Cauvery  

Management Board. Karnataka had started construction on four  

reservoirs across the Cauvery tributaries, viz., Kabini, Hemavathy,  

Suvarnavathy and Harangi, without taking the requisite approvals  

from the Planning Commission or consent from Tamil Nadu.  

Karnataka also objected to the formation of the Tribunal and  

needlessly delayed the proceedings. Even after the formation of the  

Tribunal, Karnataka violated the Tribunal's interim order which  

had directed it to release 205 TMC of water at Mettur. Karnataka  

even went so far as to promulgate an Ordinance to nullify the  

interim order which was then set aside by this Court. Even when  

compelled to follow the interim order, Karnataka delayed in

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constituting the implementation machinery required to enforce the  

said order and also challenged the Tribunal's order in separate  

court proceedings to delay its implementation. Karnataka also  

refused to strictly follow the order thereby failing to ensure monthly  

quantities of water inflows at the Mettur during the June period.  

Even after the final award was passed, Karnataka failed to ensure  

stipulated flows mandated by the award. In the light of Karnataka's  

transgressions, he submitted that there was a need for effective  

machinery to implement the Tribunal's order.  

335. He also argued that the Tribunal was completely justified in  

rejecting Kerala's claims for trans-basin diversion of water. Kerala  

had wrongly claimed that the Cauvery basin was a surplus basin,  

something completely contrary to fact and which had been recorded  

by the Tribunal. Trans-basin diversion of water could not be  

allowed unless the needs of in-basin requirements were met and  

even then, such diversion was against the spirit of the Inter-State  

Water Disputes Act. Kerala wished to operate its hydro-electric  

projects but the Tribunal had clearly held that irrigation projects  

had to be given preference to. Kerala tried to hoodwink the Tribunal

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383    

by adding irrigation components to its hydro-electric projects. The  

irrigation components were incidental to the primary use of these  

projects and in fact, such projects had not even been approved by  

the competent authorities.  

336. Even otherwise, the irrigation sought to be achieved by Kerala  

was excessively high and was done so without keeping in mind its  

limitations in respect of soil and topography which required  

excessive water to be utilised. Kerala was seeking to grow summer  

and perennial crops utilizing water from a deficient basin which  

was an unsuitable proposition. Kerala already had a good irrigation  

system in place and such irrigation was supplemented by rainfall  

which it receives. Kerala also received drinking water supply from  

the Siruvani reservoir and several dams had already been  

constructed across its rivers for providing water. The Tribunal,  

thus, rightly rejected Kerala's claims.  

337. He also challenged Karnataka's submission as regards its  

drought area. He submitted that there is no universally accepted  

definition of drought and if at all drought is to be considered as a  

factor for equitable apportionment, then Tamil Nadu too has a

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significant drought area. Karnataka's claimed drought area is  

highly exaggerated but if the Tribunal was to consider Karnataka's  

drought area while allocating water, then Tamil Nadu also ought to  

be given a proportionate share of water to irrigate its own drought  

area.  

 

T.2    Contentions raised by Mr. Rakesh Dwivedi:  

338. Mr. Dwivedi, learned senior counsel appearing for Tamil Nadu,   

argued, apart from other aspects which we have already addressed,  

on the aspect of injury suffered by/prejudicial affectation caused to  

Tamil Nadu on account of Karnataka's actions. He submitted that  

there was ample evidence on record to prove that Karnataka's  

upstream abstraction post 1974 substantially reduced the area and  

quantum of water available to Tamil Nadu. Karnataka increased  

the area of irrigation much beyond the scope of the 1924  

Agreement which, in turn, affected the existing irrigation of Tamil  

Nadu and the evidence for the same had been placed before the  

Tribunal. It was further submitted that existing use of water was a

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facet of equitable apportionment and Karnataka had failed to prove  

that its planned diversion of water would not harm the existing,  

established use. Tamil Nadu's claim was not with regard to the flow  

of water, as wrongly claimed by Karnataka, rather it was based on  

protection of existing use established under the 1892 and 1924  

Agreements.  

339. He argued that Karnataka's plea that the erstwhile State of  

Madras effectively had veto power over its water projects was  

untenable. The entire purpose of seeking consent from Madras  

before constructing any water project was to ensure that existing  

irrigation was not jeopardized and even otherwise, consent was  

always required from the lower riparian State when constructing  

such projects. He also submitted that there had been no violation  

of natural justice by the Tribunal while hearing the matter. It was  

submitted that the Tribunal had clearly analysed every parameter  

and made suitable changes to such parameters as required while  

passing the final order. Tamil Nadu's affidavit (Ext. 1665) was  

merely a collation of materials already available on record.

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Pertinently, Karnataka itself contended that the Tribunal's  

Assessors were not competent to assess crop water requirement as  

they relied on Ext. 1665 but then relied upon the Assessors'  

recommendation for justifying its own crop water requirement.   

340. Both Mr. Naphade and Mr. Dwivedi touched upon the scope  

and extent of this Court's power under Article 136 of the  

Constitution of India to hear an appeal against the Tribunal's  

orders. It was submitted that this Court had the discretion to use  

such power and that while the extent of this power is wide in  

amplitude, this Court has traditionally applied judicial restraint  

while exercising it. It is submitted that the present dispute is  

complex and riddled with factual and scientific complexities which  

this Court may find insurmountable while assessing. It is also put  

forth that the Tribunal had taken into account various factual  

aspects and relied upon the assistance of technical experts while  

considering the scientific principles applicable to the present  

dispute in the course of the long hearing in the matter. The  

Tribunal has also considered socio-economic factors and public  

interest while rendering its final decision. Considering the above

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submissions, a thorough understanding of scientific principles as  

well as possessing a relevant discipline in science to apply the  

scientific principles to the factual matrix is required and it is an  

exercise which would not fit into the accepted principle of judicially  

manageable standards.  

341. Mr. Naphade and Mr. Dwivedi have placed reliance on number  

of decisions to bolster their stand some of which have already been  

referred to and some shall be referred to wherever necessary.   

 

U. Arguments advanced on behalf of the State of Kerala  

342. Mr. Jaideep Gupta, learned senior counsel appearing on  

behalf of the State of Kerala, submitted that Kerala contributed  

around 147 TMC to the Cauvery basin, around 20% of the water,  

and had asked for a proportionate share of water by claiming                  

99.8 TMC. The Tribunal, however, had allocated a meagre 30 TMC  

of water to Kerala, around 4%, for its needs. Such allocation is  

absolutely not equitable. He argued that equity, and not equality,  

should govern the allocation of water between the States and that it  

was unreasonable that Karnataka and Tamil Nadu should be given

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equal share of the entire amount of water allocated by the Tribunal.  

The concept of equity has been recognized in the Helsinki Rules,  

1966 and the factors governing such apportionment have also been  

mentioned therein, later affirmed in the Berlin Rules.  

343. He went into the historical perspective and explained to this  

Court as to how Kerala, which was not party to the 1892 and 1924  

Agreements, became introduced to the dispute. He submitted that  

Karnataka and Tamil Nadu were not wholly representative of the  

Cauvery basin and that Kerala too was an integral part of the  

basin, contributing a large percentage of the water. The 1892 and  

1924 Agreements executed by and between Mysore and Madras did  

not bind Kerala, which was not party to the same. None of the  

predecessor States to Kerala, viz., Travancore, Cochin or Malabar,  

were recognized as interested parties during the disputes between  

the riparian States of the Cauvery basin and these riparian States  

also objected to the involvement of Kerala in the dispute. He  

elaborated that even as per the definitions given in the 1956 Act,  

Kerala could not be considered as a principal successor State to its  

predecessor as its predecessor States were not party to the 1924

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Agreement. As the 1892 and 1924 Agreements were in the form of  

treaties entered into between two sovereign entities, the Tribunal  

lacked the jurisdiction to enforce them. He also submitted that  

when Kerala raised its objections before this Court regarding the  

necessity to be involved in the matter, it was told to abstain from  

the proceedings until the matter was finally adjudicated between  

Tamil Nadu and Karnataka.  

344. He submitted that allocation of water by the Tribunal was  

required to be based on certain factors and that such allocation  

had to be done in a particular manner. First, the Tribunal had to  

determine the total yield of basin water including surface and  

ground water. Then, the total yield of water had to be apportioned  

and there had to be a mechanism for release of such water. Finally,  

there needed to be a monitoring system to ensure that such release  

of water was done properly. He also submitted that the allocation of  

water had to be done on a need-based priority and the Tribunal  

ought to have considered the consumptive and non-consumptive  

needs while making such allocation.   

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345. He submitted that although the Kabini and Bhavani  

tributaries of the Cauvery flowed through the erstwhile Malabar  

district of Madras, yet no developmental activities could be taken  

up in that region. Even after the State of Kerala was formed in 1956  

by combining Travancore, Cochin and Malabar, it could not take up  

any developmental activities in the Malabar region due to protests  

from Tamil Nadu and Karnataka who argued that the 1924  

Agreement could only be reviewed in 1974. Even after 1974, all but  

one of Kerala's projects were denied sanction by the Central  

Government despite the fact that the Cauvery Basin in Kerala had a  

high head and steep gradient, thus, making the area ideal for  

generation of hydro-electricity. Owing to its geography and  

topography, Kerala has a higher capacity/potential to generate  

hydro-electricity. This fact had been proved before the Tribunal.  

Kerala also has an acute shortage of electricity, a problem which  

has stunted its industrial growth and there is a pressing need to  

utilise the potential of water projects in the State. There was also  

an inability to set up alternate types of power plants like nuclear  

power owing to the topography of the region. Also, the rainfall

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distribution in Kerala was such that there is no rain in summer  

and the west flowing rivers within the State go dry during the  

summer thereby causing water scarcity. All these factors have  

necessitated the construction of water projects in Kerala.  

346. He argued that the Tribunal's refusal to allow Kerala's water  

projects is based on an erroneous assumption that such projects  

would result in trans-basin diversion of water. He submitted that  

Tamil Nadu and Karnataka had exaggerated their claims resulting  

in an impression being created that the Cauvery basin could not  

cater to their needs and, hence, was water deficient. He argued that  

legally, there is no bar on preventing trans-basin diversion from a  

water deficit basin. He also touched upon the concept of the  

doctrine of stability and submitted that while the Tribunal had the  

jurisdiction to allocate the water to the States, the States are to be  

allowed to utilise such water in a manner that they deemed fit and  

that the Tribunal could not dictate as to how the States used such  

water. Next, he argued that in the present case, trans-basin  

diversion is essential to ensure the most economical way of utilizing  

the river's water and that a basin State must have full freedom to

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utilise the waters which it is entitled to. He further argued that the  

Tribunal had allowed water projects to come up in Tamil Nadu and  

Karnataka which have actually diverted water from the Cauvery  

basin but in Kerala's case, where there was an urgent and pressing  

need for such projects, the Tribunal has rejected Kerala's  

proposals. Finally, he argued that the rights in interstate river  

waters belonged to the inhabitants of the basin State and not to the  

inhabitants of the basin itself.  

