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PETITIONER:

STATE OF ANDHRA PRADESH

Vs.

RESPONDENT:

STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT: 25/04/2000

BENCH:

R.P.Sethi,U.C.Banerjee,V.N.Khare,G.B.Pattanaik,S.B.Majumdar

JUDGMENT:

PATTANAIK, J.

The State of Andhra Pradesh has filed the suit under

Article 131 of the Constitution of India, impleading the

State of Karnataka, Union of India and State of Maharashtra

as party defendants, seeking relief of declaration and

mandatory injunction on the allegation that the State of

Karnataka, in particular has made gross violations of the

decision of Krishna Water Disputes Tribunal and such

violations have adversely affected the residents of the

State of Andhra Pradesh. The relief sought for in the suit

are as under:

(a) declare that the report /decision dated

24.12.1973 and the further report/deecision dated 27.5.1976

of the Krishna Water Disputes Tribunal (KWDT) in their

entirety are binding upon the three riparian States of

Maharashtra, Karnataka and Andhra Pradesh and also the Union

of India; (b) declare that the riparian States are duty

bound to fully disclose to each other and also to the Union

of India all particulars of all projects undertaken or

proposed after December, 1973 and May, 1976 and to direct

the defendants to ensure that execution thereof are in

conformity with and do not conflict with or violate the

decisions of the KWDT and they do not adversely affect the

rights of the other riparian States; (c) declare that the

party States are entitled to utilise not more than the

quantity of water which is allocated or permitted by the

decisions of the KWDT for the respective projects of the

respective party States before the Tribunal; and that any

variation in either storage or utilisation of the waters by

each such state in respect of each of such projects could

only be with the prior consent or concurrence of the other

riparian States; (d) declare that all the projects executed

and/or which are in the process of execution by the State of

Karnataka which are not in conformity with and conflict with

or violate the decisions of the KWDT, as illegal and

unauthorised.

(e) declare that approvals /sanctions/ clearances/

in-principle clearances granted by the Union of India on or

after KWDT decisions on 24.12.1973 and on 27.5.1976 in

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respect of schemes/projects/ undertaken by the Government of

Karnataka are invalid and direct the Union Government to

review /reconsider all such schemes/ projects proposed /

undertaken by Karnataka, afresh, after obtaining the views

thereon of the other riparian States;

(f) declare that the State of Karnataka and

Maharashtra shall not be entitled to claim any rights

preferential or otherwise in respect of storage, control and

use of waters of the inter- State river Krishna in respect

of the schemes /projects not authorised by the decision of

the KWDT; (g) declare that the Union Government is duty

bound to consult all the riparian States of Maharashtra,

Karnataka and Andhra Pradesh before according any approvals

/ sanctions / clearances / in-principle clearances to any

schemes / projects proposed / undertaken by any of the

riparian States on the inter-State river Krishna and direct

the Union Government to act in terms of the said

declaration; (h) grant a mandatory injunction directing the

State of Karnataka to undo all its illegal, unauthorised

actions regarding projects/ schemes and in particular the

following projects executed by it contrary to the decisions

of KWDT so as to bring them in conformity with the said

decisions:

Almatti Dam under UKP

Construction of Canals/Lifts Schemes on Almatti

Reservoir.

Upper Krishna Projects in K-2 Sub-basin.

Hippargi Weir/Irrigation Schemes.

Construction of Indi and Rampur lift schemes on

Narayanpur reservoir and the canals.

(i) grant a permanent injunction restraining the State

of Karnataka from undertaking, continuing or proceeding with

any further construction in respect of the following

projects: Almatti Dam under UKP Construction of

Canals/Lifts Schemes on Almatti Reservoir

Upper Krishna Projects in K-2 Sub-basin.

Hippargi Weir/Irrigation Schemes.

Construction of Indi and Rampur lift Schemes on

Narayanpur reservoir and the canals.

(j) appoint a team of experts for making a

comprehensive techno-economic evaluation and environmental

impact analysis in respect of the following projects and,

pending orders of this Honble Court on the report of the

team of experts, grant an order of injunction restraining

the Defendant No. 1 State of Karnataka from proceeding

with any further construction in any of the following

projects/schemes: Almatti Dam under UKP Construction of

Canals/ Lifts Schemes on Almatti Reservoir

Upper Krishna Projects in K-2 Sub-basin.

Hippargi Weir/Irrigation Scheme.

Construction of Indi and Rampur lift schemes on

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Narayanpur Reservoir and the canals.

(k) to issue a permanent injunction restraining the

Defendant No. 1 State of Karnataka from growing or allowing

to grow sugarcane or raising other wet crops in the command

areas falling under the projects/schemes within the Upper

Krishna Project; (l) pass a decree in terms of prayers (a)

to (k); and (m) award costs of the present proceeding in

favour of the Plaintiff;

(n) pass such further decree or decrees or other

orders as this Honble Court may deem fit in the facts and

circumstances of the case.

Though there are as many as 14 reliefs sought for as

stated above, but essentially the reliefs relate to the

construction of Almatti Dam under Upper Krishna Project by

the State of Karnataka to a height of 524.256 M. Though the

averments of facts in the plaint have been made in 71

paragraphs, shorn of minute details, the same may be stated

as under: That the dispute between the three riparian

States namely Maharashtra, Karnataka and Andhra Pradesh with

respect to use, distribution and control of the water of

inter- State river Krishna stood resolved by the decisions

of the tribunal, constituted under Section 4 of the

Inter-State Water Disputes Act, 1956 (hereinafter referred

to as the Act) by the decision rendered in 1973 and the

Further decision rendered in 1976. The said decision having

been notified by the Central Government under Section 6,

became binding on all parties. All the parties-States being

constituents of the Federation of Republic of India, the

plaintiff expected that each State, while undertaking their

projects for utilisation of the quantity of water allocated

in their favour by the tribunal would consult with the other

concerned States and would so use, which will not be against

the decision of the tribunal in any manner. But the State

of Karnataka has not been acting in accordance with the

letter and spirit of the decision of the tribunal and on the

other hand has violated the expressed terms and conditions

of the tribunal, which compelled the State of Andhra Pradesh

to invoke the jurisdiction of the Supreme Court under

Article 131 of the Constitution. After indicating the

topography of the river as well as the three riparian States

and the disputes which arose between the States that lead

the Central Government to constitute the Krishna Water

Disputes Tribunal, the plaintiff has stated that the

tribunal framed seven main issues and under issue No. II

with its eight sub-issues, decided the question of equitable

apportionment of the beneficial use of the waters of the

river Krishna and the river Valley by evolving Scheme A

and making the same as its Final Order or decision, which

became binding on all the parties, after the same was

notified by the Union Government under Section 6 of the Act.

It is not necessary for us to reiterate all the facts

leading to the raising of disputes and constitution of the

tribunal, which we have already narrated in judgment in

O.S.1 of 1997, filed by the State of Karnataka. The

plaintiff then has averred as to how on the basis of

agreement between the parties, the 75% dependable flow at

Vijayawada was found to be 2060 TMC and while considering

the case of each State for allocation of their respective

share of water in respect of the aforesaid 75% of dependable

flow, several projects in the river basin, already

undertaken by the States as well as the quantity of water

required for the projects were considered by the tribunal on

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the basis of which the ultimate figure of allocation were

arrived at. According to the plaint, the tribunal, while

restraining the States of Maharashtra and Mysore from using

more water than allocated in their favour, granted liberty

to the plaintiff-State of Andhra Pradesh to use the

remaining water with the rider that the State of Andhra

Pradesh will not acquire any right to the user of such water

except to the extent allocated to it. The plaintiff also

averred that while making allocation to the three States, no

express provisions were made for sharing of any deficiency

and further the tribunal took note of the fact that out of

100 years, deficiency may occur in 25 years. It was also

averred that to relieve the State of Andhra Pradesh from the

aforesaid difficulty, the tribunal permitted the State of

Andhra Pradesh to store water in the Nagarjunasagar Dam and

in Srisailam Dam and held that for such storage, there would

not be any deduction from its share out of the dependable

flow on the ground that if the water is not allowed to be

stored by the plaintiff-State, then it would flow down and

get submerged in the sea. According to the plaint, the

tribunal did consider the different project reports which

had been produced before it, in relation to the Upper

Krishna Project and allowing the protected utilisation of

103 TMC, it came to the conclusion that the demand of State

of Karnataka to the extent of 52 TMC to be utilised by

Narayanpur Right Bank Canal is worth consideration. After

enumerating the different clauses of the Final Order of the

tribunal in its original report of 1973, the plaintiff has

averred that though the tribunal has made allocation enbloc

in a negative form namely that the State cannot utilise more

than the allocable quantity of water in its share in any

water year but the said enbloc allocation has to be read in

the light of the relevant stand of the parties before the

tribunal, the facts and figures produced before the tribunal

and the ultimate basis on which the conclusion was arrived

at. According to the plaintiff, by taking recourse to the

aforesaid method, it would be crystal clear that party-

States were restrained from utilising in different

sub-basins of river Krishna within their respective

territory, beyond what was considered as the protective use

and the additional quantity allocated to their share. It

has been averred in the plaint that so far as Upper Krishna

Project is concerned within the State of Karnataka, the

tribunal has allocated only 160 TMC of water for being used

and the construction of Almatti Dam to the height of 524

Meters, as indicated by the State of Karnataka, would,

therefore, on the face of it, is in violation of the

decision of the tribunal. After referring to the different

applications for clarifications sought for by different

States under Section 5(3) of the Act and the answer of the

tribunal on the same, the plaintiff has also averred as to

how the tribunal dealt with the contentions raised by the

State of Maharashtra before it, in relation to the

allocation of 52 TMC of water from Narayanpur Right Bank

Canal. According to the plaintiff, though, no doubt in the

Final Order of the tribunal, there has been a mass

allocation of water in favour of the three riparian States

out of the 2060 TMC of water under 75% of dependability at

Vijayawada, which figure was arrived at by consent of the

parties, but a closer scrutiny of the report in its entirety

being examined, it would be apparent that the allocation in

respect of different sub-basins had been made on the basis

of projects undertaken in those sub-basins and consequently,

no State would be entitled to use the entire quantity of

water allocated in their favour in any particular sub-basin.

