State of Karnataka v. State of Tamil Nadu

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. 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.

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 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, 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 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 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.

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 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:- ―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.

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. 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 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 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.

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 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. 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 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 — (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:- ―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 subsection (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‖

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 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 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 others[2] 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 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, 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 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.

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, 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. (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 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 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 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.‖

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 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 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? (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 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? (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 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 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 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? (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.              Classification of towns/            Recommended     │
│    No.                        cities                    maximum         │
│                                                         water  supply   │
│                                                         levels          │
│                                                         (lpcd)          │
├─────────────────────────────────────────────────────────────────────────┤
│    1.       Towns provided with piped water supply but       70         │
│             without sewerage system                                     │
│    2.       Cities provided with piped water supply where    135        │
│             sewerage system is existing/contemplated                    │
│    3.       Metropolitan and Mega cities provided with       150        │
│             piped water supply where sewerage system is                 │
│             existing/contemplated.                                      │
└─────────────────────────────────────────────────────────────────────────┘

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 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 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 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:- "(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 nonirrigational 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 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:

(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.

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 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, 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 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 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 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 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 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 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. State[3]. 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 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.‖

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 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:- ―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 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. 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 Chhotamlal[4]. 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 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 v. Union of India and another[5]. 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 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 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 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 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. 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.

77. In this regard, we may usefully refer to the authority in State of Tamil Nadu v. State of Kerala and another[6] 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 others[7]. 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 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 (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?‖

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) 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 subsection (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 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.‖ ―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 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 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 nonpolitical 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 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 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 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 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 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 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,

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 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 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 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 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 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 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 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:- ―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 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 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 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.‖

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 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 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 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 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 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 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.‖ ―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 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 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.‖

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.‖ ―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 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 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.

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 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 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."

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." "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. 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."

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. 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: ―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 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 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.‖ ―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.

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

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.

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:- ―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 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.

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, 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; (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 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

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:

22 2017 (7) SCLAE 234 23 1964 (6) SCR 846 ―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‖.‖ ―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 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 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 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 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 reorganized, 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 preexisting 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 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 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 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

(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;‖

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 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.‖

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 (2) Subject as aforesaid, the Government of each State specified in Part B of the First Schedule shall, as from the commencement of this Constitution, be the successor of the Government of the corresponding Indian State as regards all property and assets and all rights, liabilities and obligations, whether arising out of any contract or otherwise, other than those referred to in clause (1).‖

132. Emphasis has been laid on Article 295(2). According to Mr. Dwivedi, under the Reorganisation Act, the existing rights and liabilities and the existing laws continue to be enforced and continue to be binding upon the successor State so long as they are not modified, changed or repudiated by the successor State. It is his further submission that in the case of Mysore, the territories of Part B Mysore and Coorg alone are in the Cauvery Basin and the laws operating in part B Mysore qua sharing of Cauvery waters secured for Mysore under the 1924 Agreement would continue. If the interest of Coorg was to be secured after the formation of new Mysore State, the provisions of Sections 107 and 119 covered the same. He has propounded that neither the Union Government nor the State of Mysore acted otherwise and the agreement continued to remain in force.

133. We may clearly state here that nothing has been brought on record to show that any dispute was raised after the Reorganisation 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.

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 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 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 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 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 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 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 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 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 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 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 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, 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 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.

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 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.

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. 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.‖

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. 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 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.

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:- (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

(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 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 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 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 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)

(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) 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) 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 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; (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 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 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:- ―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.‖

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.

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 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 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. 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 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. 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 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 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 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 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 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 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 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 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 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 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 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 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 developments made in the different State vis-a-vis the share of each riparian State.

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 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. 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 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 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 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 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 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 evapotranspiration 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 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 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 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.

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.

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 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 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 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 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 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 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 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 overwithdrawals 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 overwithdrawals 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. 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 (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 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 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, 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 subbasin 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 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. 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 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 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 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 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 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 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 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 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, 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 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 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 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.

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 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, 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. 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 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 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 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. 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 aforementioned four categories qua Madras/Tamil Nadu as hereinbelow:

(i) Area under irrigation in Madras/Tamil Nadu prior to

(ii) Area for development as per the provisions of 1924

(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 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 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 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 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 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 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 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 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 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 sugarcane only on 40,000 acres which it has raised to about 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 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 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.

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.

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 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 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 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-avis 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 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 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 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 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 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 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 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 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 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 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 semidry, 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.

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.

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 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 evapotranspiration) 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 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 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 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:-

(i) Kuruvai - 4.00 ft.

(ii) Samba - 3.40 ―

(iii) Thaladi - 2.50 ―

(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 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 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 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 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)

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

2. Cities provided with piped water supply where sewerage system is existing/contemplated

3. Metropolitan and Mega cities provided with piped water supply where sewerage system is existing/contemplated. Purpose Quantity (lt. phpd) Drinking 3 Cooking 5 Bathing 15 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 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

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. 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.

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 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 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 nonmonsoon 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 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 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 evapotranspiration 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 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 needs as an over populated and industrially under developed State, its share of water works out as 99.[8] TMC including nonconsumptive 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 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]

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] 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.‖

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 transbasin 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.

(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 projectwise allocations based on socio-economic needs, agroclimatic 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 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 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 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:-

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 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:-

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

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 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 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 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

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 =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