347. He argued that the Tribunal has erroneously omitted to  

account for 20TMC of ground water which was available in Tamil  

Nadu. Tamil Nadu had access to ground water resources while  

Kerala did not as set out in the report of the Cauvery Fact Finding  

Committee. He also argued that the Tribunal has failed to account  

for the hydrology of the basin, particularly the contribution of water  

by each basin State. The Tribunal ought to have allocated  

appropriate volume of water for Kerala's Banasurasagar project, the  

Mananthody Scheme and Kerala Bhavani Scheme, apart from other  

water projects being developed in the State.

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348. He also challenged the Tribunal's decision to make Kerala  

adopt a single-crop paddy. He argued that Tamil Nadu and  

Puducherry had been allocated water for three-crop paddy as also  

for dry irrigated crops, whereas Kerala's farmers had been barred  

from cultivating their crops in their traditional manner. He argued  

that the Tribunal's decision is contrary to the prevailing geological,  

geomorphological, climatic and soil patterns prevalent in the State  

and also erroneous in restricting Kerala from optimal cropping  

patterns.  Combined with the Tribunal's decision to restrict all lift  

irrigation schemes, the Tribunal's decision left Kerala with limited  

cultivation.  

349. He has further submitted that Tamil Nadu has been  

intentionally obstructing Kerala from setting up water projects as it  

was benefitting from the transitional provisions in the Tribunal's  

award. He submitted that pending the completion of its water  

projects, Kerala was unable to retain the full amount of 30TMC  

water allocated to it. The Tribunal has directed Kerala to release  

water in excess of 30TMC to Karnataka and Tamil Nadu until it is

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capable of utilizing the full capacity. To benefit from this  

transitional provision, Tamil Nadu has purposely been impeding  

Kerala's water projects.  

350. He submitted that the Tribunal has failed to make provisions  

for surplus water, restricting Kerala's water allocation to 30 TMC a  

year in case of a surplus. This would benefit the other States due to   

lack of a specific provision for sharing surplus water with Kerala.  

He also submitted that Tamil Nadu is responsible for wasting large  

amounts of water and that the Tribunal has failed to rectify the  

situation. He also submitted that Kerala ought to be compensated  

for the water supplied from its Siruvani reservoir to Coimbatore. He  

referred to the judgments of in In Re: Presidential Reference  

(Cauvery Water Disputes Tribunal) (supra) and Tamil Nadu  

Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai  

Padhugappu Sangam v. Union of India and others48 while  

making his submissions.  

                                                           48 1990 (3) SCC 440

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V. Submissions urged on behalf of  Union Territory of  Puducherry  

351. Mr. Nambiar, learned senior counsel appearing for the Union  

Territory of Puducherry, submitted that Puducherry had claimed 9  

TMC of water for its needs whereas the Tribunal had allocated only  

7 TMC of water to it. Puducherry was now seeking only an  

additional 1 TMC of water to be allocated to it from the month of  

June onwards which could either be released by Tamil Nadu or be  

allocated to Puducherry out of the 10 TMC reserved by the Tribunal  

for environmental purposes.  

352. He submitted that Puducherry's topography, soil and climatic  

conditions favoured cultivation of only paddy crop and that no  

other crop could survive in the heavy clay prevalent in the region's  

soil. Further, the topography in the region being plain and  

monotonous, there was no scope for putting up storage structures  

for holding water and Puducherry was completely dependent on the   

water released by Mettur dam. He submitted that Puducherry has  

27,000 acres of cultivable area which has remained static over the  

years and that there is no scope for increase of such area. He also  

submitted that the rainfall in the region is erratic coming primarily

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from the North-East monsoons. This resulted in heavy bursts of  

rain with long, dry spells. Such sudden and heavy influx of water  

damaged the standing crops and flowed into the sea since there is  

no facility capable of storing such water. Thus, Puducherry's only  

reliable source of water is from the Mettur Dam. However, water  

released from the Mettur Dam is sometimes insufficient for  

Puducherry's needs and is incapable of irrigating Puducherry's  

entire paddy crop.  

353. He then submitted that there is no extractable ground water  

in the region due to the intrusion of saline water from the  

neighbouring Bay of Bengal. He submitted that saline water has  

intruded 6 kilometres into the land along the river channels and  

has rendered wells and shallow aquifers unusable for irrigation and  

domestic needs. In light of this, he submitted that ground water  

could not be taken into consideration while allocating river water.  

He also argued that the Tribunal's scope of adjudication is limited  

to inter-State river water and that ground water could not be  

treated as river water. While the Berlin Rules set out that river

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water included groundwater, no such definition is available either  

in the Constitution or any other Indian law.  

354. He also submitted the cropping pattern in Puducherry  

required higher allocation of water. He submitted that Kuruvai crop  

is grown between July and September after which Thaladi crop is  

grown on the same land and then the Samba crop is grown. He  

submitted that the Kuruvai and Samba crop could only be planted  

after flushing off the salt on the land. This flushing required around  

0.5TMC of water before planting the crop in June. The Tribunal,  

however, erroneously directed Puducherry to obtain the requisite  

water from rainwater, the supply of which was not only erratic but  

also primarily occurring from October onwards.  

355. He submitted that despite the Tribunal having allocated 7TMC  

of water to Puducherry, such volume is not being made available to  

it. He submitted that since Puducherry does not have adequate  

storage capacity, such volume of water ought to be made available  

by Tamil Nadu at the border.  

356. He argued that Puducherry has not filed an appeal under  

Article 136 of the Constitution against the Tribunal's final order as

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it is of the opinion that this Court could not entertain such an  

appeal against the final order. Hence, Puducherry had filed an  

application under Section 5(3) of the 1956 Act instead, which is  

pending. He argued that since this Court is hearing the matter  

finally, Puducherry's application under Section 5(3) ought to be  

considered by this Court.  

357. He also submitted that the waters of the Cauvery ought to be  

free-flowing for effective utilisation and in the light of the same,  

Karnataka ought not to be allowed to build any further structures  

to impede/obstruct such flow.  

W. Arguments on behalf of Union of India  

358. Mr. Ranjit Kumar, the learned Solicitor General of India,  

contended that the purpose of enacting the 1956 Act is to provide a  

mechanism for adjudication of water disputes arising among the  

various States and that it is a complete code in itself. He took this  

Court through various sections of the Act to buttress his argument  

that a con-joint reading of Sections 4, 6, 6A and 11 provides for the  

constitution of a Tribunal to hear water disputes, the power to  

make a scheme to implement the decision of the Tribunal and

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further there is a constitutional bar on the jurisdiction of this Court  

and other courts in respect of such water disputes. Such extensive  

provisions highlight that the Act is a complete code in itself.  

359. He submitted that as per the provisions of the Act, once the  

Tribunal's award has been published in the Official Gazette, the  

same is final and the mechanism for implementation of this award  

is set out in Section 6A of the Act and empowers the Central  

Government to make schemes to implement the said award. Such  

scheme had to be tabled before both Houses of the Parliament. The  

Central Government is also empowered to decide the jurisdiction  

and powers of the Authority established to implement the  

Tribunal's award. As contrasted with the provisions of the  

Consumer Protection Act which allowed for the Consumer Forum's  

order to be sent to a civil court for execution in case the Forum was  

unable to execute it, the provisions of the 1956 Act only allows for  

the award of the Tribunal to be treated as a decree of this Court  

and be implemented by virtue of a Central Government scheme.  

360. It is submitted by Mr. Ranjit Kumar, learned Solicitor General  

appearing for the Union of India, that the word used ―may‖ instead

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of ―shall‖ has a purpose because in certain situations there may be  

no necessity to frame a scheme for implementation of the awards  

passed by the Tribunal.  He has apprised us that awards were  

passed by the Krishna Water Disputes Tribunal, Godavari Water  

Disputes Tribunal and Narmada Water Disputes Tribunal and a  

scheme for implementation of award was framed when required and  

only in the case of Narmada Water Disputes Tribunal and no  

scheme was framed in respect of awards passed by the other  

Tribunals. According to him, framing of a scheme is not mandatory  

and the Central Government being alive to its role shall do the  

needful at the relevant time.  It is further argued that it is the  

mandate of the 1956 Act that the scheme framed under Section 6A  

is to be by laying before both Houses of the Parliament and, hence,  

it has to be treated as a legislative policy and, therefore, the Court,  

in such a situation, should not issue any direction. He has drawn  

inspiration from the authorities in Atlas Cycle Industries Ltd.  

and others v. State of Haryana49, Common Cause v. Union of  

India and others50, K.T. Plantation Private Limited and  

                                                           49 (1979) 2 SCC 196  50 (2003) 8 SCC 250

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another v. State of Karnataka51 and Accountant General,  

State of Madhya Pradesh v. S.K. Dubey and another52.  Learned  

Solicitor General has also referred to Craies on Statute Law  

Interpretation which has been noticed with approval in Hukum  

Chand v. Union of India53 which speaks that there are three kinds  

of laying, namely, (i) laying without further procedure; (ii) laying  

subject to negative resolution; and (iii) laying subject to affirmative  

resolution. Emphasizing on ―subject to affirmative resolution‖,  

learned Solicitor General would contend that Section 6(7)  

essentially commands that this Court should not issue a  

mandamus to the executive to enact a particular law in a particular  

manner at particular time or a stipulated time frame. He would  

further urge that Section 6A is a complete code in itself and,  

therefore, this Court should leave it to the discretion of the Central  

Government.  

361.  In oppugnation to propositions put forth by the learned  

Solicitor General, learned counsel for the other States and the  

senior counsel for the Union Territory of Puducherry submitted  

                                                           51 (2011) 9 SCC 1  52 (2012) 4 SCC 578  53 (1972) 2 SCC 601

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that Section 6A does not confer any extraordinary power on the  

Union of India except that it has the authority to frame a scheme  

singularly for implementation of the award as passed by the  

Tribunal or if modified by this Court.  The further submission is  

that the formulation of the scheme and other procedural ancillaries  

do not confer any greater status on the authorities coming into  

existence under the scheme.    

X. Our findings on issues of allocation  

X.1 Principles of apportionment to be followed:  

362. Having dealt with the issues of paramountcy, perceived  

unconscionability of the Agreements, continuation thereof after  

coming into force of the 1956 Act as well as non-maintainability of  

the dispute on the basis of such Agreements being in infraction of  

Article 363, it is now essential at this juncture, in the backdrop of  

the above contentious assertions, to dwell on the principles of  

allocation of water of the inter-state Cauvery river and the make-up  

thereof for uniform application. That apart, the fact of the  

Agreement of 1924 having expired after 50 years in the year 1974  

has been already determined. As rightly minuted by the Tribunal,  

having regard to the progression of events after the execution of the

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said Agreement, the accusations of breach and violations of the  

Agreement have to be treated as inconsequential at this distant  

point of time. Besides, there is no objective and judicially  

manageable standard to examine and evaluate the same in a golden  

scale or embark upon in an exercise of exactitude and precision to  

weigh the impact thereof for determination of allocation of the  

share.   