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The plaintiff, then has averred that the post award

developments undertaken by the State of Karnataka, intending

to raise the height of Almatti Dam to 524 Meters is nothing

but a gross violation of the decision of the tribunal and,

therefore, this Court should injunct the State of Karnataka

in going ahead with the Almatti Dam upto the height of 524

Meters, as indicated in its project. The plaintiff then

referred to several correspondence made between the State of

Karnataka and State of Andhra Pradesh inter se, as well as

correspondence between these States and Union Government and

Central Water Commission. It has also been averred that

allowing the State of Karnataka to construct the dam at

Almatti up to a height of 524 Metres would be grossly

detrimental to the lower riparian state of Andhra Pradesh

inasmuch as for three months in a year from July to

September, the State of Andhra Pradesh may go dry and the

entire crop in the State would get damaged for paucity of

water. The plaintiff also has averred in several paragraphs

of the plaint, as to how the plaintiff-State has been

demanding from the State of Karnataka to have suitable

information in relation to the construction of the dam at

Almatti and how the plaintiff-State has been prevented from

being favoured with any such information. In paragraph 34

of the plaint, the plaintiff refers to the letter addressed

to the Chief Minister of Andhra Pradesh by the then Union

Minister for Water Resources, proposing to convene a meeting

of Chief Ministers of the Krishna Basin States for

discussing Upper Krishna Project Stage-II and along with the

said letter, the observation of Central Water Commission,

indicating how the project at Almatti creates a physical

capability of water utilisation in excess of 173 TMC, which

would be possible in view of the proposed top of the radial

gate at FRL 521 meters against the required level of 518.7

meters for utilisation of 173 TMC of water. In the

subsequent paragraph of the plaint, it has also been

indicated as to how the State of Andhra Pradesh has been

objecting to the proposals of the State of Karnataka to have

the height of Almatti dam at 524 meters under the guise of

flood protection measure and then how the plaintiff State

requested the Prime Minister of India to intervene in the

matter to avoid violation of the award of the Krishna Water

Disputes Tribunal. In paragraph 39 of the plaint, it has

been averred that the Union Government as well as the

Central Water Commission which are responsible for clearance

of inter-State Projects, bent upon clearing the Almatti

Project up to a dam height of 524 meters without even

consulting the State of Andhra Pradesh, though, according to

the plaintiff in a Federal Structure of the Government, each

constituent State would be entitled to know the progress of

any project in relation to inter-State river, since it may

have several adverse effects on the other States. The

plaintiff also averred that at the behest of the State of

Andhra Pradesh, the United Front Government, which was at

the Centre, constituted a Committee of four Chief Ministers

to examine the issues relating to the construction of

Almatti Dam, which committee in turn, decided to constitute

an Expert Committee with a representative of the Central

Water Commission and Planning Commission, who, however, did

not ultimately participate in the proceedings. The said

Expert Committee has found that the proposal of the Upper

Krishna Project with FRL of 524.256 meters for Almatti Dam

is under consideration and has not been approved by the

Government of India, though many canals have been designed

and constructed for larger capacity meant for future uses

and it is not necessary to build a bigger storage of 227 TMC

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at Almatti dam with top of shutter at 524.256 meters. The

said Committee had also observed that the FRL on the top of

the shutter be fixed for the present at 519 .6 meters and

the gates be manufactured and erected accordingly and this

will be adequate to take care of the annual requirements of

173 TMC presently envisaged under the Upper Krishna Project.

The said Committee, therefore, suggested the restriction of

the height of the dam at 519.6 meters. The plaintiff

however does not accept of the entitlement of the first

defendant to use 173 TMC under UKP and the height of the dam

at 519.6 meters. From paragraph 52 onwards, the plaintiff

then has made averments indicating the negotiations and

further developments in the matter and then states that the

Ministry of Power, Government of India having indicated that

in principle clearance of construction of Upper Krishna

Hydro- electric power project at Almatti, contemplating the

height of the dam at 524.256 meters was contrary to the

award of the tribunal, and therefore, the plaintiff-State

lodged its objections by letter dated 18th of October, 1996,

to which the reply came that in principle clearance is not

a techno- economic clearance and it is purely an

administrative action to facilitate developmental

activities. The plaintiff, thereafter by its letter dated

18th of December, 1996, requested the Secretary, Ministry of

Water Resources, Govt. of India to ensure forthwith the

publication in the Gazette of India the decision of the

Krishna Water Disputes Tribunal i.e. the report dated

24.12.1973 and the further report dated 27.5.1976 in its

entirety. But since it became apparent that the Defendant

No. 1 State of Karnataka was not at all inclined to resolve

the problem by any amicable discussion nor did it desire any

effort for mediation being undertaken by anyone whatsoever,

the plaintiff had no other alternative but to approach this

Court under Article 131 of the Constitution for declarations

and injunctions against the Defendants for protection of the

rights of the plaintiff State as well as the rights of its

inhabitants flowing from the decision of the Krishna Water

Disputes Tribunal. From paragraph 65 onwards, the plaintiff

has narrated several facts constituting violations of the

decision of the tribunal by the State of Karnataka and from

paragraph 69 onwards, the plaintiff has indicated the role

played by the Central Government in the matter of allowing

the State of Karnataka to raise the height of the dam, which

would ultimately lead to violation of the terms and

conditions as well as the restrictions in the award of the

tribunal and which would infringe the rights of the State of

Andhra Pradesh and its inhabitants. The cause of action for

filing the suit has been indicated in paragraph 73 of the

plaint, namely indulgence of the State of Karnataka in going

ahead with the Upper Krishna Project Stage I and II with the

construction of the Almatti Dam which is in violation of the

decision of the tribunal in letter and spirit.

Defendant No. 1- State of Karnataka in its written

statement, took the stand that the tribunal had not made any

project-wise allocation and on the other hand, the

allocation is enbloc and as such the question of

interpreting the decision of the tribunal to the effect that

there is restriction in the user of water in any particular

Basin is not correct. It has been further averred that the

State of Karnataka had contemplated the height of the Dam at

Almatti as 524.256 m in the Project Report of 1970 itself

and that Report had been filed before the tribunal and had

been marked as document MYPK-3. Neither the State of Andhra

Pradesh nor any other State had raised any objection to the

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said Project Report and there was no issue before the

tribunal on that score and in fact the height of the Almatti

Dam was not a matter of adjudication before the tribunal.

In this view of the matter, the plaintiff-State is not

entitled to raise that issue on the purported allegation

that it amounts to violation of the decision of the

tribunal. It is also contented that an identical issue

having been raised by an individual by filing a writ

petition in the Andhra Pradesh and after dismissal of the

same, the matter having been brought to this Court and the

order of the Andhra Pradesh High Court has been affirmed,

the same question cannot be re-agitated by filing a suit by

the State under Article 131 of the Constitution of India.

In respect of the decision of the Committee, which stated

about the FRL 519.6 m, it has been averred in the written

statement that the said Committee considered the height at

519.6 meters to be sufficient, taking into account the

storage capacity of the dam which will take care of the

annual requirement of 173 TMC in a water year but it did not

take into account the further water that may be needed for

generation of power and the project at Almatti with the

height of the dam beyond 519.6 meters and up to 524.256

meters being only for power generation and the water thus

used for power generation being non-consumptive, there is no

question of violation of any direction of the tribunal when

the State of Karnataka has decided to have the height of the

dam at Almatti at 524.256 meters. It has been specifically

averred in the written statement that the decision of the

tribunal which has been Gazetted under Section 6 of the Act

has not imposed any restriction on any State for

construction of any Project and on the other hand Clause XV

expressly mentioned that : Nothing in the order of the

tribunal shall impair the right or power or authority of any

State to regulate within its boundaries the use of water, or

to enjoy the benefit of water within that State in a manner

not inconsistent with the order of this tribunal and in

view of such specific provision, it is futile for the State

of Andhra Pradesh to contend that the height of the dam at

Almatti should not be raised to 524.256 meters. The

defendant has further averred that the Project at Almatti

has been undertaken at huge cost exceeding Rs.6000 crores

and it is not in national interest to stop the project at

this advance stage and the suit has been filed with the

design to cause delay in the completion of the projects

undertaken by the State of Karnataka. It has been

reiterated that the utilisation of water would be entirely

within the allocated quantity made by the tribunal.

According to Defendant No. 1, the plaintiff has not made

out any case of breach of its legal rights and, therefore

the suit under Article 131 of the Constitution is not

maintainable. The defendant also narrated the background

under which the Central Government set up the tribunal for

adjudication of the disputes between the riparian States and

how ultimately the tribunal gave its report, stating therein

the facts found as well as the decision thereon. The

defendant State has also stated in the written statement

that the Almatti Dam has been designed for utilisation of

173 TMC for Upper Krishna Project in two stages and the

State had indicated that height, right from the inception

before the tribunal itself, though neither any party raised

any objection nor any issue was struck, nor any decision

thereon has been given by the tribunal itself and in this

view of the matter any grievance with regard to the height

of the dam at Almatti would be a fresh water dispute and

would not come within the adjudicated dispute and decision

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thereon by the tribunal itself and, therefore, the suit

filed under Article 131 is not maintainable. It has been

specifically averred that the storage level at Almatti Dam

from 519.6 meters to 524.256 meters is not at all an

increase, particularly, when the tribunal itself expressly

noted the contemplated completion of the Almatti Dam to the

full height that is the height in Exhibit MYPK-3. The

defendant also referred to the report of the Central Water

Commission dated January 30, 1994, whereunder it has been

indicated that since the power generation is contemplated

under the project at Almatti by way of utilising the extra

storage of water between 519.60 meters and 521 meters, the

project may be treated as a multi-purpose project (the level

required to utilise 173 TMC of water for irrigation is

519.60 meters). The Defendant-State of Karnataka has

specifically averred that even though the dam height is

raised to this final level of 524.256 meters, the quantity

of water that could be utilised for irrigation is only 173

TMC as per allocation made in the Award and any additional

quantity over and above 173 TMC will be let out into the

river after generating power. It has also been contended

that the dispute raised being a water dispute in respect of

an inter-State river, the same is governed by Article 262 of

the Constitution read with Section 11 of the Inter-State

Water Disputes Act, and therefore, suit under Article 131 is

not maintainable. All allegations made by the plaintiff

about the misuse of position have been denied. It has also

been denied that neither there is any requirement of the

decision of the tribunal nor any liability which compels any

State to consult another State in the matter of planning of

the projects for utilisation of its water resources and the

contention raised by the State of Andhra Pradesh in this

regard is wholly mis-conceived. The defendant further

contends that the State of Andhra Pradesh not having

utilised the opportunity to seek clarification under Section

5(3) of the Act with regard to the height of or any other

specification of the Almatti Dam is not entitled to raise

this dispute in this Court by filing a suit under Article

131 of the Constitution. The defendant-State of Karnataka

reiterated that the utilisation of water under the U.K.P.