363. As enunciated by this Court in In Re: Presidential Reference  

(Cauvery Water Disputes Tribunal) (supra), the waters of an  

inter-State river passing through the corridors of the riparian States  

constitute national asset and cannot be said to be located in any  

one State. Being in a state of flow, no State can claim exclusive  

ownership of such waters or assert a prescriptive right so as to  

deprive the other States of their equitable share. It has been  

propounded therein that the right to flowing water is well-settled to  

be a right incident to property in the land and is a right publici juris  

of such character, that while it is common and equal to all through  

whose land it runs and no one can obstruct or divert it, yet as one  

of the beneficial gifts of Nature, each beneficiary has a right to just  

and reasonable use of it. We endorse the view of the Tribunal in the

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attendant perspectives that the acknowledged principle of  

distribution and allocation of waters between the riparian States  

has to be done on the basis of their equitable share, however  

contingent on the facts of each case.  

364. For the sake of brevity, we do not intend to dilate anew on the  

judicial precedents on this aspect of sharing of water of inter-state  

river and the evolution and/or shift of the principles relatable  

thereto from the ―Harmon Doctrine‖ to that of equitable  

apportionment, a prescript internationally recognized and being  

applied in resolution of disputes pertaining thereto. This principle of  

equitable apportionment as is now intrinsically embedded generally  

in a pursuit for apportionment of water of an international drainage  

basin straddling over two or more States predicates that every  

riparian State is entitled to a fair share of the water according to its  

need, imbued with the philosophy that a river has been provided by  

nature for the common benefit of the community as a whole  

through whose territory it flows even though those territories may  

be divided by frontiers as postulated in law. With reference, in  

particular, to the Helsinki Rules of 1966, it has been expounded  

hereinbefore that Articles IV and V thereof recognize equitable use

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of water by each basin State, setting out the factors, not exhaustive  

though, to be collectively taken into consideration as a whole. The  

view that the principle of equality does not imply equal division of  

water but connotes equal consideration and equal economic  

opportunity of the co-basin States and that justice ought to be done  

to them, has been emphasized in the course of the arguments. To  

conceive that equality rests on equal sharing of water within an  

arithmetical formula, would be fundamentally violative of the  

established conception of equitable apportionment because the said  

concept inheres a multiple factors. It is the obligation of the  

Tribunal to address the same and the duty of this Court is to  

adjudge within the permissible parameters of the justification of the  

said adjudication. To reiterate, having regard to the above  

propositions as well as the provisions of the 1956 Act, the  

dissension has to be addressed in the backdrop of equal Status of  

the States and the doctrine of equitability.  

365. Though noticed in the passing hereinbefore, the prevalent  

rules as guiding precepts to endeavour equitable apportionment of  

waters of an international drainage basin and conceptually

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extendable to an inter-state river deserve somewhat detailed  

scrutiny.  

366. There is no quarrel that the Helsinki Rules on the use of  

waters of international rivers lack statutory status of binding  

nature, yet the same, having been adopted by the International Law  

Association in its Conference held at Helsinki in August, 1966, set  

down the criteria to determine equitable utilization of waters of an  

international drainage basin. As the relevant portion thereof has  

been extracted before it is not necessary to reproduce the same.  

However, suffice it to refer to the relevant clauses for the present  

purpose. The statement in Article I that the general rules of  

International Law, as contained in the Chapters comprising the  

Rules, are applicable to the use of the waters of an international  

drainage basin except as may be provided otherwise by convention,  

agreement or binding custom among the basin States, attests the  

non-statutory character thereof. Article II defines international  

drainage basin to be a geographical area extending over two or more  

states determined by the watershed limits of the system of waters,  

including surface and underground waters, flowing into a common  

terminus. The idea of international drainage basin per se inherits

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some identifiable flexibility of the basin vis-a-vis the constituent  

states, separated by watershed limits of the system of waters so  

much so that in an exigent fact situation the basin need not be  

rigorously confined to the area immediately abutting it in a given  

state but depending on the situational topography may include  

other areas of the state concerned entitled to the benefit of the  

basin. The perception of ―basin state‖ as explicated in Article III is a  

state, the territory of which includes a portion of an international  

drainage basin and projects it to be a single synthesized territorial  

component. As per Article IV, under Chapter II of the Rules, each  

basin state is entitled, within its territory, to a reasonable and  

equitable share in the beneficial uses of the waters of an  

international drainage basin. Article V enumerates the relevant  

factors, not exhaustive or limited thereto, to determine the  

reasonable and equitable share within the meaning of Article IV.  

These factors being unavoidably required to be extracted, are  

quoted hereinbelow:-  

―1. The geography of the basin, including in particular  the extent of the drainage area in the territory of each  

basin state;

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2. The hydrology of the basin, including in particular  

the contribution of water by each basin state;  

3. The climate affecting the basin;  

4. The past utilization of the waters of the basin,  including in particular existing utilization;  

5. The economic and social needs of each basin state;  

6. The population dependent on the waters of the  

basin in each basin state;  

7. The comparative costs of alternative means of  satisfying the economic and social needs of each basin  

state;  

8. The availability of other resources;  

9. The avoidance of unnecessary waste in the  

utilization of waters of the basin;    

10. The practicability of compensation to one or more of  the co-basin States as a means of adjusting conflicts  

among uses; and  

11. The degree to which the needs of a basin State may  be satisfied, without causing substantial injury to a co-

basin state.‖  

                 [Emphasis supplied]  

 

367. Article V explicates in clear terms that the weight to be given  

to each factor as above is to be determined by its importance in  

comparison with that of other relevant factors, but in determining  

what is reasonable and equitable share, all relevant factors are to  

be considered together and the conclusion has to be reached on the

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basis of the whole. The above factors, although not exhaustive, have  

been construed to be of significant bearing to ascertain the  

reasonable and equitable share of waters in an international  

drainage basin.  The said principles can be regarded as functional  

dynamics while equitable distributing the water in an inter-State  

river disputes. The salient feature of all these factors has to have  

inherent variability and inevitable flexibility thereof having regard to  

the local conditions, for it is difficult to ignore the undeniable and  

common emphasis necessary to ensure beneficial use of the  

available resources for a basin state and logically for its dependent  

populace warranted by the economic and social needs. Be it stated,  

while determining the said needs, amongst others, past and existing  

utilization of the water have to be borne in mind. To remain  

oblivious to the same would amount to playing possum with the  

doctrine of equitable distribution in praesenti.  The noticeable  

quintessence of the determinants is the predication for a delicate  

balance in adjustments of the needs based on realistic, reasonable,  

judicious and equitable canons so much so that while satisfying the  

requirements of a basin state, a co-basin state is not subjected to  

any substantial injury. Though in terms of Articles VI and VII, any

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other category of users is not entitled to any inherent preference  

over any other use or category of users, yet the precedence of an  

existing reasonable use of a basin state over a proposed future use  

of a co-basin state has been recognized. Significantly, in terms of  

Article VIII, an existing reasonable use may continue in operation,  

unless the factors justifying its continuance are outweighed by  

other factors leading to the conclusion that it be modified or  

terminated so as to accommodate a competing incompatible use  

clearly signifying that an existing use is also not absolute in terms  

and is subject to exigency based adjustments.   

368. Substantially on the same lines is the Campione Consolidation  

of ILA Rules on International Water Resources 1966-1999  

(hereinafter to be referred to as the ―Campione Rules‖). The  

distinguishing attribute of these Rules is the inclusion of water of  

an aquifer, i.e., underground water or ―fossil waters‖ intercepted by  

the boundary between the two or more states as international  

ground water so much so that it would form an international basin  

or part thereof qua the relevant factors to determine reasonable  

equitable share. These Rules include the criterion of  

interdependence of underground waters and other waters, including

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any interconnections between aquifers and any leaching into  

aquifers caused by activities in areas under the jurisdiction of the  

basin states.  

369. The next in line, before adverting to the National Water Policy  

of 1987 and 2002, is another set of rules on international drainage  

basin called the Berlin Rules adopted by the International Law  

Association in its Berlin Conference in the year 2004. On the aspect  

of equitable utilization, Article 12 thereof provides that basin states  

would in their respective territories manage the waters of an  

international drainage basin in an equitable and reasonable  

manner, having due regard for the obligation not to cause  

significant harm to other basin states and in particular, the basin  

states, would develop and use the waters of the basin in order to  

attain optimal and sustainable use thereof.  The interest of the  

other basin states are to be kept in view.   

370. Article 13 of the Rules catalogues as well the relevant factors  

to determine the equitable and reasonable use of a basin state.   

While reiterating in essence the Rules as prescribed by the Helsinki  

Rules, the additional aspect to be considered is minimization of

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environmental harm.  Article 14 of these Rules stipulates that in  

determining an equitable and reasonable use, the states shall first  

allocate waters to satisfy vital human needs and that no other use  

or category of uses shall have an inherent preference over any other  

use or category of uses. Article 17 postulates that every individual  

has a right of access to sufficient, safe, acceptable, physically  

accessible and affordable water to meet his vital human needs and  

it is the obligation of the States to ensure the implementation of  

right of access to water on a non-discriminatory basis.  

371. The common thread decipherable from these Rules is the  

universal acknowledgment of the principle of equitable utilization as  

an effective and workable tool for the management of waters of an  

international drainage basin.   

372. Presently, we shall refer to the National Water Policy which, in  

our estimate, occupies an extremely significant space to spearhead  

the planning and development of water resources. In its 1987  

version, it sounded a threshold caveat that water is a prime natural  

resource, a basic human need and a precious national asset. While  

emphasizing that this resource is one of the most crucial elements

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in development planning, the policy announced that it is a scarce  

and precious national asset to be planned, developed and conserved  

on an integrated environmentally sound basis, keeping in view the  

needs of the States concerned.  It underlined that resource planning  

in the case of water has to be done for a hydrological unit such as  

drainage basin as a whole or for a sub-basin and that all individual  

developmental projects and proposals should be formulated by the  

States and considered within the framework of such an overall plan  

for a basin or sub-basin so that the best possible combination of  

options can be made.    

373. As is manifest from the policy, it enjoined that water should be  

made available to water deficient areas by transfer from other areas  

including transfers from one river basin to another based on  

national perspectives after taking into account the requirements of  

the areas/basins. That apart, making provision for drinking water  

should be a primary consideration which was also highlighted. As  

regards the ground water resources, it was marked that exploitation  

thereof should be so regulated as not to exceed the recharging  

possibilities as also to ensure social equity and to prevent ingress of  

sea water into sweet water aquifers. In the realm of planning and

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operation of systems, water allocation priorities were broadly  

outlined as (a) drinking water, (b) irrigation, (c) hydropower, (d)  

navigation and (e) industrial and other uses.   

374. As far as the allocation is concerned, the uses are to be  

governed by the rider that these priorities must be modified, if  

necessary, in particular region with reference to area specific  

considerations. In conclusion, the policy laid stress that in view of  

vital importance of water for human and animal life, for maintaining  

ecological balance and for economic and developmental activities of  

all kinds and considering its increasing scarcity, the planning and  

management of this resource and its optimal, economical and  

equitable use has become a matter of utmost urgency.  It  

emphasized that the success of the National Water Policy would  

depend entirely on the development and maintenance of a national  

consensus and commitments to its underlying principles and  

objectives.  Significantly, the Policy, which is a national charter for  

Planning and Development of Water Resources for its disciplined  

and judicious utilization recognizes and accepts it to be scarce and  

valuable bounty of nature to be developed, conserved and put to  

planned use on an environmentally sound basis with due regard to

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the needs of the State concerned.  The Policy, thus, sustains the  

concept of basin state as contemplated in the Helsinki Rules,  

Campione Rules and Berlin Rules.  

375. It is worthy to note that it significantly underlines that water  

starved areas ought to be serviced by transfer from one river basin  

to another based on national perspective after taking into account  

the needs of such areas/basins. Drinking water has been assigned  

the highest priority in the category of uses. Though use of ground  

water resources has not been wholly debarred, yet regulated  

exploitation thereof, not in excess of recharging possibilities, has  

been highlighted.  

376. The National Water Policy of 2002 which is a revised and  

updated form of the earlier model, reiterates the emphasis on the  

need for planning, development and management of the water  

resources from the national stand point. Pertaining to water  

allocation priorities, this Policy added to the list, in particular,  

ecology and agro industries and non-agricultural industries,  

qualifying that the priorities as enumerated could be modified or  

added if warranted by the specific considerations of the

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areas/regions. The primacy of drinking water was reiterated.  On  

the aspect of ground water development, it was stated that a  

periodical re-assessment of the ground water potential on the  

scientific basis should be made taking into consideration the quality  

of water available and the economic viability of its extraction.  Same  

caution against over exploitation of ground water was sounded.  It  

was, inter alia, mandated that adequate safe drinking water facility  

should be provided to the entire population, both in urban and in  

rural areas, and irrigation and multipurpose projects should  

invariably include in it drinking water component wherever there is  

no alternative source of drinking water. It was clarified that  

drinking water needs of human beings and animals should be the  

first charge on any available water.  Qua irrigation, the Policy stated  

that planning either in an individual project or in a basin as a  

whole should take into account the irrigability of land, cost effective  

irrigation options possible from all available sources of water and  

appropriate irrigation techniques for optimising water use  

efficiency.  The aspect that the irrigation intensity should be such  

as to extend the benefits of irrigation to a large number of farm  

families as much as possible, keeping in view the need to maximize

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production, was also underlined. It was most importantly provided  

that water sharing/distribution amongst the States should be  

guided by national perspective with due regard to the availability of  

water resources and the needs within the river basin. The Policy,  

therefore, did not bar as such the sharing or allocation of water in  

areas within the basin state.  In conclusion, the Policy recorded that  

its success would depend entirely on evolving and maintaining  

national consensus and commitment to its underlying principles  

and objectives. It also laid emphasis on the needs of the community  

that requires to be taken into account for the development and  

management water resources.  

377. The national policies of the country as above, therefore,  

evidently supplement and consolidate the prescriptions of the  

Helsinki Rules, Campione Rules and Berlin Rules in the matter of  

ascertainment of reasonable and equitable share of water in an  

inter-state river. To reiterate, the Helsinki Rules and the other  

Rules envisage a basin state on the issue of equitable  

apportionment of an inter-State river. Though the Rules predicate  

that in determining the share of one basin state, the other co-basin  

states would not be subjected to substantial injury, yet the clear

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emphasis is to fulfill the economic and social needs of the  

population of the State and in the sphere of irrigation, its farmer  

community. Indubitably, the principle of apportionment would  

apply uniformly to all river basins in a State.  The sharing of an  

inter-state river, as the professed norms of distribution suggest, has  

to be with the spirit of harmonious  disposition and equanimous  

dispensation.  The norms or the factors suggested, understandably,  

can never be exhaustive and designed only a balanced framework of  

pragmatic measures to ensure beneficial use of water resources in  

an inter-State river on need-based application thereof and  

reciprocal adjustments for common good.  In the regime of a welfare  

state wedded to the guarantees enshrined in the National Charter,  

any yardstick for distribution of any national asset like water would  

have to be essentially in furtherance thereof. The criteria identified  

in the Rules and supplemented by the national policies in letter and  

spirit, though in quite detail, can only be construed as illustrative  

and cannot be perceived as a strait-jacket formula or put in a  

compartment of mathematical exactitude to exclude any other  

consideration or exigency to effect a desirable apportionment of  

water of an inter-state river depending on the prevalent

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eventualities. Having regard to the geographic, hydrographic,  

hydrological, hydrogeological, climatic, ecological and other fluvial  

phenomena attendant on time, the spectrum of priorities and the  

factors associated therewith are bound to vary. Be it clearly stated  

that while no precise formula can be adopted, there has to be a  

sincere and pragmatic endeavour to have a rational amalgam of  

globally accepted norms and the local necessities founded on the  

doctrine of fairness and equity. The factors already enumerated,  

needless to say, may inter se demand precedence of one over the  

other depending on the ground realities, the ultimate test being to  

ensure that the allocations on the basis thereof in favour of one  

basin State ought not to be substantially detrimental to the             

co-basin States.  The order of precedence in the areas of necessity,  

as set out in the National Policy, is not incompatible with the  

acknowledged determinants for ascertaining the reasonable and  

equitable share of an inter-State river. Nevertheless, the weightage  

of one item of need would depend in a given situation on the degree  

and priority thereof thereby necessitating grant of preference of one  

over the other in departure of the sequence set out in the policy.  

This again is to underline the attribute of variability in the approach

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of application of the otherwise identified criteria, the ultimate goal  

being equitable apportionment of the resources.  This concept gains  

more significance where the resource is scarce and inadequate qua  

the demand thereof.  It is warrantable as the dispute involves the  

inhabitants of one State with the inhabitants of another State. Such  

involvement by statutory command engulfs the principle of  

obtaining situational adjustment having due regard to priority. In  

the above predominant conspectus, in our estimate, the factors as  

set out in the Helsinki Rules and endorsed as well as supplemented  

by the Campione Rules and the Berlin Rules and further  

consolidated by our national policies as above are efficient, rational,  

objective and pragmatic guidelines to conduct any exercise for  

determining the reasonable and equitable share of basin States in  

the water of an inter-state river like Cauvery as in the present case.    

378. With these guidelines at disposal, the endeavour has to be  

essentially to ensure an appropriate balance of the genuine  

competing demands and interests of the basin States. The  

balancing has to be done in a pragmatic and feasible manner so  

that it will be ultimately functional and meet the aspirations of the  

riparian States. In such a working process, there has to be

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adjustment of the available resources. That apart, the process  

indeed has to be informed with egalitarian vision for achieving  

utilitarian ends keeping in view the inclusive spirit and the  

pluralistic ethos. Thus viewed and understood, periodical reviews to  

update the allocations merited by changes in the aforementioned  

natural and environmental phenomena bearing on the resources for  

supply and resultant reorientation of the inter se needs of the basin  

States, would have to be unfailingly undertaken on time.  

379. It needs to be stated that the gravamen of the rival assertions  

span from wrong application of the principles of equitable  

apportionment to the facts of the case, defective assessment of the  

materials on record bearing on the requirements registered by the  

competing States, faulty approach in the matter of evaluation of the  

parameters bearing in particular on the crop water requirement,  

ground water availability and use and unmerited rejection of  

various projects as testimony of rightful claims to resultant  

inaccurate allocation of the water of the inter-state river involved.  

As detailed hereinbefore, the impugned decision of the Tribunal  

would demonstrate that it had undertaken a detailed exercise on  

the basis of the pleadings of the parties, the evidence, oral and

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documentary, including several contemporary official records and  

statistics supplemented by the testimony of various acclaimed  

experts in the field of water research and use over the years. Having  

regard to the jurisdiction being exercised, we would, in this factual  

backdrop, test the competing contentions on the basis of broad  

features of the controversy and the established legal postulates  

applicable thereto and interfere in the event of any discernible  

vitiating infirmity, incurably afflicting the adjudicative pursuit of the  

Tribunal thereby rendering its appraisal of the materials on record  

on any issue as well as the final determination to be patently  

unsustainable.   

X.2 Determination of „irrigated areas” in Tamil Nadu and  

Karnataka:  

380. As we notice, the Tribunal, after adopting the principle of  

equitable apportionment, in the process of computing the  

reasonable and equitable shares of the basin States as the first  

initiative, determined the irrigated areas of the States and in doing  

so, noted from the report of the Cauvery Fact Finding Committee  

submitted in the year 1972 that the utilization of waters of Tamil  

Nadu including Karaikal region of the Union Territory of

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Puducherry, Mysore and Kerala had been 566.60 TMC, 176.82 TMC  

and 5 TMC respectively. As the background of the Agreements of  

1892 and 1924 would reveal, the State of Karnataka had been  

raising persistent protests against the restraints put on it on the  

use of the waters of the river for which it alleged that it was not  

possible on its part to irrigate lands even as envisaged in the  

Agreement of 1924. This was clearly by way of its remonstrance  

against Tamil Nadu‘s endeavours to wrest its dominion over the  

water by exercising its prescriptive right to the natural flow thereof  

within its territories. Noticeably, the principle of equitable  

apportionment, as has evolved over the time, has not been and  

rightly not disputed by the party-States as the yardstick for the  

allocation in praesenti. In view of the fact that river Cauvery is  

deficit in its water content compared to the demands of the riparian  

States involved, restrictions and savings in the matter of use thereof  

are not only necessary but also natural  corollaries. In that view of  

the matter, it is incumbent to identify the areas under irrigation  

with the expansion thereof with time, together with the crop pattern  

and the suitability thereof, having regard to the extent of utilization  

of the deficient surface flow available. On the basis of the reports of

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the various Committees and the recorded data referred to  