first at Almatti and later at Narayanpur downstream, is

entirely within the scope of 173 TMC and in any event within

the aggregate share of 734 TMC allocated to the defendant

Karnataka and the construction of the Upper Krishna Project

at Almatti and at Narayanpur is all consistent with the work

specifications prescribed by the Expert technical bodies in

all respect including the provision for river sluices. In

respect of Clause XV of the Final Order of the tribunal, the

defendant averred that the quantity of 155 TMC considered in

respect of Upper Krishna Project does not restrict the

defendant Karnataka from planning increased utilisations by

taking into account quantities of 34 TMC regeneration, 23

TMC of water by diversion of Godavari waters and of 50% of

the surplus flows becoming available after the adoption of

Scheme B devised by the tribunal. It is contended that

the tribunal having not provided for allocation or

utilisation project-wise, so long as there has been no

contravention of the mass allocation made, the plaintiff has

no grievance and is not entitled to file the suit. It has

been stated in the written statement that in the re-

submitted modified proposal dated 21st of April, 1996 for

Upper Krishna Project Stage II as multi-purpose project,

incorporating compliance of the various comments of CWC and

also then again proposing a FRL of 524.256 meters, clearly

stating that even though the dam was to be raised to its

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final level of 524.256 m, the utilisation for irrigation

would be only 173 TMC as per the readjustment of the

project-wise allocations in the Master Plan within the scope

of the Scheme A allocation of 729 TMC and as such, there

has been no deviation, so far as the height of the dam at

Almatti is concerned. With regard to the allegations made

in the plaint, concerning development seeking a political

solution to the dispute, the defendant-Karnataka denies all

the averments made in that respect and asserts that

execution of projects is within its entitlement and limits

permitted by the decision of the tribunal. With regard to

the initiative taken by the Prime Minister of India by

holding a meeting on 10.8.1996, it has been stated that such

initiative was frustrated by the uncompromising and

unreasonable attitude of political leaders of Andhra

Pradesh. So far as the Committee of four Chief Ministers

are concerned, it has been averred that the Committee of

Experts, constituted by the four Chief Ministers even did

not frame any terms of reference for consideration, though

requested by the State of Karnataka and it conducted the

proceedings in a summary manner. The Chief Minister of

Karnataka in fact had apprised the Chief Minister of West

Bengal about the same by letter dated 19.12.1996 and after

receipt of the so-called report of the Expert Committee, the

Chief Minister of Karnataka had conveyed its reaction to the

findings by his letter dated 25.2.1997 to which the Chief

Minister of West Bengal had replied that the points are

being examined and according to the State of Karnataka, the

matter remained inconclusive and as such cannot have any

binding effect. In the written statement, the defendant No.

1 also averred that the findings of the said Expert

Committee are erroneous. With regard to the allegations in

the plaint that storage of huge quantity of water by

construction of Almatti Dam would affect the interest of

Andhra Pradesh and its inhabitants, the defendant Karnataka

denies the same and also stated that the dam is intended to

utilise about 173 TMC of water for irrigation and the

remaining storage water will be used for non-consumptive

purpose i.e., production of power and, therefore, the water

will flow down to Andhra Pradesh and the said State will not

be affected in any manner. With respect to allegations in

the plaint regarding incorporation of Chamundi Power

Corporation Ltd., the State of Karnataka has averred that

the State is pursuing the matter before the Central

Electricity Authority in accordance with law and the

question of getting the consent of the plaintiff does not

arise. So far as the assertions made in the plaint about

the cascading and far-reaching effect on the environment is

concerned, the State of Karnataka denies the same. On the

question of alleged submergence, it has been averred that

the State of Karnataka would take all adequate steps to

provide compensation in accordance with law and rehabilitate

the displaced population, if any. The assertions that

Almatti Dam would render the major projects in Andhra

Pradesh redundant, has been denied. So far as the

allegation regarding violation of environmental law is

concerned, it has been averred in the written statement that

the applications for environmental clearance are under

process by the Government of India and the State of

Karnataka has not done anything without the appropriate

clearance from the Appropriate Authorities. According to

the defendant-State of Karnataka, the averments in the

plaint are mis-leading and lacking of bona fides and all

allegations and insinuations against the Chief Minister of

Karnataka are denied. All other allegations of illegality

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being perpetuated by the State of Karnataka have been

denied. So far as creation of Jal Nigam is concerned for

effective execution of the Upper Krishna Project, the State

of Karnataka contends that the said Nigam is wholly

Government owned company and all its activities are

controlled by the Department of Irrigation, Govt. of

Karnataka and, therefore, the allegation of the plaintiff

that the State is abdicating its responsibility for the

execution of the project is incorrect and is denied. It has

been categorically averred that the Karnataka State would be

subjected to irreparable loss if the works at Almatti are

stopped and the State of Andhra Pradesh wants to reap the

benefit of the liberty to use the surplus water flowing in

the river in view of the mass allocation made in favour of

the three States. It has been specifically averred that the

storage of additional water between the height of 519.6 to

524.256 meters will be used for power production only and

not for irrigation till the augmentation of waters by

Godavari diversion and surplus waters under Scheme B is

made available. It has been specifically averred as to how

the Government of Karnataka has sought for approval for

taking up the cluster of hydel projects at Upper Krishna

Project in phases and how the Central Electricity Authority

has accorded in-principle clearance. At the cost of

repetition, the State of Karnataka has averred that there

has been no deviation of the decision of the tribunal and

the Almatti Dam has been planned for utilisation of the

allocated water by the tribunal in favour of the State of

Karnataka. According to this defendant, the State of Andhra

Pradesh being the last riparian State is receipient of

abundant waters comprising the un-utilised share of upper

riparian States in addition to its allocations made in its

own favour and, therefore, no case has been made out

establishing any injurious hardships so as to entitle the

State to get a discretionary relief of injunction. The

defendant also averred that the plaintiff has not placed an

iota of evidence based of any acceptable material

establishing the alleged loss of drinking water, food grains

or unemployment and all such allegations are falacious.

According to the State of Karnataka, all the revised schemes

at all relevant times had been submitted before the

Appropriate Authorities of the Central Government and

projects are being taken up only after getting clearance

from the competent authorities. It has been averred at the

end that the basis of the suit being that the allocation

made by the tribunal is project-wise and the said basis

being in-correct, the plaintiff is not entitled to the

reliefs prayed for by filing the suit under Article 131 of

the Constitution.

Union of India defendant no. 2 in its written

statement raised the preliminary objection about the

maintainability of the suit on the ground that the suit as

framed is not maintainable in view of Article 262 of the

Constitution of India read with Section 11 of Inter-State

Water Disputes Act, 1956. Generally denying the allegations

made in the plaint the Union of India took the positive

stand that Karnataka multipurpose project Stage II which

envisages generation of Hydropower is still under

examination and the project report provides for Hydropower

generation by storing water at the addition of storage space

from 519.6 M to 524.256 M and it has been indicated that

after generating the Hydropower the tail race water after

power generation will be let into the river Krishna and the

utilisation of river Krishna water under UKP will be within

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173 TMC. With regard to the plaint allegation that under

the Award Tribunal has allocated water projectwise, the

Union of India submitted that the allocation of water is

gross allocation and not the project wise allocation. It

has been further stated that the State is entitled to

utilise the gross amount of water for any such projects and

so long as utilisation by Karnataka is within 173TMC in

upper Krishna project, there is no violation of Krishna

Water Disputes Tribunal Award. It has also been indicated

that Stage I of UKP has been approved and Stage II is under

various examination and not yet been approved. So far as

the plaint case that Central Government is required to

consult other States while clearing projects of one State,

it has been averred that there is no obligation on the

Central Government to consult said party State while

clearing projects of other party State of Krishna basin when

they are within the framework of KWDT Award. The financial

assistance by Central Government is being given to the State

in the shape of grants and loans. So far as Almatti project

in particular is concerned the stand of the Union Government

in its written statement is that UKP stage I has already

been approved and it was approved by the Planning Commission

on 22nd April, 1978 under which the construction of Almatti

Dam to a partial height corresponding to FRL 512.2 m with

solid spillway crest level at EL 500 m and with 12.2 m high

gates. But in view of the technical difficulty of

dismentaling and reerecting the radial gates of such height

in Stage II, the Government of Karnataka desired to do

construction of Almatti dam with full section as required

for ultimate stage and solid crest upto 512 m in UKP Stage I

itself. The revised proposal of Government of Karnataka was

examined by the Central Water Commission and considered by

Technical Appraisal Committee in its 20th Meeting held on

12.5.1982. The TAC recommended that the clearance of the

Government of India for raising Almatti Dam in full width

upto EL 500 m may be accorded subject to the observation

that revised estimate be submitted by the State Government.

Subsequently, the State Government came up with modified

proposals with Almatti spillway crest at EL 509 m and 15.2

high radial gates with a view to reduce submergence under

Stage I of the project. This revised stage I estimate got

the approval of the Planning Commission on 24.4.1990.

According to the written statement of the Central

Government, Stage I of UKP was duly approved by the Central

Water Commission as well as by the Planning Commission with

certain modifications enabling the State Government to take

upto Stage II at later stage. It has further been averred

that the Karnataka Government has revised Upper Krishna

project Stage II (1993) as UKP Stage II Multipurpose project

(1996) and that project is under examination. The State of

Andhra Pradesh has sent their comments to the said project

and various appraising agencies are checking the design of

gates from the structural aspect. But no final approval has

been given. The allegation of State of Andhra Pradesh that

Central Government adopted partisan attitude has been denied

and on the other hand it has been stated that the State of

Andhra Pradesh has not been able to prove that by

constructing Almatti Dam the State of Karnataka will be

utilising more water than allocated by KWDT. It is in this

context the Central Government has also averred that the

State of Andhra Pradesh is constructing Telugu Ganga Project

which is an unapproved Project. So far as the allegation in

the plaint that State of Andhra Pradesh had not been

consulted before the Department of Environment and Forest

cleared the Upper Krishna Project, it has been averred that

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there is no obligation on the part of Department of

Environment and Forest, Government of India to obtain the

views of State of Andhra Pradesh while clearing of the Upper

Krishna Project of State of Karnataka. According to the

Central Government the Award of the Tribunal is binding on

the parties and the plaintiff has not been able to show any

violation of the decision of the Tribunal.