hereinabove, the bearing of the 1924 Agreement in particular over  

the march of events cannot also be totally disregarded. The  

Tribunal, after taking into account all these factors, vis-a-vis Tamil  

Nadu, applied the restrictions to work out the irrigated area to  

which it would be entitled to assert its share of allocation, namely,  

no area for summer paddy; area of summer paddy raised prior to  

1924 to be replaced by semi-dry crop; annual intensity of irrigation  

to be restricted to 100%; cropping period to be restricted within the  

irrigated season, i.e., 31st June to 31st January and ambitious lift  

irrigation schemes to be discouraged. It, thus, quantified such area  

for Tamil Nadu to be 24.71 lakh acres against its claim of 29.26  

lakh acres. As far as Karnataka is concerned, the Tribunal noticed  

that in the pre 1924 Agreement era, irrigation in the then State of  

Mysore was primarily from direct diversion channels from the rivers  

together with the system of tank irrigation and that in the absence  

of any reservoir, the waters of Cauvery and its tributaries like  

Kabini, Hemawathi, Harangi and Suvaranwathi used to flow  

through the State but their ultimate destination was the Delta State  

of the then State of Madras as a result whereof, even as admitted by

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the State of Tamil Nadu, Karnataka could develop only 3.14 lakh  

acres of land by 1924. This inability of the State of Karnataka to  

develop its land for irrigation in the background of its persistent  

cavil of being deprived of its legitimate share and use of the water of  

Cauvery cannot be ignored. It is a recorded fact that though under  

the 1924 Agreement, Karnataka in terms of the relevant provisions  

thereof ought to have developed 7.45 lakh acres by 1974, it could  

achieve only 2.15 lakh acres. However, the Tribunal in all allowed  

18.85 lakh acres of area to Karnataka being under irrigation prior  

to 1974 against its claim of 20.98 lakh acres. In case of Karnataka  

as well, the Tribunal excluded the development of second crop in  

view of the scarcity of water in the basin with due regard to the  

rainfall pattern and even suggested restrictions on the crop variety  

and the duration thereof. On an overall consideration of the  

relevant materials to which our attention has been drawn, we are of  

the view that having regard to the imperative of economy of  

consumption of water, the approach of the Tribunal cannot be  

found fault with having regard to the exiting situation  

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426    

X.3 Assessment of water for “irrigation needs” in Tamil Nadu  and Karnataka:  

381. We may analyse the present demand qua the assessment of  

crop water requirement of the basin states, the relevant information  

of which had been furnished by them in common format  

supplemented by the oral testimony of experts and documentary  

evidence. They registered their demand for allocation as  

hereinbelow:  

Tamil Nadu – 566 TMC  

Karnataka – 466 TMC  

Kerala – 100 TMC  

Union Territory of Pondicherry – 9 TMC  

 The Tribunal, to reiterate, to ensure equitable share to each  

State, applied the following criteria:  

(i) Double crop only over areas before the Agreement of      the year 1924 and as permitted under the said  Agreement and not beyond.  

 (ii) Summer crop restricted in some areas where it was   

grown prior to 1924 Agreement which ought to be  replaced by any light irrigated crop within the  irrigation season.  

 (iii) Delta to be reduced in view of new variety of paddy   

and developed techniques which require lesser Delta  of water.  

 (iv) No transbasin diversion.

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427    

(v)  No lift schemes.   

 

382. As the records reveal, after the evidence of the expert  

witnesses was recorded, as required by the Tribunal, the States  

filed their affidavits furnishing details of water requirements as well  

as the crops grown by them together with an indication of a  

minimum crop water requirement. The affidavit filed on behalf of  

Tamil Nadu was marked as Ext. TN1665 and that of Karnataka as  

Ext. KAR518. Hence, we shall analyse the ultimate determination  

by the Tribunal and scrutinize its ultimate justification. As has  

been noted earlier, there has been a considerable dispute over  

Ext.1665 and the area of dispute relates to the violation of the  

principles of natural justice, non-providing of opportunity of cross-

examination, admissibility of the affidavit in evidence and, above  

all, the transgression of the sense of propriety by the State of Tamil  

Nadu.  We have already stated that what had already been available  

on record can be considered from the factual assertions of the  

affidavit. Be that as it may, there has to be an adjudication by this  

Court and not allow the main protagonist States to keep the fight in  

continuance. The Tribunal, as is demonstrable,  on the basis of the

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428    

overall materials before it, took note, amongst others, of the crop  

pattern, duration of the crops, consumption of water thereby, soil  

conditions conducive thereto, rainfall pattern, Delta and system  

efficiency along with the drought conditions of Karnataka as  

projected by it, in conjunction with the testimony of the expert  

witnesses of both the States of Tamil Nadu and Karnataka, and in  

the interest of economical use of the water of the deficit basin,  

allocated 250.62 TMC to Karnataka for its irrigated area of 18.85  

lakh acres and 390.85 TMC to Tamil Nadu for its irrigated area of  

24.71 lakh acres. Significantly, it is worthwhile to notice, in this  

context, the recommendations of the Cauvery Fact Finding  

Committee required restriction on double crop paddy area;  

introduction of short duration variety in place of ―Samba‖ crop and  

preference to crops needing less water. Further, the Tribunal has  

considered the crop water requirement, namely, crop duration, ET  

crop, puddling requirements, percolation losses, effective rainfall  

and system efficiency. Keeping in view the accepted principles, we  

find that neither the analysis undertaken by the Tribunal nor the  

findings relatable thereto can be regarded as implausible by any  

standard. Certain parameters have been exhaustively examined by

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the Tribunal on the basis of the materials brought on record with  

supporting reasons and, therefore, the conclusion on this score  

cannot be termed as untenable warranting interference in the  

exercise of this Court's jurisdiction under Article 136 of the  

Constitution of India. We may pause here to clarify. In our first  

verdict that pertained to the delineation of the maintainability of  

appeals by special leave while holding the appeals to be  

maintainable, we had kept it open for advertence at a later stage the  

issue whether there should be broad approach or a narrow one.  

After hearing all the sides at length, at this juncture, we are  

inclined to say that while adjudicating a matter of such a nature we  

cannot be totally guided exclusively either by ―broad‖ or  

extraordinary discretionary or ―narrow‖ or restrictive approach but  

think it appropriate to have an intermediary approach as the  

controversy covers a span of more than 100 years involving change  

in boundaries, population growth and subsequent events. We may  

hasten to add that though the parameters of applicability of Article  

136 can be broad to appreciate the materials and scrutinize the  

manner of appreciation by the Court/Tribunal depending upon the  

lis raised.  In the present appeals preferred by special leave, we

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430    

think it condign to adopt an approach which is neither broad nor  

narrow but an ―intermediary one‖, especially having regard to the  

nature of the dispute that involves the inhabitants of three States  

and a Union Territory.  

383. In the realm of determination of irrigated area, the assessment  

by the Tribunal, as we find, encapsules the factual and  

characteristically complex situation.  Lands have already been  

irrigated.  It is an issue of sustenance at the ground reality level.  To  

reduce the allocation of water on this core would be inequitable.   

Therefore, in the obtaining fact situation, in our comprehension, no  

interference is warranted. That apart, having regard to the degree of  

wiredrawn complexities involved, requiring in-depth expertise to  

dislodge the otherwise well-reasoned findings of the Tribunal  

founded on an exhaustive appreciation of the materials on record,  

we are not inclined to upset the determination made by it in this  

regard. On an overall scrutiny of the materials to which our  

attention had been drawn, we are in general agreement with the  

approach and assessment made by the Tribunal and the deductions  

made by it on the basis thereof. Sans rhetoric and emotionally  

appealing submissions, we find that the rival contentions are

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431    

equally balanced and to reiterate, on an overall consideration of the  

materials on record, we do not feel persuaded to differ with the  

Tribunal's adjudication.    

 

X.4      Water allocation for the State of Kerala:  

384. In respect of the claim of Kerala, it is a matter of record that  

rainfall is evenly distributed over the months of May to November so  

much so that occasional support by artificial irrigation is required  

in the instances of shortfall in rains and that too during small  

periods. Against its demand of 99.8 TMC under different heads, it  

had demanded 35 TMC for transbasin diversion to generate hydro-

electrical power. The Tribunal rejected the State's request for  

transbasin diversion for hydro-power projects which, in terms of the  

National Water Policy of 2002, was even otherwise lower in  

preference to drinking water and irrigation. The Tribunal in  

adjudging the State's share did notice that it had been unsuccessful  

in furthering its projects so much so that pending the completion  

and utilization thereof, the unutilized water allocated to it subject to  

the mechanism set up by the Cauvery Management

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432    

Board/Regulatory Authority, would be received by Tamil Nadu. The  

Tribunal examined the information furnished by it in the common  

format and adjudged 29.76 TMC which was rounded upto 30 TMC  

as its share after due regard to its demand, amongst others,  

pertaining to different projects in Kabani, Bhavani, and Pambar  

basins having regard to their individual features and corresponding  

crop water requirement. This allocation included the share for  

domestic and industrial water purposes as well with the population  

projection for 2011. The findings of the Tribunal are not belied by  

the materials in support thereof and, therefore, we are inclined to  

accept the same.    

X.5 Water allocation for the Union Territory of Puducherry:  

 

385. With regard to the claim of Union Territory of Puducherry for  

Karaikal region, it is a matter of record that because of its close  

proximity to the sea, the ground water by its nature is unsuitable  

for drinking and irrigation purposes and, thus, the Tribunal having  

regard to its irrigated area of 43000 acres allowed its second crop in  

departure from the yardstick applied for Karnataka and Tamil Nadu  

and granted 6.35 TMC by way of crop water requirement. It also

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433    

relieved the Union Territory of the application of 20% consumptive  

utility formula while assessing its domestic and industrial water  

requirements. In the absence of any convincing reason to determine  

otherwise, the adjudication of the Tribunal on this count does not  

deserve any interference.  

X.6 Recognition of ground water as an additional source in  Tamil Nadu:  

 

386. While exploring the possibility of ground water as an  

additional source to be conjunctively used along with the surface  

flow of river Cauvery, the factual matrix reveals, based on empirical  

data, that the contributions thereto are from surface water through  

infiltration into the ground by way of natural recharge, stream flow,  

lakes and reservoirs. The recharge of ground water is principally  

from rainfall as well as artificial modes, namely, application of water  

to irrigate crops, flooding of areas caused by overflowing of streams  

to their sites and seepage from unlined canals, tanks and other  

sources.  Ground water, as the study by the Central Ground Water  

Board, Ministry of Water Resources, Government of India attests,  

caters to more than 45% of irrigation in the country.  As against the  

stand of Tamil Nadu that the ground water within its Delta areas is

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434    

mainly by way of recharge from the supplies of Mettur Dam which  

really is a component of the surface flow of river Cauvery and  

further that the same is utilized by the farmers for raising of early  

nurseries ahead of releases from Mettur and for irrigating belated  

crops after stoppage of Mettur releases, exhaustive studies  

undertaken, amongst others, by the Central Ground Water Board,  

Ministry of Water Resources, Government of India, Irrigation  

Commission, 1972 and United Nations Development Programme  

evidenced availability of replenishable ground water in Tamil Nadu.  

The United Nations Development Programme in its report, amongst  

others, mentioned that yearly quantity of ground water that can be  

extracted by using centrifugal pumps in the Cauvery sub-basin,  

Vennar sub-basin and in the new Delta was 33.7 TMC, 5.4 TMC  

and 32.5 TMC respectively and in addition 56.5 TMC of ground  

water per year can also be made available in the Cauvery sub-basin  

by lowering seasonally ground water level to 10 meters depth below  

the regional ground water level. Other studies made by the team of  

the Central Ground Water Board indicated ground water potential  

in the Delta area of Tamil Nadu to the extent of 64 TMC.  The report  

of Mr. W. Berber, Consultant, World Bank on Ground Water

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435    

Resources of Cauvery Delta estimated the available ground water in  

Cauvery Delta at 51.56 TMC. Apart from the above, Tamil Nadu, in  

its pleadings, admitted that the total ground water extraction  

during the year 1989 was approximately 28.4 TMC in the Cauvery  

sub-basin, 7.3 TMC in the Vennar sub-basin and 11.3 TMC in the  

Grand Anicut Canal area (new Delta area) totaling 47 TMC. Tamil  

Nadu, in its pleadings, also mentioned that in the old Delta, there  

was a scope of conjunctive use of ground water to the extent of 30  

TMC. On the basis of these recorded and empirical inputs, the  

Tribunal returned a finding that in a normal year when there would  

be regular releases of water from Mettur, the bulk of contribution to  

ground water in the Cauvery sub-basin would be from such  

releases, but in any case, the contribution from surface irrigation  

and rainfall could by no means be overlooked. On weighing the pros  

and cons and having regard to the severe limitations in the  

mechanism for assessment of ground water resource, the Tribunal  

made an extremely safe estimate of 20 TMC of ground water which,  

in its view, could be used by Tamil Nadu conjunctively with surface  

water. In categorical terms, the Tribunal clarified that this quantum  

was arrived at after excluding the component of ground water

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436    

recharge from river water bilateral infiltration. In other words, the  

Tribunal estimated 20 TMC of ground water available in the State of  

Tamil Nadu which was independent of any contribution from the  

surface flow of the river Cauvery and, thus, could be construed to  

be a stock available with it unconnected with the yield of 740 TMC  

otherwise quantified for allocation. It is in this context that the  

assertion made on behalf of Karnataka that ground water being a  

renewable resource, if not extracted regularly, would reduce the  

absorption capacity of the underlying aquifer resulting in rain  

water/surface water turning into wastage as run-off and that the  

admission of Tamil Nadu in its pleadings of availability of 30/47  

TMC as ground water warranted reduction of at least 20 TMC, as  

estimated by the Tribunal, from the final allocated share of Tamil  

Nadu with proportionate reduction in the quantum of water to be  

provided by Karnataka at the inter-state border, assumes  

significance. In our view, having regard to the overwhelming  

empirical data following multiple research studies by different  

authorities authenticating beyond doubt availability of  

replenishable ground water in the Delta areas of Tamil Nadu, 20  

TMC of ground water quantified by the Tribunal is an eminently

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437    

safe quantity to be accounted for in finally allocating/apportioning  

the share of Cauvery water. While expressing this view, we are not  

unmindful of the stand of Tamil Nadu and the aspect that over-

extraction of ground water in the absence of adequate  

replenishment and further in the areas proximate to the coastal  

zone is generally avoidable. However, in the attendant facts and  

circumstances, in view of the studied scrutiny of all pertinent facets  

of the issue by balancing all factors, we are of the unhesitant  

opinion that at least 10 TMC of ground water available in the Delta  

areas of Tamil Nadu can be accounted for in finally determining the  

apportionment of the share of the otherwise deficit Cauvery basin  

without touching the yield of 740 TMC.    

387. To recall, the national policies discussed above, do not, as  

such, debar the conjunctive use of ground water, the only caveat  

being periodical assessment on a scientific basis thereof and to  

guard against exploitation of the said resource so as not to exceed  

the recharging possibilities.  The series of research studies made by  

different authorities and the range of availability of ground water as  

indicated by the experimental data, in our view, not only  

demonstrate availability of ground water in the Deltas in the State

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438    

of Tamil Nadu but also that  adjustment of  10 TMC thereof, as  

proposed, would be safely permissible. Noticeably, the kind of  

experiment and research that had been made in the realm of  

ground water availability in the Deltas of Tamil Nadu has not been  

undertaken in Karnataka and there is no reliable empirical data  

with regard thereto vis-a-vis that State.    

X.7 Water allocation for Domestic and Industrial purposes in  

Tamil Nadu:  

388. With regard to the computation and allotment of water for  

domestic and industrial purposes in Tamil Nadu and Karnataka, we  

are in agreement with the formulae noted and applied by the  

Tribunal in working out the per capita daily requirements of the  

urban and rural population. There is also no reason to differ from  

the postulation with regard to the percentage of actual utilization  

qua various heads of uses, namely, irrigation, power, domestic and  

municipal water supply, industrial use, etc., as referred to in the  

Report of the Cauvery Fact Finding Committee which, for our  

immediate purposes, indicate that whereas 20% of the quantity of  

water supplied would be actually consumed in domestic use, only  

2.5% would be effectively utilized for industrial use within the basin

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439    

and the rest would return to the source, i.e., river or its tributaries  

or the reservoir, storage and canal, as the case may be.  

 

X.8 Water allocation for Domestic and Industrial purposes of  State of Karnataka:  

 

389. As regards the grievance of the State of Karnataka that while  

quantifying the allocation of water for domestic purposes, the  

Tribunal had accounted for only 1/3rd of the city of Bengaluru to be  

falling within the river basin and had, as a result, drastically cut  

down its overall share under this head.  It is significant to notice  

that in its statement of case, Karnataka had registered its claim for  

water for domestic and industrial uses as hereunder:-  

Bangalore water supply – 30 TMC  

Urban water supply (other than Bangalore) – 10 TMC  

Rural water supply – 6 TMC  

Industrial uses – 4 TMC    

This along with its claim for irrigation - 408 TMC and for  

power projects (reservoir losses 6 TMC and Thermal Power Project -  

1 TMC) – totals to 465 TMC. Karnataka, therefore, registered a  

claim of 30 TMC only for the city of Bengaluru. The Tribunal, at the

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440    

first instance, presumed that 50% of drinking water requirement  

would be met from the ground water sources as it is generally seen  

that wells and tube-wells in urban and rural areas cater to  

substantial requirement of drinking water. While noting that it had  

called for information in the common format whereby the States  

had been required to project their population for the year 2000 and  

2025 for working out drinking water requirement, the Tribunal,  

however, decided to assess the drinking water requirement as in the  

year 2011. On the basis of the information available, it held that  

only 1/3rd of the Bengaluru city lay within the Cauvery basin as  

was urged in the course of the arguments. It, therefore, limited its  

consideration of drinking water requirement of Bengaluru to that  

area only which was located within the Cauvery basin. It noticed  

that Karnataka had stated that the existing and ongoing drinking  

water schemes for the city were for 14.52 TMC in all as in June  

1990 and also that it had claimed 30 TMC for Bengaluru city in its  

projection for 2025. The Tribunal, as is perceptible, was disposed to  

work out the water requirement for urban and rural population on  

the basis of population projection of the basin for the year 2011 by  

adopting the percentage decennial growth for the year 1981-1991

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441    

census, district-wise and the area of each district falling within the  

Cauvery basin as furnished by Karnataka. The population  

projection of Bengaluru city on the Census Report of 2011, as  

furnished by Tamil Nadu, was taken note of as well. The Tribunal  

next quantified the water requirement of urban population to be  

8.70 TMC and for rural population at 8.52 TMC. The Tribunal, as a  

consequence, proceeded to quantify the total drinking water  

requirement for urban and rural population to be 17.22 TMC (8.70  

TMC + 8.52 TMC). It next assumed that 50% of the drinking water  

requirement would be met from ground water and the remaining  

50% from the surface water. Thus, segregating 8.75 TMC to be  

catered to by the surface water, it worked out the consumptive use,  

i.e., 20% of the total for the human population including live stock  

to be 1.75 TMC (20% of 8.75 TMC).  

390. Apart from the fact that there is no basis whatsoever for the  

Tribunal for having quantified the water requirement for urban  

population to be 8.70 TMC as well as for rural population to be 8.52  

TMC, its assumption that 50% thereof would be met from ground  

water only in view of its perception that wells and tube-wells in  

urban and rural areas cater to the substantial requirement of

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442    

drinking water, in our view, is unacceptable and cannot be  

sustained. That apart, in the context of Bengaluru city, especially in  

view of the growth and rise of population in space and time, the  

Tribunal‘s approach of confining the entitlement of its population in  

general to only 1/3rd of their requirement only in view of the  

location of 1/3rd of its physical entity within the Cauvery basin  

demands scrutiny. True it is, the concept of a basin and the  

beneficial uses of the water thereof ought to be traced generally to  

the sites and population thereof located in the basin, nevertheless,  

the principles of apportionment and the conception of reasonable  

and equitable share perceived for such uses comprehend a basin  

State addressing the social and economic needs of its community as  

a whole. Territorial or geographical demarcation for extension of  

beneficial uses of an inter-state river basin cannot always be strictly  

construed.  We are inclined to think so as the perception of a basin  

State inheres in it a degree of flexibility in approach in a unique fact  

situation to justify a warrantable flexibility and departure from such  

rigoristic approach. We are disposed to think so, for the city of  

Bengaluru, as an evident phenomenon, has burgeoned over the  

years and has grown today into a progressively sophisticated,

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443    

sprawling, vibrant and a much aspired seat of intellectual  

excellence particularly in information technology and commercial  

flourish. It has transformed into a nerve centre of contemporaneous  

significance and its population is daily on the rise, thus, registering  

an ever enhancing demand for all civic amenities. Having regard to  

its exclusive attributes, it is incomparable in many ways not only to  

other urban areas in the State, but also beyond. The requirements  

of its dependent population as a whole for drinking and other  

domestic purposes, therefore, cannot justifiably, in the prevailing  

circumstances, be truncated to their prejudice only for  

consideration of its physical location in the context of the river  

basin. We think so since the city of Bengaluru cannot be segregated  

having an extricable composition and integrated whole for the  

purposes of the requirements of its inhabitants, more particularly  

when the same relates to allocation of water for domestic purposes  

to meet their daily errands. It will be inconceivable to have an  

artificial boundary and deny the population the primary need of  

drinking water. We hold so in the special features of the case  

keeping in view the global status the city has attained and further

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444    

appreciating the doctrine of equitable proportionality on the  

bedrock of pressing human needs.    