On behalf of Ministry of Power who is Defendant No. 2

(C) a separate written statement has been filed giving reply

to the averments made in paragraphs 56 and 57 of the plaint

and it has been indicated that the expression In Principle

clearance given by the Central Electricity Authority to

Upper Krishna Project at Almatti does not tantamount to

sanction of the project by the competent authority.

According to the said defendant while appraising various

proposals for power project received from the States due

care is taken by the Ministry of Power for proper

evaluation.

The State of Maharashtra Defendant No.3 filed a

written statement fully supporting the stand taken by the

State of Karnataka and it has been averred in the written

statement that the complaint of State of A.P. proceeds on

certain assumptions which are not correct. With regard to

the main question, namely, whether there was enbloc

allocation or project wise allocation the defendant State of

Maharashtra categorically avers that the Tribunal equitably

allocated the waters of the river Krishna by allocating the

quantities enbloc or in mass quantities. Though it has

discussed individual projects of each State only for the

limited purpose of assessing the needs of each State in

accordance with the principles of equitable distribution.

It has further been stated in the said written statement

that apart from the restrictions expressly stated in the

final order of the Tribunal which has been notified by the

Central Government no other restrictions have been imposed

on the method of use by each State within the allocated

share of the State concerned and Tribunal has not put any

restriction on the storage by each State and according to

Clause VII of the final order the storage of water by each

State would not be considered as use of water by the State

concerned. In the very written statement several paragraphs

of the Report of the Tribunal have been quoted to indicate

that the ultimate allocation was enbloc and not projectwise

and further there has been no restriction or restraint

placed by the Tribunal with regard to storage, size and

height of dams in the Krishna Basin. The State has also

referred to the subsequent conduct, that after the

submission of original report and the decision of the

Tribunal the State of Andhra Pradesh infact filed

clarification note 9 and 10 on 7.5.1975 and 8.5.1975 raising

objection to the storage but ultimately withdrew those notes

and did not want any clarification on the subject of storage

which fortifies stand of the State of Maharashtra that there

is no restriction on any State in respect of storage of

water within the Krishna Basin so long as it does not exceed

the enbloc allocation given by the Tribunal. According to

this defendant the relief sought for in the plaint would

tantamount to a complete re-writing of the decision of the

Tribunal which would be outside the scope of a suit under

Article 131 of the Constitution. After refuting the stand

taken by the State of Andhra Pradesh in the plaint in

paragraph 16 of the written statement the State of

Maharashtra submitted , that the plaintiff does not deserve

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to be granted any of the prayers prayed for in this para and

the Suit should be dismissed with costs. Having filed the

aforesaid written statement on 7th July, 1997 fully

supporting the stand taken by the State of Karnataka and

seeking relief of the dismissal of the suit filed by the

State of Andhra Pradesh an additional written statement was

filed by the said State on 9th April, 1999 giving a clear go

bye to the earlier wirtten statement and taking a new stand

in relation to the alleged construction of Almatti Dam with

FRL RL 524.56 m. by the State of Karnataka. In this

additional written statement it has been averred that by

raising the dam height at Almatti, there is likelihood of

enormous damage to private and public properties and works

and structures including archeological structures and

pilgrimage places in the State of Maharashtra. There would

also be disruption of communications, enhanced distress and

damages during floods each year due to sedimentation. It

has been further averred that the details of the magnitude,

duration and extent of submergence were not clear to the

State of Maharashtra as the said submergence has not been

discussed by the Tribunal itself but on getting subsequent

documents from the State of Karnataka and on ascertaining

the effect of the proposed Almatti Dam at 524.256 m it

appears that there would be large scale submergence of area

in the State of Maharashtra and no State should be allowed

to have its project which will have deleterious and adverse

effect on the other State. It is in this connection in the

additional written statement it has been further averred

that the said State of Karnataka has not obtained the

relevant clearance from different environment authorities

and forest authorities and even the Central Water Commission

has not given the clearance and, therefore, the State of

Karnataka should be injuncted from raising the dam height

from 519.00 m. to 524.256 m. until and unless the actual

area likely to be submerged is made known after due survey.

In the written statement the adverse effect of submergence

have been indicated in different paragraphs and ultimately

it has been prayed that the prayer h, i & j sought for by

the plaintiff so far as it relates to Almatti Dam under UKP

should be allowed, namely, the State of Karnataka should be

injuncted. Though the State of Maharashtra filed the

aforesaid additional written statement taking the stand

totally contrary to the stand taken earlier but no order had

been passed on the same and it is only when the hearing of

this suit began the Court passed an order that without

prejudice to the contention of the State of Karnataka the

said additional written statement be taken into

consideration on the basis of which an additional issue is

also required to be framed.

On the pleadings of the parties, 22 issues were framed

which are extracted hereinbelow:-

1.Whether the State of Karnataka has violated the

binding decisions dated 24.12.1973 and 27.05.1976 rendered

by the KWDT by executing the projects mentioned in para 66,

68n & 69 of the Plaint? (A.P./KAR) 2.Has this Honble Court

jurisdiction to entertain and try this suit? (MAH.) 3.

Does the Plaintiff prove that the allocation of Krishna

Waters by the KWDT in its Final Order are specific for

projects and not enbloc as contended by the Defendant?

(MAH.) 4.Does the Plaintiff prove that the upper States are

not entitled to construct project without reference to and

consent of the other States? (MAH.) 5.Whether the Plaintiff

is entitled to a declaration that all the projects executed

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and/or which are in the process of execution by the State of

Karnataka, and not in conformity with or in conflict with

the Decisions of the KWDT are illegal and unauthorised?

(A.P.) 6.Is not the Union Government duty bound to consult

all the riparian States before according any

approval/sanction/clearance in principle clearances to any

schemes, projects proposed/undertaken, by any of the

riparian States on the Inter-State river Krishna? (A.P.)

7.Whether the sanctions and the approvals granted by the 2nd

Defendant to the State of Karnataka for the projects

referred to in Issue I, without the prior concurrence of

State of Andhra Pradesh are valid and binding upon the

Plaintiff?(A.P.) 8.Whether sanctions and the approvals

granted by the 2nd defendant are liable to be reviewed,

reconsidered afresh, after obtaining the views thereon of

the other riparian States?(A.P.). 9.(a) Whether the

construction of the Almatti dam with a FRL of 524.256 m

together with all other projects executed, in progress and

contemplated by Karnataka would enable it to utilise more

water than allocated by the Tribunal? (A.P.) (b) Whether

Karnataka could be permitted to proceed with construction of

such a dam without the consent of other riparian States, and

without the approval of the Central Government? (A.P.)

10.Whether the Plaintiff proves that the reservoir and

irrigation canals as alleged in paragraph 68 of the Plaint

are oversized. If so, are they contrary to the Decision of

the Tribunal? (A.P.) 11.Whether the Plaintiff State of

Andhra Pradesh proves specific allocation/utilisation for

UKP and canals as alleged? (A.P.) 12.Whether State of

Karnataka is entitled to provide for any irrigation under

Almatti canals and other new projects, when no allocation is

made under the decisions of the KWDT? (A.P.) 13.Whether the

Defendant State of Karnataka is entitled unilaterally to

reallocate/readjust the allocation/utilisation under the UKP

or any other project? Is concurrence of other riparian

States necessary? (A.P.) 14.Whether the Union of India can

permit and/or is justified in permitting the State of

Karnataka to proceed with various projects which are in

violation of the decisions rendered by KWDT? (A.P.)

15.Whether Upper Krishna Stage-II Multipurpose Project could

be executed without the environmental clearance under the

Environment (Protection)Act,1986 and the Notification issued

by the Central Government in 1994 in exercise of its power

under the said Act and the Rules made thereunder which

mandatorily requires various analysis including dam break

analysis?(A.P.) 16.Whether the acts of the State of

Karnataka adversely effect or would adversely effect the

State of Andhra Pradesh, and if so, with what

consequences?(KAR) 17.Whether Hippargi was always part of

the UKP and on that basis the KWDT awarded 5 TMC utilisation

thereunder ?(A.P.) 18.Whether the utilisation of water under

Chikkapada Salagi, Heggur and 5 other barrages is not 33 TMC

as assessed by the Plaintiff State?(A.P.) 19.Whether the

cumulative utilisations in the K2 sub-basin is 173 TMC as

claimed by the State of Karnataka or 428.75 TMC as assessed

by the Plaintiff State?(A.P.) 20.Whether the State of

Karnataka has violated the KWDT award by proceeding with

several new projects in the sub-basin such as K-6, K-8 and

K- 9 in respect of which restrictions in quantum of

utilisation have been imposed in the final decision of the

Tribunal? (A.P.) 21.Whether utilisation under Almatti would

be of the order of 91 TMC as claimed in para 66(iii) of the

plaint?(A.P.) 22.To what reliefs if any, the plaintiff is

entitled to?(A.P.) The additional issue framed as 9(C),

because of the additional written statement filed on behalf

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of defendant no.3 is to the effect, Whether Karnataka can

be permitted to raise the storage level at Almatti dam,

above RL 509.16 meters in view of the likely submergence of

territories in Maharashtra.

Before we take up the different issues framed by the

Court and answer the same in the light of the contentions

raised as well as with reference to the documents filed in

support of the same it would be appropriate for us to notice

the order of this Court dated 30th September, 1997 and its

effect on the ultimate decision of the suit itself

On 30th of September, 1997, this Court passed the

following Order:

Sh. F.S. Nariman, learned Senior counsel for the

State of Karnataka-defendant No. 1 and Sh. T.R.

Andhyarjuna, learned Solicitor General appearing for the

State of Maharashtra- defendant No. 3 referred to the

prayer (a) (at page 72 of the Paper book) and submits that

both these States namely, Karnataka and Maharashtra accept

this claim of the plaint of the State of Andhra Pradesh and

agree to the grant of relief in the suit in terms of prayer

in clause (a) as under: (a) declare that the

report/decision dated 24.12.1973 and the further

report/decision dated 27.5.1976 of the Krishna Waters

Dispute Tribunal (KWDT) in their entirety are binding upon

the three riparian States of Maharashtra, Karnataka and

Andhra Pradesh and also the Union of India. In other words,

there is no controversy in the Suit between the plaintiff

and Defendants 1 and 3 i.e. Andhra Pradesh, Karnataka and

Maharashtra and that the report/decision dated 24.12.1973

and the further report/decision dated 27.5.1976 of the

Krishna Water Disputes Tribunal (KWDT) in their entirety are

binding upon the three riparian States of Maharashtra,

Karnataka and Andhra Pradesh. There is thus no controversy

between the three riparian States to this extent. The

learned Attorney General appearing for the Union of India

submits that he is unable to make any statement today in

this behalf as he has to seek instructions in the matter.

This statement made by the learned counsel for the three

riparian States is placed on record to indicate that a

partial decree to this extent on the basis of admission of

the defendants (1 and 3, Karnataka and Maharashtra) can be

passed and therefore, there is no need to frame any issue to

cover this aspect of the Suit.

In course of hearing of the suit arguments had been

advanced on behalf of the State of Karnataka by Mr. Nariman

that the aforesaid partial decree in terms of prayer a of

OS No. 2 of 1997 unequivocally indicates that the entire

report i.e. 24.12.1973 and the further report dated

27.5.1976 in entirety must be held to be binding upon three

riparian States, and that being the position, there is no

logic on the part of the State of Andhra Pradesh to resist

the prayer of Plaintiff No. 1 in OS No. 1 of 1997 to make

Scheme B binding on parties which Scheme obviously form a

part of the report and the further report. Mr. Ganguli,

learned senior counsel appearing for the State of Andhra

Pradesh on the other hand contended, that a prayer made by

the plaintiff has to be understood in the context of the

averments made in the plaint itself and not bereft of the

same. According to Mr. Ganguli prayer a in the case in

hand, if read in the light of the averments made in the

plaint itself it would only mean that the plaintiff State

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having averred in the plaint that the Tribunal had made

projectwise allocation which should be read into the final

decision of the Tribunal which has been notified in the

Official Gazette by the Government of India and, therefore,

the State of Karnataka is not entitled to raise the height

of the Dam at Almatti to 524.256 meters whereby it would be

able to store more than 200 TMC of water with the

utilisation capacity of about 400 TMC. It is in this

context Mr. Ganguli placed before us paragraphs 3.1, 3.2

and 3.3 of the written statement to indicate to us as to how

the said defendant understood the prayer a in the plaint.

Mr. Ganguli ultimately urged that the final order of the

Tribunal can be equated with a decree in a civil suit and

decree must be consistent with the judgment and, therefore,

applying the said analogy the final order requires to be

read in the light of the adjudication made by the Tribunal

in the final report. The learned counsel placed reliance on

the following decisions in support of the aforesaid

contentions:-

(i) Kalikrishna Tagore vs. The Secretary of State

LR 15 Indian Appeals 186 at 192.3 (ii) Law Report 25 Indian

Appeals at 107-08 (iii) 1913 Vol. 25 Madras Law Journal 24.

At the outset we are unable to accept the contention

of Mr. Ganguli that the decision of the Tribunal which is

ultimately notified under Section 6 of the Act can be held

to be a decree of a suit and the report being the judgment

and, therefore, the decided case laws on which reliance has

been placed has no application at all. The inter-State

Water Disputes Act having been framed by the Parliament

under Article 262 of the Constitution is a complete Act by

itself and the nature and character of a decision made

thereunder has to be understood in the light of the

provisions of the very Act itself. A dispute or difference

between two or more State Governments having arisen which is

a water dispute under Section 2(C) of the Act and complaint

to that effect being made to the Union Government under

Section 3 of the said Act the Central Government constitutes

a Water Disputes Tribunal for the adjudication of the

dispute in question, once it forms the opinion that the

dispute cannot be settled by negotiations. The Tribunal

thus constituted, is required to investigate the matters

referred to it and then forward to the Central Government a

report setting out the facts as found by him and giving its

decision on it as provided under Sub-Section (2) of Section

5 of the Act. On consideration of such decision of the

Tribunal if the Central Government or any State Government

is of the opinion that the decision in question requires

explanation or that guidance is needed upon any point not

originally referred to the Tribunal then within three months

from the date of the decision, reference can be made to the

Tribunal for further consideration and the said Tribunal

then forwards to the Central Government a further report

giving such explanation or guidance as it deems fit.

Thereby the original decision of the Tribunal is modified to

the extent indicated in the further decision as provided

under Section 5(3) of the Act. Under Section 6 of the Act

the Central Government is duty bound to publish the decision

of the Tribunal in the Official Gazette whereafter the said

decision becomes final and binding on the parties to the

dispute and has to be given effect to, by them. The

language of the provisions of Section 6 is clear and

unambiguous and unequivocally indicates that it is only the

decision of the Tribunal which is required to be published

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in the Official Gazette and on such publication that

decision becomes final and binding on the parties. It is

not required that the report containing the arguments or

basis for the ultimate decision is also required to be

notified so as to make that binding on the parties. This

being the position, it is difficult to appreciate the

contention of Mr. Ganguli that the decision of the Tribunal

as notified, is in fact a decree of a civil suit and that

decree has to be understood in the light of the judgment of

the suit. We accordingly are not persuaded to accept the

submission of Mr. Ganguli on this point but, at the same

time we cannot accept the argument of Mr. Nariman that the

order of this Court dated 30th September, 1997 passed in the

suit in terms of prayer a must be held to mean that a

decree is to be drawn up in OS 2 of 1997 making the entire

report and the further report binding on the parties. When

a prayer is made in the plaint the said prayer has to be

understood in the light of the assertion of facts on which

the prayer has been made. The defendant State of Karnataka

understood the prayer on that basis as would appear from the

averments made in the written statement of defendant no. 1

in paragraphs 3.1, 3.2 and 3.3. The aforesaid prayer had

been made for the relief that notwithstanding enbloc

allocation made in the final order of the Tribunal which is

the decision of the Tribunal but the very basis to arrive at

that decision being the projectwise allocation contained in

the report the said projectwise allocation must be read into

the enbloc allocation and, therefore, there must be

restriction on the part of the State of Karnataka not to use

more water in Upper Krishna Project than the allocated

quantity of 160 TMC. Thus read the order of this Court

dated 30th September, 1997, cannot be construed to mean that

a decree has to be passed making the entire report as well

as the further report of the Tribunal binding on the

parties. So far as the question whether allocation made

enbloc or projectwise the same has been answered while

discussing issues nos. 1, 3 and 5 and in this view of the

matter the earlier order dated 30th September, 1997 is of no

consequence in disposing of the suit in question.

ISSUE Nos. 1, 3 and 5: Though, there are as many as

22 issues, which have been framed and necessarily to be

answered in the suit, but in course of arguments advanced by

Mr. Ganguli, the learned senior counsel, appearing for the

State of Andhra Pradesh, the entire emphasis was on the

height of Almatti Dam Stage-II at 524.256 meters, as

proposed by the State of Karnataka and as it appears from

various project reports. In view of the arguments advanced

by the counsel for the parties, these three issues

essentially form the bone of contention. It is necessary to

be stated that too many issues have been framed by the three

different States and Court has also permitted such issues to

be struck and most of the issues over-lap one another and in

fact have no bearing in relation to the prayer made by the

plaintiff. But instead of re-framing the issues, arguments

having been advanced by the counsel for the parties, we

would deal with each of them, but with specific emphasis on

the vital issues. So far as the three issues with which we

are concerned at the moment, when read with the paragraphs

of the plaint, dealing with the same, it appears that the

plaintiff Andhra Pradesh has made out a case in the plaint

that under Scheme A which is the decision of the tribunal

and which has been notified by the Central Government under

Section 6 of the Inter-State Water Disputes Act, though

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there has been allocation of water enbloc but on going

through the report itself and the very basis on which the

mass allocation has been quantified, it would indicate that

project-wise allocation must be read into the so-called mass

allocation. This being the position, in Upper Krishna

Project, the tribunal having allocated only 160 TMC of

water, construction of Almatti Dam to a height of 524.256

meters itself constitutes an infraction of the decision of

the tribunal, and, therefore, the Court should injunct the

State of Karnataka from constructing a dam at Almatti up to

the height of 524.256 meters. The stand of the State of

Karnataka in the written statement filed as well as the

stand of Union Government and State of Maharashtra in its

original written statement filed however is that, there has

been an enbloc allocation by the tribunal and consequently,

there has been no fetter on any State to utilise water up to

a limited quantity in any of its project, except those

mentioned in the order of the tribunal itself and that being

the position, the plaintiff would not be entitled to an

order of injunction in relation to the construction of

Almatti Dam to a height of 524.256 meters. Before we focus

our attention to the evidence on record in answering these

three issues, in the light of arguments advanced by the

counsel for the parties, it must be borne in mind that

injunction being a discretionary remedy, a Court may not

grant an order of injunction, even if all the three

necessary ingredients are established and those ingredients

are prima facie case of infraction of legal rights, such

infraction causes irreparable loss and injury to the

plaintiff and the injury is of such nature that it cannot be

compensated by way of damages. In the case in hand, when

the plaintiff has prayed for an order of mandatory

injunction to injunct the State of Karnataka from

constructing the dam at Almatti to a height of 524.256

meters and makes out a case of infringement of legal rights

of the State of Andhra Pradesh, flowing from the decision of

the Krishna Water Disputes Tribunal, which decision has

become final and binding on being notified by the Union

Government under Section 6, what is required to be

established is that in fact in the said decision of the

tribunal, there has been a project-wise allocation in

respect of Upper Krishna Project and if this is established,

then the further fact required to be established is whether

by construction of Almatti Dam up to a height of 524.256

meters, there has been any infraction of the said decision

of the tribunal which has caused irreparable injury and

damage to the lower riparian State of Andhra Pradesh and the

said damage cannot be compensated by way of damages. Since

the plaintiff-State has to establish all the aforesaid

requirements, so that an order of injunction, as prayed for,

can be granted, let us examine the very first ingredient

namely whether under the decision of the tribunal, there has

at all been a project-wise allocation as contended by Mr.

Ganguli, appearing for the State of Andhra Pradesh or the

allocation was enbloc, as contended by Mr. Nariman,

appearing for the State of Karnataka and reiterated by Mr.