391. At this juncture, we need to recount that as per the national  

water policies, not only drinking water has been placed at the top of  

the other requirements in the order of priority, but it has also been   

predicated that adequate drinking water facilitates should be  

provided to the entire population, both in urban and rural areas  

and that drinking water should be made a primary consideration. It  

was declared as well that drinking water needs of human beings  

and animals should be the first charge on any available water.   

Article 14 of the Berlin Rules also mandates that in determining an  

equitable and reasonable use, the States shall first allocate water to  

satisfy vital human needs.   

392. In view of the above, we are constrained to observe that the  

approach of the Tribunal cannot be approved in the facts and  

circumstances indicated hereinabove. We are, thus, of the  

considered opinion that the allocation of water for drinking and  

domestic purposes for the entire city of Bengaluru has to be  

accounted for. Noticeably, Karnataka had claimed 14.52 TMC, i.e.,

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445    

6.52 TMC for existing water schemes for Bengaluru and 8.00 TMC  

for the ongoing drinking water schemes for the city as in June,  

1990. It had demanded 30 TMC as drinking water requirement for  

the city with the projection of 2025. Having regard to the percentage  

of decennial growth, as has been adopted by the Tribunal, in 2011,  

the demand of Karnataka for drinking water requirement for  

Bengaluru city would be in the vicinity of 24 TMC. Even excluding  

the computation for urban population of the State to be 8.70 TMC  

as arrived at by the Tribunal and that too without any basis and  

accepting the water requirement of rural population to be 8.52 TMC  

though also without any basis, the total figure representing  

drinking and domestic water requirement of the urban and rural  

population would be 32.5 TMC rounded upto 33 TMC in  

comparison to 46 TMC as claimed by Karnataka in its statement.  

Having rejected the assumption that 50% of the drinking water  

requirement would be met from ground water, this 33 TMC would,  

in our estimate, be a safe and acceptable figure qua drinking and  

domestic water requirement of the State of Karnataka for its urban  

and rural population. By applying the consumptive percentage of  

20%, the volume of water to be allocated to Karnataka on this count

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446    

would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an  

increase by 4.75 TMC.   

393. Qua the view against transbasin diversion, suffice it to state  

that not only in the context of Bengaluru city, for the reasons cited  

hereinabove, a digression from the confines of the concept of in-

river basin would be justified, since the National Water Policy of  

1987, in categorical terms, enjoined that water should be made  

available to water short areas by transfer from other areas including  

transfers from one river basin to another.  This very conspicuously  

emphasizes on an inclusive comprehension and in a deserving case  

like Bengaluru city, it would not be incompatible with the letter and  

spirit of the factors that ought to inform the determination of  

reasonable and equitable share of water in an interstate river as  

well as of the national policies formulated for planning and  

development of the precious natural resource involved.      

X.9  Allocation of water towards environmental protection:  

 

394. On the aspect of allocation qua environmental protection, the  

Tribunal, in order to secure the purity of environmental and  

ecological regime in view of the injudicious use of available

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447    

resources by human beings compounded by population explosion  

and distorted lifestyles and having regard to the spectre of river  

water pollution on account of industrial development and  

deforestation leading to siltation of reservoirs, etc., assigned 10  

TMC to be reserved from the common pool to meet the  

environmental aspects.  

395. We appreciate the endeavour and the initiative of the Tribunal  

having regard to the sustenance of purity of environment to which  

every individual is entitled and also simultaneously obliged to  

contribute to cultivate the feeling of environmental morality.  That  

is the constant need of the present.  In view of such an obtaining  

situation, we are not inclined to interfere in any manner in the  

allocation of the quantum of 10 TMC towards environmental  

protection.  It stands affirmed.    

X.10    Revised water allocation amongst competing States:  

396. The river Cauvery originates in Karnataka and eventually after  

its full flow through the other riparian States of the basin  

assimilates in the Bay of Bengal. With the evolution of the principle  

of equitable apportionment which is really to ensure equal justice to

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448    

the basin States, the concept of prescriptive right or right to the  

natural flow of any inter-state river has ceased to exist.  Having  

regard to the historical facts which demonstrate the constraints  

suffered by Karnataka resulting in its limited access and use of the  

surface flow of Cauvery in spite of being the upper riparian state,  

compared to Tamil Nadu, then Madras presidency, as well as  

severally drought conditions in its 28 districts/taluks, we are  

inclined to award an additional quantity of water to it in the  

measure of 14.75 TMC in all, i.e.,  10 TMC (on account of  

availability of ground water in Tamil Nadu) + 4.75 TMC (for drinking  

and domestic purposes including such need for the whole city of  

Bengaluru). On these considerations, we consider Karnataka to be  

more deserving amongst the competing States to be entitled thereto.  

Out of this, 14.75 TMC would be deducted from the quantum  

allocated by the Tribunal in favour of Tamil Nadu.  In other words,  

the final allocation of the shares in view of this determination would  

be as hereunder:-  

Karnataka   : 284.75 (270 + 14.75) TMC  

Tamil Nadu   : 404.25 (419 – 14.75) TMC  

Kerala    : 30 TMC

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449    

UT of Pondicherry  : 7 TMC  

Environmental Protection :  10 TMC  

Inevitable escapagaes into sea : 4 TMC  

   Total     : 740 TMC  

397. As a consequence of the aforesaid allocation, the State of  

Karnataka would now be required to make available at the  

interstate border with Tamil Nadu, i.e.,  at Billigundulu, 177.25  

TMC of water for the basin.   Apart from the modifications  

effected hereinabove, no interference with the determination and  

findings recorded by the Tribunal, in view of the scrutiny of the  

available materials on record, is called for.  

398. At this stage, we may reproduce how the Tribunal has dealt  

with monthly deliveries by the State of Karnataka which is as  

follows:-  

―Since the major shareholders in the Cauvery waters are  the States of Karnataka and Tamil Nadu, we order the  tentative monthly deliveries during a normal year to be  made available by the State of Karnataka at the inter- State contact point presently identified as Billigundulu  gauge and discharge station located on the common  

border as under:  

Month TMC Month TMC  

June 10 December 8

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450    

July 34 January 3  

August  50 February  2.5  

September  40 March 2.5  

October 22 April 2.5  

November 15 May 2.5  

  192 TMC  

 

The above quantum of 192 TMC of water comprises of  182 TMC from the allocated share of Tamil Nadu and 10  

TMC of water allocated for environmental purposes.‖  

 

399. The Tribunal directed appointment of a Regulatory Authority  

to properly monitor the working of monthly schedule with the help  

of the concerned States and Central Water Commission and further  

directed that the upper riparian State shall not take any action so  

as to affect the scheduled deliveries of water to the lower riparian  

States. The other directions which had been issued by the Tribunal,  

we think it appropriate to reproduce, are as under:-  

“Clause-XIV  

Use of water shall be measured by the extent of its  depletion of the waters of the river Cauvery including its  tributaries in any manner whatsoever; the depletion  would also include the evaporation losses from the  reservoirs.  The storage in any reservoir across any  stream of the Cauvery river system except the annual  evaporation losses shall form part of the available water.   The water diverted from any reservoir by a State for its

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own use during any water year shall be reckoned as use  

by that State in that water year.     

 

Clause-XV  

In any riparian State or U.T. of Pondicherry is not able to  make use of any portion of its allocated share during any  month in a particular water year and requests for its  storage in the designated reservoirs, it shall be at liberty  to make use of its unutilized share in any other  subsequent month during the same water year provided  this arrangement is approved by the implementing  

Authority.  

Clause-XVI  

Inability of any State to make use of some portion of the  water allocated to it during any water year shall not  constitute forfeiture or abandonment of its share of  water in any subsequent water year nor shall it increase  the share of other State in the subsequent year if such  State has used that water.  

 x  x  x  x  x  x  

Clause XVIII  

Nothing in the order of this Tribunal shall impair the  right or power or authority of any State to regulate  within its boundaries the use of water, or to enjoy the  benefit of waters within that State in a manner not  inconsistent with the order of this Tribunal.‖  

400. In view of the reduction in the quantum of water, now required  

to be released by Karnataka at the inter-State border with Tamil  

Nadu, i.e., at Billigundulu, there would be, logically, a proportionate

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(c) the holding of a minimum number of meetings of the  authority every year, the quorum for such meetings and  

the procedure thereat;  

(d) the appointment of any standing, ad hoc or other  

committees by the authority;  

(e) the employment of a Secretary and other staff by the  authority, the pay and allowances and other conditions of  

service of such staff;  

(f) the constitution of a fund by the authority, the  amounts that may be credited to such fund and the  expenses to which the fund may be applied;  

(g) the form and the manner in which accounts shall be  

kept by the authority;  

(h) the submission of an annual report by the authority  

of its activities;  

(i) the decisions of the authority which shall be subject to  

review;  

(j) the constitution of a committee for making such review  

and the procedure to be followed by such committee; and  

(k) any other matter which may be necessary or proper  for the effective implementation of the decision or  

directions of the Tribunal.  

(3) In making provision in any scheme framed under sub-  section (1) for the establishment of an authority for giving  effect to the decision of a Tribunal, the Central  Government may, having regard to the nature of the  jurisdiction, powers and functions required to be vested  in such authority in accordance with such decision and  all other relevant circumstances, declare in the said  scheme that such authority shall, under the name  specified in the said scheme, have capacity to acquire,  hold and dispose of property, enter into contracts, sue  and be sued and do all such acts as may be necessary for

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the proper exercise and discharge of its jurisdiction,  

powers and functions.  

(4) A scheme may empower the authority to make, with  the previous approval of the Central Government,  regulations for giving effect to the purposes of the  

scheme.  

(5) The Central Government may, by notification in the  Official Gazette, add to, amend, or vary, any scheme  

framed under sub- section (1).  

(6) Every scheme framed under this section shall have  effect notwithstanding anything contained in any law for  the time being in force (other than this Act) or any  instrument having effect by Virtue of any law other than  

this Act.  

(7) Every scheme and every regulation made under a  scheme shall be laid, as soon as may be after it is made,  before each House of Parliament, while it is in session,  for a total period of thirty days which may be comprised  in one session or in two or more successive sessions, and  if, before the expiry of the session immediately following  the session or the successive sessions aforesaid, both  Houses agree in making any modification in the scheme  or the regulation or both Houses agree that the scheme  or the regulation should not be made, the scheme or the  regulation shall thereafter have effect only in such  modified form or be of no effect, as the case may be; so,  however, that any such modification or annulment shall  be without prejudice to the validity of anything previously  done under that scheme or regulation."  

  

402. We have already noted the submissions of the learned Solicitor  

General. His submission, in essentiality, is that the Court should  

not issue any direction to the Central Government and allow the

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discretion to be exercised by it as the provision uses the word may.  