Salve, the learned Solicitor General and Mr. Andhyarujina,

appearing for the State of Maharashtra. While deciding the

Original Suit No. 1 of 1997, filed by the State of

Karnataka, negativing the contention of the said State to

the effect that Scheme B evolved by the tribunal, whether

forms a decision of the tribunal or not, we have already

recorded the finding that Scheme B cannot be held to be

the decision of the tribunal inasmuch as it is only that

order of the tribunal which conclusively decides the dispute

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referred to, and is capable of being implemented on its own,

can be held to be a decision of the tribunal under Section

5(2) of the Act. In fact the plaintiff in the present suit

also bases its case on the Scheme A and contends that

there has been an infraction of the said Scheme A by the

defendant-State of Karnataka. If we examine the Final Order

of the tribunal contained in Chapter XVI of the Original

Report Exhibit PK1 as well as the modified order after

answering the application for clarifications made by

different States, in the Further Report of December, 1976 in

Chapter VII of Exh. PK2, which has been notified by the

Central Government under Section 6 of the Act in the Gazette

of India dated 31st of May, 1976, it is crystal clear that

the allocation made, has been enbloc and not project-wise

and, therefore, there is no fetter on any of the States in

utilising water in any project to a limited extent,

excepting those contained in Clause (IX) of the decision.

The allocation made to the three States of Maharashtra,

Karnataka and Andhra Pradesh for their beneficial use has

been provided in Clause (V) and subject to such conditions

and restrictions as are mentioned in the subsequent clauses.

Clause (V) of the decision which in fact makes the

allocation, may be quoted herein below in extenso:

Clause V (A) The State of Maharashtra shall not use

in any water year more than the quantity of water of the

river Krishna specified hereunder:- (i) as from the water

year commencing on the 1st June next after the date of the

publication of the decision of the Tribunal in the Official

Gazette upto the water year 1982-83 560 TMC. (ii) as from

the water year 1983-84 up to the water year 1989-90 560 TMC

plus a quantity of water equivalent to 10 per cent of the

excess of the average of the annual utilisations for

irrigation in the Krishna river basin during the water years

1975-76, 1976-77 and 1977-78 from its own projects using 3

TMC or more annually over the utilisations for such

irrigation in the water year 1968-69 from such projects.

(iii) as from the water year 1990-91 up to the water year

1997-98 560 TMC plus a quantity of water equivalent to 10

per cent of the excess of the average of the annual

utilisations for irrigation in the Krishna river basin

during the water years 1982-83, 1983-84 and 1984-85 from its

own projects using 3 TMC or more annually over the

utilisations for such irrigation in the water year 1968-69

from such projects. (iv) as from the water year 1998-99

onwards 560 TMC plus a quantity of water equivalent to 10

per cent of the excess of the average of the annual

utilisations for irrigation in the Krishna river basin

during the water years 1990-91, 1991-92 and 1992-93 from its

own projects using 3 TMC or more annually over the

utilisations for such irrigation in the water year 1968-69

from such projects. (B) The State of Karanataka shall not

use in any water year more than the quantity of water of the

river Krishna specified hereunder:- (i) as from the water

year commencing on the 1st June next after the date of the

publication of the decision of the Tribunal in the Official

Gazette up to the water year 1982-83 700 TMC (ii) as from

the water year 1983-84 up to the water year 1989-90 700 TMC

plus a quantity of water equivalent to 10 per cent of the

excess of the average of the annual utilisations for

irrigation in the Krishna river basin during the water years

1975-76, 1976-77 and 1977-78 from its own projects using 3

TMC or more annually over the utilisations for such

irrigation in the water year 1968-69 from such projects.

(iii) as from the water year 1990-91 up to the water year

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1997-98 700 TMC plus a quantity of water equivalent to 10

per cent of the excess of the average of the annual

utilisations for irrigation in the Krishna river basin

during the water years 1982-83, 1983-84 and 1984-85 from its

own projects using 3 TMC or more annually over the

utilisations for such irrigation in the water year 1968-69

from such projects. (iv)as from the water year 1998-99

onwards 700 TMC plus a quantity of water equivalent to 10

per cent of the excess of the average of the annual

utilisations for irrigation in the Krishna river basin

during the water years 1990-91, 1991-92 and 1992-93 from its

own projects using 3 TMC or more annually over the

utilisations for such irrigation in the water year 1968-69

from such projects. (C) The State of Andhra Pradesh will be

at liberty to use in any water year the remaining water that

may be flowing in the river Krishna but thereby it shall not

acquire any right whatsoever to use in any water year nor be

deemed to have been allocated in any water year water of the

river Krishna in excess of the quantity specified

hereunder:- (i) as from the water year commencing on the 1st

June next after the date of the publication of the decision

of the Tribunal in the Official Gazette up to the water year

1982-83. 800 TMC (ii) as from the water year 1983-84 up to

the water year 1989-90. 800 TMC plus a quantity of water

equivalent to 10 per cent of the excess of the average of

the annual utilisations for irrigation in the Krishna river

basin during the water years 1990-91, 1991-92 and 1992-93

from its own projects using 3 TMC or more annually over the

utilisations for such irrigation in the water year 1968-69

from such projects. (iii) as from the water year 1990-91 up

to the water year 1997-98 800 TMC plus a quantity of water

equivalent to 10 per cent of the excess of the average of

the annual utilisations for irrigation in the Krishna river

basin during the water years 1982-83, 1983-84 and 1984-85

from its own projects using 3 TMC or more annually over the

utilisations for such irrigation in the water year 1968-69

from such projects. (iv) as from the water year 1998-99

onwards 800 TMC plus a quantity of water equivalent to 10

per cent of the excess of the average of the annual

utilisations for irrigation in the Krishna river basin

during the water years 1990-91, 1991-92 and 1992-93 from its

own projects using 3 TMC or more annually over the

utilisations for such irrigation in the water year 1968-69

from such projects. (D) For the limited purpose of this

Clause, it is declared that :- (i) the utilisations for

irrigation in the Krishna river basin in the water year

1968-69 from projects using 3 TMC or more annually were as

follows:- From projects of the State of Maharashtra- 61.45

TMC From projects of the State of Karnataka- 176.05 TMC From

projects of the State of Andhra Pradesh- 170.00 TMC (ii)

annual utilisations for irrigation in the Krishna river

basin in each water year after this Order comes into

operation from the project of any State using 3 TMC or more

annually shall be computed on the basis of the records

prepared and maintained by that State under Clause XIII.

(iii) evaporation losses from reservoirs of projects using 3

TMC or more annually shall be excluded in computing the 10

per cent figure of the average annual utilisations mentioned

in sub-Clauses A(ii), A(iii), A(iv), B(ii), B(iii), B(iv),

C(ii), C(iii) and C(iv) of this clause.

The aforesaid Clause V, no doubt is in a negative

form, prohibiting the State of Maharashtra and State of

Karnataka from using in any water year more than the water

that has been allotted in their favour respectively but by

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no stretch of imagination, any restriction can be said to

have been put on any of the States in the aforesaid Clause

V, so long as they do not use more than the quantity

allotted in their favour in any water year. In other words

under Clause V of the decision, the State of Maharashtra is

entitled to use up to 560 TMC in any water year and the

State of Karnataka similarly is entitled to use up to 700

TMC in any water year. The language used by the tribunal in

formulating Clause V of the decision is clear and

unambiguous and as such it is difficult for the Court to

read into it any restrictions as submitted by the learned

senior counsel, appearing for the State of Andhra Pradesh.

We may mention at this stage, that the original report and

the decision of 1973 was marked as Exhibit PK-1 in OS 1/97

and the further repot and the decision of 1976 was marked as

Exhibit PK-2 in OS 1/97, and those two documents having been

referred to by the parties in course of arguments as PK- 1

and PK-2. We have also in judgment referred as PK-1 and

PK-2 which were exhibited as such in OS 1/97.

Mr. Ganguli, the learned senior counsel however

contended before us that before the tribunal, each of the

three riparian States claimed water for their various

projects, covering utilisation to the order of 4269.33 TMC,

as is apparent from Exhibit PKI itself and then at a

subsequent stage of the proceedings before the tribunal, all

the party States agreed that 75% dependable flow up to

Vijayawada in the river Krishna is 2060 TMC, which is,

therefore much less than the total demand made by each of

the States, amounting to 4269.33 TMC. The learned counsel

further urged that all the three States entered into an

agreement on 7.5.1971, indicating therein that 20 of the

projects in Maharashtra, 13 projects in Karnataka and 17

projects in Andhra Pradesh should be protected and the

parties also agreed to the specified quantity of utilisation

of water in respect of each of the projects which could be

treated as protected utilisation and total of such protected

utilisation came to 751.20 TMC, as is apparent from the

Original Report Exhibit PKI. It is the further contention

that since in respect of one project in Maharashtra, five

projects in Karnataka and five projects in Andhra Pradesh,

the parties could not agree to the quantity of utilisation

which should be protected and all the States invited the

tribunal to decide the extent of utilisation to be protected

in respect of those 11 projects and the tribunal adjudicated

the additional utilisation to the extent of 714.91 TMC in

respect of 9 out of the 11 projects and thus the total

protected utilisation out of the dependable flow at 75%

dependability worked out at 1693.36 TMC , which of course

includes 227.25 TMC on minor irrigations. Having thus

arrived at the figure of 1693.36 TMC for protected

utilisation, the balance quantity out of the dependable flow

to the extent of 366.64 TMC was further distributed by the

tribunal to the extent of 50.84 TMC to Andhra Pradesh for

Srisailam reservoir and Jurala Project. Out of the

remaining 315.80 TMC, taking into consideration all germane

factors, the tribunal allocated 125.35 TMC to Maharashtra

and 190.45 TMC to Karnataka. Mr. Ganguli contends that

while making these allocations, so far as Upper Krishna

Project in the State of Karnataka is concerned, the tribunal

merely permitted utilisation of only 52 TMC in the Right

Bank Canal of Narayanpur in addition to the protected

utilisation of 103 TMC already granted in respect of the

Left Bank Canal under the Narayanpur Canal and, therefore,

the total worked out at 155 TMC and there had been no

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allocation made by the tribunal so far as Almatti Dam is

concerned. At a later stage when in its Further Report

Exhibit PK2, the tribunal allocated additional 5 TMC for

utilisation under Hippargi Project, the conclusion is

irresistible that in Upper Krishna Projects in Hippargi,

Almatti and Narayanpur, a total quantity of 160 TMC was

allocated and this must be read into the Final Order in

Clause (V), though not specifically mentioned therein. It

is in this connection, Mr. Ganguli took us through the

different pages of Exhibit PKI as well as the plaint and the

written statement of the State of Karnataka. But as has

been stated earlier, if the decision of the tribunal is its

Final Order, as notified by the Central Government in

exercise of power under Section 6 of the Act, we really fail

to understand, how the aforesaid limitations can be read

into the said decision, particularly, when Clause (V) of the

decision is clear and there is no ambiguity in the same. It

is undoubtedly true that while considering the question of

extent of allocation of water in favour of the three

riparian States out of 2060 TMC of water at 75%

dependability, the tribunal did take into account the

different projects already undertaken by different States

but consideration of those projects is only for the purpose

of arriving at the quantity of water to be allocated and not

for making any project-wise allocation, as contended by Mr.

Ganguli. In Exhibit PKI itself, the tribunal records to the

following effect : Our examination of the project reports

and other relevant documents has a very limited purpose and

it is to determine what are the reasonable needs of the two

States so that an equitable way may be found out for

distributing the remaining water between the two States. It

is of course, always to be borne in mind that the allocation

of waters though based on consideration of certain projects

being found to be worth consideration are not on that

account to be restricted and confined to those projects

alone. Indeed the States (and this applies to all the

States) would be entitled to use the waters for irrigation

in such manner as they find proper subject always to the

restrictions and conditions which are placed on them.

This unequivocally indicates the purpose for which the

projects of different States were being examined and it is

explicitly made clear that the States should be entitled to

use the waters for irrigation in such manner as they find

proper, subject, always to the restrictions and conditions

which are placed on them. Unless, therefore, any

restriction or conditions in the decision of the tribunal

can be found out for utilisation of a specific quantity of

water out of the total allocated share in the Upper Krishna

Project, there cannot be any fetter on the part of the State

of Karnataka to make such user. In the decision of the

tribunal, there does not appear to be an iota of

restrictions or conditions, which even can be inferred and,

therefore, the submission of Mr. Ganguli, appearing for the

State of Andhra Pradesh on this score cannot be accepted.

In the report of the Krishna Water Disputes Tribunal

Exhibit PK-1 for the purpose of allocation of water in the

Krishna Basin the Tribunal has examined each project of each

of the three States and then recorded its conclusion as to

whether the project is worth consideration. The Tribunal

expressed the meaning of the expression worth

consideration by saying that the expression is used in the

sense that it means the requirements of an area in the State

concerned. It would be appropriate at this stage to quote

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the exact findings of the Tribunal in this regard:-

In saying that the project is worth consideration we

do not wish to be understood to say that the project, if

feasible, should be adopted. Likewise when we say that the

project is not worth consideration we do not say that no

water should ever be allowed for it. If at some future date

more water becomes available it is possible that more

projects may come upto the worth consideration standard. In

assessing whether the project is worth consideration or not

we have taken into account the physical characteristics of

the area like rainfall etc., the catchment area, the

commanded area, the ayacut of the project, the fact whether

the project is meant for irrigating the scarcity area or not

and such other facts. In other words we determine on

pragmatic considerations what needs of the States of

Maharashtra and Mysore can be satisfied so that an equitable

way may be found out for distributing the balance of the

dependable flows between the two States. It should not be

taken our observations relating to the projects which we

have noted as worth consideration are to be accepted in any

way as final and binding by the Planning Commission or any

other authority.

The aforesaid finding fully negatives the contention

of Mr. Ganguli, appearing for the State of A.P., that the

allocation was projectwise which can be read into the final

order. Clause IX of the final order has placed restriction

on the use of water in the Krishna Basin by the three

States. The reasons for putting such restrictions appears

to be that on the main stream there has been only

restriction on river Bhima whereas on the side streams there

has been restriction in case of Tungbhadra and Vedavathi

sub-basin. Even in case of sub-basin K-3 there has been

restriction on the State of Maharashtra from using more than

7 TMC in any water year from Ghataprabha and the reason for

such restriction is that the requirements of the State of

Mysore for the projects in that sub-basin may suffer.

Similarly restriction has been placed on the State of Andhra

Pradesh not to use more than 6 TMC from the catchment of the

river Koyna, the idea being that the waters of that river

would reach the main streams of river Bhima. Even while

placing such restriction the Tribunal has placed the upper

limit slightly above the total requirements of that State as

assessed from the demands made which had been either

protected or which have held as worth consideration. The

very fact that restrictions have been put by the Tribunal in

several sub-basins and no restriction has been put so far as

sub-basin K-2 wherein Upper Krishna Project of the State of

Karnataka is being carried on clinches the point raised by

the State of Andhra Pradesh and discussed in these three

issues, namely, it is not possible to read any restriction

for quantity of user of water in Upper Krishna Project by

the State of Karnataka and so long as the total user does

not exceed mass allocation, it cannot be said that the

decision of the Tribunal is being violated infringing the

rights of the State of Andhra Pradesh which can be

prohibited by issuing any mandatory injunction. After

receiving the copy of the report and the decision of the

Tribunal under Exhibit PK-1 the State of Andhra Pradesh

filed application for clarification, being clarification

No.4 under Section 5(3) of the Act, requesting reduction of

1.865 TMC from the Koyna Project of State of Maharashtra.

Having filed such application on 5th March, 1976, the

learned Advocate General of the State of Andhra Pradesh did

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not press the said clarification No.4 on the ground that the

allocations are enbloc which is apparent from Exhibit PK-2

dealing with clarification no.4. Having made an unequivocal

statement before the Tribunal itself that the allocations

are enbloc we fail to understand how the State of Andhra

Pradesh has filed the suit making out a case that there has

been any project-wise allocation by the Krishna Water

Disputes Tribunal. The aforesaid statement of the learned

Advocate General made before the Tribunal has not been

explained either in the plaint filed by the State nor even

in course of hearing of the suit, and in our view, the State

of Andhra Pradesh also fully understood that the allocations

made under Scheme A was enbloc. It further appears from

Exhibit PK-2 that the State of Andhra Pradesh did file a

clarification no. 5 under Section 5(3) of the Act praying

that the maximum quantity which could be utilised in K-5 and

K- 6 sub-basin of the State of Maharashtra and Karnataka

should be specified and ultimately on 23rd August, 1974, the

learned Advocate General for the said State did not press

the clarification as it had no materials on record on which

he could substantiate it. The very fact that State had not

filed any clarification application so far as K-2 sub-basin

is concerned, though it did file such application in respect

of sub-basin K-5 and K-6 as well as in case of Quana Krishna

Lift Irrigation Scheme unequivocally indicates that the

State had no grievance so far as the allocation enbloc made

by the Tribunal and not putting any restriction of the user

in K-2 sub-basin which consists of the Upper Krishna

Project. This in our view, fully clinches the matter and

the conclusion is irresistible that under the decision of

the Tribunal there has been mass allocation and no

project-wise allocation as contended by the State of Andhra

Pradesh in the suit. In the aforesaid premises, we answer

the three issues against the plaintiff and in favour of the

defendants and hold that under the decision of the Tribunal

the allocation of water in river Krishna was enbloc and not

project-wise excepting those specific projects mentioned in

clauses IX and X of the decision.

ISSUE NO.2

Though this issue has been raised at the behest of the

State of Maharashtra but in view of the stand taken by the

said State in the additional written statement and the

additional issues framed thereon, the learned counsel

appearing for the State of Maharashtra did not argue the

question of jurisdiction, and on the other hand contended,

that the jurisdiction of this Court in a suit under Article

131 of the Constitution should not be restricted or narrowed

down and on the other hand the Court should be capable of

granting all necessary reliefs in adjudicating the dispute

raised. That apart on the basis on which the plaintiff

State filed the suit and the relief sought for it cannot be

said that the suit is not maintainable. We, therefore,

answer this issue in favour of the plaintiff.

ISSUE NOS. 4, 6, 7 and 8

These four issues are inter-linked and have been

framed in view of the positive stand taken by the State of

Andhra Pradesh that in case of an inter State river when any

project of one State is considered by the Government of

India or any other appropriate authority the other State

should also be made aware of and their consent should also

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be taken. Though this stand had been taken by the

plaintiff-State of Andhra Pradesh but all the three

defendants refuted the same. In course of hearing of the

suit the learned counsel Mr. Ganguli has not placed before

us any material or any law which compels the concerned

authority to consult all the riparian States before

sanctioning a project of one State. In the absence of any

legal basis for such stand we are not able to agree with the

stand taken by the State of Andhra Pradesh that the Central

Government was duty bound to take the consent of other

States while sanctioning any project of any of the riparian

States. That apart, these issues are academic in the

context of the Upper Krishna Project of the State of

Karnataka and,in particular, the construction of the Almatti

Dam. Before the Tribunal the State of Karnataka had

submitted the report of Upper Krishna Project of July 1970

which was exhibited before the Tribunal as MYPK-3 and the

said document has been marked as Exhibit PAP-42 in the

present suit. The salient features of the said project, so

far as Almatti Dam height is concerned, was shown as FRL

524.256 m and top of the Dam at 528.786 m. The entire

project itself being there before the Tribunal, though the

Tribunal did not consider it necessary to discuss the

project in particular in view of enbloc allocation made by

it, the grievance of the State of Andhra Pradesh that the

project was being surreptitiously constructed is devoid of

any substance. We, therefore, answer the aforesaid issues

against the plaintiff.

ISSUE NO. 9 (a) (b)

This issue is an important issue in the present suit

and the relief sought for essentially depends upon the

findings arrived at on this issue. The entire issue has to

be decided on the basis as to whether there exists any

prohibition in the decision of the Tribunal from

constructing Dam at Almatti upto 524.256 meter or from

storing any particular quantity of water therein. And if

the answer is in the negative then the prayer for injuncting

the State of Karnataka to raise the Dam height upto 524.256

has to be rejected. If the decision of the Tribunal is

examined from the aforesaid stand point and in view of our

conclusion that it is that final order which has been

notified in the Official Gazette by the Central Government

under Section 6 of the Act which is the decision of the

Tribunal, we find nothing stated therein which even can be

held to be a prohibition or restriction on the power of the

State of Karnataka to have the height of Dam upto a

particular height. In this view of the matter the

plaintiffs prayer to injunct the State of Karnataka from

constructing the Dam height at Almatti upto 524.256 meter

cannot be granted. The issue has two sub-issues ;

Sub-issue a relates to the height of Almatti Dam ;and

sub-issue b being on the question whether State of

Karnataka could be permitted to proceed with the

construction without the consent of the other riparian

States and without the approval of the Central Government?