The said argument, as we perceive on a first blush, may look quite  

attractive or for a while impressive but really cannot stand the  

substance test.  In State of Karnataka (supra) while interpreting  

the said provision in the context of maintainability, we had held:-   

―….The learned Senior Counsel for the respondent has  drawn a distinction between the conferment and the  exclusion of the power of the Supreme Court of India by  the original Constitution and any exclusion by the  constitutional amendment. Be that as it may, the said  aspect need not be adverted to, as we are only required to  interpret Section 6(2) as it exists today on the statute  book. The said provision has been inserted to provide  teeth to the decision of the Tribunal after its publication  in the Official Gazette by the Central Government and  this has been done keeping in view the Sarkaria  Commission‘s Report on Centre-State Relations (1980).  The relevant extract of the Sarkaria Commission‘s Report  reads as follows:  

 

―17.4.19. The Act was amended in 1980 and  Section 6-A was inserted. This section provides  for framing a scheme for giving effect to a  Tribunal‘s award. The scheme, inter alia provides  for the establishment of the authority, its term of  office and other conditions of service, etc. But the  mere creation of such an agency will not be able  to ensure implementation of a Tribunal‘s award.  Any agency set up under Section 6-A cannot  really function without the cooperation of the  States concerned. Further, to make a Tribunal‘s  award binding and effectively enforceable, it  should have the same force and sanction behind

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it as an order or decree of the Supreme Court. We  recommend that the Act should be suitably  amended for this purpose.  

* * *  

17.6.05. The Inter-State Water Disputes Act,  1956 should be amended so that a Tribunal‘s  award has the same force and sanction behind it  as an order or decree of the Supreme Court to  make a Tribunal‘s award really binding.‖  

 

74. The Report of the Commission as the language would  suggest, was to make the final decision of the Tribunal  binding on both the States and once it is treated as a  decree of this Court, then it has the binding effect. It was  suggested to make the award effectively enforceable. The  language employed in Section 6(2) suggests that the  decision of the Tribunal shall have the same force as the  order or decree of this Court. There is a distinction  between having the same force as an order or decree of  this Court and passing of a decree by this Court after due  adjudication. Parliament has intentionally used the  words from which it can be construed that a legal fiction  is meant to serve the purpose for which the fiction has  been created and not intended to travel beyond it. The  purpose is to have the binding effect of the Tribunal‘s  award and the effectiveness of enforceability. Thus, it has  to be narrowly construed regard being had to the purpose  it is meant to serve.‖  

 

403. We have referred to the aforesaid passages as the award of the  

Tribunal has to be treated as decree of the Supreme Court. It is so  

stated in Section 6(2) to give teeth to the award passed by the  

Tribunal so that none of the States can raise objection to the same  

and be guided by the directions of the Tribunal. The purpose of

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framing the scheme is exclusively for implementation of the award.   

The authorities cited by Mr. Ranjit Kumar, we are afraid, are of no  

assistance in the present context. It needs no special emphasis to  

state that the purpose of Section 6A is to act in the manner in  

which the award determines the allocation and decides the dispute  

with regard to allocation or sharing of water. Keeping that in view,  

we direct that a scheme shall be framed by the Central Government  

within a span of six weeks from today so that the authorities under  

the scheme can see to it that the present decision which has  

modified the award passed by the Tribunal is smoothly made  

functional and the rights of the States as determined by us are  

appositely carried out.  When we say so, we also categorically  

convey that the need based monthly release has to be respected. It  

is hereby made clear that no extension shall be granted for framing  

of the scheme on any ground.   

Z.    The conclusions in seriatim  

404.  In view of our aforesaid analysis we record our conclusions in  

seriatim:-

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(i) After coming into force of the 1947 Act, the doctrine of  

paramountcy has no room for application as the Government  

of India became the full sovereign authority.  The two  

agreements of 1892 and 1924 had neither any political  

arrangement nor touched any facet of sovereignty of India.  Per  

contra, the agreements cover the areas of larger public interest  

which do not have any political element and in this backdrop,  

the agreements are neither inoperative nor completely extinct.  

(ii) The issues in this case have no connection, whatsoever, with  

the concepts of sovereignty and integrity of India and,  

therefore, the bar under Article 363 of the Constitution of  

India is not attracted.   

(iii)  Even if we accept the contention that the State of Karnataka  

did not have any bargaining power at the time of entering into  

the agreements, but, the State of Karnataka acquired the said  

bargaining power after the 1947 Act, and definitely after  

coming into force the Constitution of India.  Regardless of the  

same, the State of Karnataka chose not to denounce the said  

agreements.  Therefore, the said agreements cannot be said to  

be unconscionable.

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(iv) The newly formed States never belied the agreements of 1892  

and 1924 after the Reorganization Act, 1956. Ergo, both the  

agreements remained in force despite coming into effect of the  

Reorganization Act, 1956.  

(v) A scrutinized perusal of the 1924 Agreement reveals that the  

said Agreement was never intended to be of permanent  

character.  On the contrary, it contemplated a fixed term of 50  

years.  Therefore, the said agreement expired after 50 years in  

the year 1974.  

(vi) The Tribunal in its approach primarily referred to Helsinki  

Rules, 1966 which rejected the Harmon doctrine and laid  

stress on equitable utilization of international rivers.  We are  

of the opinion that the Tribunal was correct in its approach.   

For determining reasonable and equitable shares, relevant  

factors have to be considered together, in reaching a  

conclusion. Keeping in view the various intricacies involved in  

the case at hand and the duty ordained upon this Court by  

the Constitution of India, the matter deserved to be  

adjudicated on the bedrock of equal status of the states and  

doctrine of equitability. Resultantly, the submission that the

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complaint of the State of Tamil Nadu did not warrant any  

adjudication, does not commend any acceptation.  

(vii) This Court in In Re: Presidential Reference (Cauvery Water  

Disputes Tribunal) has held that waters of an inter-state river  

passing through corridors of the riparian states constitute a  

national asset and no single State can claim exclusive  

ownership of its water.  In this context, the principle of  

equitable apportionment internationally recognized by the  

Helsinki Rules, Compione Rules and Berlin Rules which have  

also been incorporated in the 1987 to 2002 National Water  

Policies, have been regarded to be the guiding factor for  

resolving disputes qua apportionment of water of an inter-

state river.  

(viii) After considering all relevant materials brought on record, we  

are of the view that having regard to imperative of economy of  

consumption of water, the final determination of irrigated area  

arrived at by the Tribunal for Tamil Nadu, cannot be declared  

incorrect or fallacious.    

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(ix) We do not find any perversity of approach in the Tribunal‘s  

findings with regard to the allocation of water for domestic and  

industrial purposes in the State of Tamil Nadu.  Hence, the  

same requires no interference.  

(x) Drinking water requirement of the overall population of all the  

States has to be placed on a higher pedestal as we treat it as a  

hierarchically fundamental principle of equitable distribution  

(xi) The rejection of the stand of Kerala seeking trans-basin  

diversion for hydro-power projects by the Tribunal is justified.   

The Tribunal has allocated a total of 30 TMC of water towards  

the overall needs of the State of Kerala and we concur with the  

said conclusion of the Tribunal.  

(xii) We concur with the Tribunal‘s findings that the Union  

Territory of Puducherry is entitled for a ―second crop‖, having  

regard to its unique geographical position and its irrigated  

area being approximately 43,000 acres.    

(xiii) The allocation of water in favour of Union Territory of  

Puducherry does not require any further enhancement.  

(xiv) The admission of facts along with the confirmatory empirical  

data suggests that around 20 TMC of groundwater is available

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beneath the surface in Tamil Nadu which the Tribunal has not  

taken into account citing it as a conjecture. We, while keeping  

in mind the risks associated with over extraction of  

underground water, deem it fit that 10 TMC of the said  

available groundwater in Tamil Nadu can, in the facts and  

circumstances of the present case, be accounted for in the  

final determination of its share.  

(xv) The Tribunal had drastically reduced the share of Karnataka  

towards Domestic and Industrial purpose for the reason being  

that only 1/3rd of the city of Bangaluru falls within the river  

basin and also on the presumption that 50% of the drinking  

water requirement would be met from ground water supply.   

The said view taken by the Tribunal ignores the basic principle  

pertaining to drinking water and is, thus unsustainable.   

Keeping in mind the global status that the city has attained,  

an addition of 4.75 TMC is awarded to Karnataka.  

(xvi) The perspective of the Tribunal to assign 10 TMC of water for  

environmental protection does not require to be revisited, for  

such a revisit may result in unwarranted pollution and defeat  

the conception of sustained environmental purity.

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(xvii)  In totality, we deem it appropriate to award to the State of  

Karnataka an additional 14.75 TMC of water, i.e., 10 TMC (on  

account of availability of ground water in Tamil Nadu) + 4.75  

TMC (for drinking and domestic purposes including such need  

for the whole city of Bengaluru).    

(xviii) In view of the allocation of additional 14.75 TMC of water to  

Karnataka, the State of Karnataka would now be required to  

release 177.25 TMC of water at the inter-state border with  

Tamil Nadu, i.e., at Billigundulu.  

(xix)The argument of the Union of India that Section 6A of the 1956  

Act by employing the word "may" has left room for discretion  

to the Central Government for the purpose of framing a  

scheme does not stand to reason and further it does not meet  

the substance test. Accordingly, the said submission stands  

repelled.  That apart, the framing of the scheme is exclusively  

meant for implementation of the award or as the same gets  

modified by this Court.  

(xx) It is made clear that subject to the scheme to be formulated  

under Section 6A of the 1956 Act, in terms of the present  

adjudication, the recommendations/directives of the Tribunal

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with regard to the monthly releases and not inconsistent with  

anything decided herein, are hereby endorsed for the present  

for a period of 15 (fifteen) years hence.  

 

405.  It is obligatory to clearly state that in view of the acute scarcity  

of the water resources and the intensely contested claims of the  

States, it is expected that the allocations hereby made would be  

utilized for the purposes earmarked and accepted and no deviancy  

is shown in carrying out the verdict of this Court.  

406.  Before parting with the case, we record our unreserved and  

uninhibited appreciation for Mr. Fali S. Nariman, Mr. S.S. Javali,  

Mr. A.S. Nambiar, Mr. Rakesh Dwivedi, Mr. Shekhar Naphade, Mr.  

Shyam Divan, Mr. Jaideep Gupta, learned senior counsel, Mr.  

Ranjit Kumar, learned Solicitor General of India, Mr. Mohan V.  

Katarki, Mr. G. Umapathy, Mr. M.R. Naik and Mr. S.C. Sharma  

learned counsel for their able assistance without which it would  

have been extremely  difficult on our part to write this judgment.

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407.  In the ultimate analysis, Civil Appeal No. 2453 of 2007 filed by  

the State of Karnataka is partly allowed and all others Appeals  

stand disposed of accordingly.  There shall be no order as to costs.  

        …………………………………….CJI         (Dipak Misra)             ……………………………………….J.         (Amitava Roy)             ……………………….………………J.  New Delhi;    (A.M. Khanwilkar)  February 16, 2018