At the outset it may be stated that though the State of

Karnataka had produced its project report relating to the

construction of the Almatti Dam as per Exhibit PAP-42 but

neither the Tribunal had considered the same nor any

decision has been arrived at on the question of height of

the said Dam. Even after the original report and the

decision being made known under Section 5(2) of the Act as

per Exhibit PK-1 the State of Andhra Pradesh also did not

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raise any dispute or clarificatory application objecting to

the construction of the Almatti Dam or even to the height of

such Dam under Section 5(3) of the Act. In the absence of a

decision of the Tribunal on the question of construction of

Dam at Almatti or its height and mass allocation made, being

binding upon all parties after being notified under Section

6 of the Act, the grievance relating to the construction of

Dam at Almatti or to its height would be a matter of water

dispute within the meaning of Section 2(C), in as much as it

would be a matter concerning use of water of river Krishna

and, therefore, cannot be a matter for adjudication in a

suit under Article 131 of the Constitution of India. If the

complaint of the State of Andhra Pradesh is that by

construction of Almatti Dam which is an executive action of

the State of Karnataka the State of Andhra Pradesh is likely

to be prejudicially affected then also on such complaint

being made to the Union Government under Section 3(a) the

matter could be referred to a Tribunal for adjudication.

But, we fail to understand how this Court could entertain

the aforesaid lis and decide the same, particularly when the

Tribunal has not focussed its attention on the same nor has

made any adjudication in respect to the construction of Dam

at Almatti or its height. Needless to mention that

notwithstanding the allocation of water in river Krishna

being made enbloc no State can construct any project for use

of water within the State unless such project is approved by

the Planning Commission, the Central Water Commission and

all other Competent Authorities who might have different

roles to play under different specific statutes. Under the

federal structure, like ours, the Central Government

possesses enormous power and authority and no State can on

its own carry on the affairs within its territory,

particulary when such projects may have adverse effect on

other States, particularly in respect of an inter State

river where each riparian State and its inhabitants through

which the river flows has its right. From the averments

made in the plaint it is crystal clear that the State of

Andhra Pradesh feels aggrieved by the proposal of the State

of Karnataka to have the Dam height at Almatti FRL 524.256

m. In the plaint itself in paragraph 51 the plaintiff has

referred to the observation of the Committee to the effect:

For required utilisation of 173 TMC at UKP the height of

the Dam at FRL 519.6 m would be adequate. The Committee

referred to in the said paragraph is Expert Committee which

the four Chief Ministers had appointed, which Committee had

examined the pros and cons of the Almatti Dam and the

aforesaid views of the Expert Committee was approved by the

four Chief Ministers who had been requested by the Prime

Minister of India to intervene and find out the efficacy or

otherwise of the stand of Karnataka to have Almatti Dam upto

the height of FRL 524.256 m. The said Expert Committee had

observed that the proposal of the State of Karnataka of

having Upper Krishna Project with FRL 524.256 m in Stage II

at Almatti has not been approved by the Government of India.

And it has been further observed that it would be desirable

to proceed with utmost caution in the larger interest of the

Nation to wait and watch operation of various Krishna system

upstream and down stream before embarking on creating larger

storage at Almatti Dam than what is needed to suit the

prevailing conditions. We are taking note of the

observations made by the Expert Committee for the purpose

that the plaintiff having failed to establish its case for

getting an injuction, would it be appropriate for this Court

to allow the State of Karnataka to have the height of the

Dam at Almatti at 524.256 m or it would be obviously in the

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larger interest of the country and all the States concerned

to allow the Dam upto the height of 519.6 m and then leave

it open to the States concerned to put forth their

grievances before the Tribunal to be appointed by the

Central Government for resolving the disputes relating to

sharing of water in river Krishna. Reading the plaint as a

whole it appears to us that the plaintiff State had not made

any grievance for having a Dam at Almatti upto a height of

FRL 519.6 m and on the other hand, the entire grievance

centers round the proposal of the State of Karnataka to have

the height at 524.256 m. The report of the Expert Committee

referred to in the plaint has been exhibited as Exhibit

PAP-212 and even that report indicates that the complaint of

Andhra Pradesh was that the height of Almatti Dam at FRL

524.256m which has not been approved as yet by the

Government of India, would adversely affect the lower

riparian State of Andhra Pradesh both in the matter of

irrigation as well as generation of power. The said report

further reveals that the State of Karnataka is desirous of

having the Dam height at FRL 524.256 m so that it can store

its share of water available to it under Scheme B when it

comes. It is only on fructification of Scheme B the need

for a larger storage at Almatti would arise, and therefore,

the State is planning ahead to have the height of the Dam at

524.256m. According to the report of the said Expert

Committee even if the height is allowed not upto 524.256 m

it can be allowed later only when the necessity arises and

technically it is feasible. The report also records that

for utilisation of 173 TMC at Almatti and Narainpur the

height of the Dam required would be 519 m and not 524.256 m.

Thus an expert body appointed by the four Chief Ministers of

4 different States who are not in any way connected with the

inter-State river Krishna taking into account the present

need envisaged by the State of Karnataka for utilisation of

173 TMC at Upper Krishna project and taking into account the

report submitted by Indian Institute of Science at Bangalore

did record a finding that the top of the shutters at Almatti

should be fixed at 519.6 m which will provide a storage of

about 173TMC which along with storage of 37.8 TMC at

Narainpur will be adequate to take care of annual

requirement of 173 TMC envisaged under Upper Krishna

Project. In view of our conclusion in O.S. 1 of 1997

holding that Scheme B is not a decision of the Tribunal,

and as such, cannot be implemented by a mandatory order from

this Court and the stand of the State of Karnataka before

the so called Expert Committee being that they have designed

the height of Almatti Dam at 524.256 m keeping in view that

in the event Scheme B fructifies the State will be able to

get the surplus water and store it as a carry over

reservoir, as observed by the Tribunal itself,

notwithstanding the fact that the plaintiff has failed to

establish a case on its own for getting the relief of

injunction in relation to the construction of Almatti Dam by

the State of Karnataka, it would be reasonable to hold that

though the State can have the Dam at Almatti but the height

of the said Dam should not be more than 519.6 m,

particularly when the State of Karnataka has not been able

to indicate as what is the necessity of having a height of

Dam at 524.256 m when Scheme B is not going to be operated

upon immediately. The Upper Krishna Project Stage II,

detailed project report of October 1993 which has been

exhibited in the present case as PAP 45 also indicates that

minimum FRL required to get 173 TMC utilisation is found to

be 518.7 m. It is in that report it has been indicated that

it is because of probable maximum flood of 31000 qmx., the

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water level is expected to go upto 521 m and, therefore, the

proposal is to keep the height of the gate to 521 from the

crest level with 2 mts. as the gate height. It may be

stated at this stage that the height of the Almatti as

approved by the Competent Authority is crest level 509 meter

and it is in this context to have the height at FRL 524.256

m the State of Karnataka has proposed to have the gate

height of 15 meters. But as has been indicated earlier,

since the entire basis of the State of Karnataka to have the

height of the Dam at 524.256 m is contingent upon

implementation of Scheme B of the Tribunal thereby

entitling the State of Karnataka to get its share in excess

water and continue the Almatti Dam as a carry over reservoir

and since we have decided against the State of Karnataka in

O.S. 1 of 1997 which the State had filed for implementation

of Scheme B, there is absolutely no justification for the

said State to have the Dam height at Almatti of 524.256 m.

We hasten to add that at the same time there cannot be any

injunction or prohibition to the said State of Karnataka for

having the Dam height at Almatti upto 519.6m which would be

in the interest of all concerned.

Mr. Ganguli, the learned senior counsel, appearing

for the State of Andhra Pradesh submitted that the State of

Karnataka in the Project Report filed before the Central

Water Commission in respect of UKP Stage II, itself

indicated that the minimum FRL required at Almatti Reservoir

is 519.60 M as per Exhibit PAP 46. In the written statement

also, the State of Karnataka also indicated that

contemplated height of Dam at 524.256 meters is for

additional storage, though for the purpose of generation of

power which is non-consumptive use and at a height of

524.256 meters, it would utilise 302 TMC, which would be in

excess of the enbloc allocation of 734 TMC. Mr. Ganguli

also contended that the Upper Krishna Multipurpose Stage II

Project Report of 1996 as per Exh. PAP 48, would indicate

that the State has planned irrigation from the water at

Almatti which the State would receive under Scheme B being

implemented. This being the position, the very idea of

having the dam height at Almatti at FRL 526.256, is even

contrary to the mass allocation made in its favour under

Scheme A and, therefore, the State should be injuncted.

We are unable to appreciate this contention of the State of

Andhra Pradesh inasmuch as on today the Central Government

as well as the appropriate authority have not sanctioned the

Upper Krishna Project Stage-II with the dam height at

524.256 meters. It would not be possible for this Court to

pronounce that there will be a violation of the mass

allocation if the State of Karnataka is allowed to have the

dam height at Almatti at 524.256 meters, though as stated

earlier, according to the State of Karnataka itself for

utilisation of 173 TMC, the required dam height is 519.6

meters. It is under these circumstances, we are of the

considered opinion that there should not be any bar against

the State of Karnataka to construct the dam at Almatti upto

the height of 519.6 meters and the question of further

raising its height to 524.256 meters should be gone into by

the tribunal, which learned Solicitor General agreed on

behalf of Govt. of India to be constituted immediately

after the delivery of judgment of these two suits, so as to

mitigate the grievance of each of the riparian States on a

complaint being made by any of the States.. So far as

sub-issue (b) is concerned, we really do not find any

substance in the contention of Mr. Ganguli, the learned

counsel appearing for the State of Andhra Pradesh. Though

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it may be fully desirable for all the States to know about

the developments of the other States but neither the law on

the subject require that a State even for utilisation of its

own water resources would take the consent of other riparian

States in case of an Inter-State river. So far as the

second part of Issue b is concerned, the answer is

irresistible that the project of each State has to be

approved by the Central Government as well as by other

statutory authorities and the Planning Commission, but for

which a State should not proceed with the construction of

such project. Issues 9(a) and (b) are answered accordingly.

ISSUE 9(C) Issue 9(C) had been framed while allowing

the additional written statement of the State of

Maharashtra, which relates to the question of submergence.

It is to be noted that in the original written statement

filed by the State of Maharashtra, a positive stand had been

taken that under the decision of the tribunal, there has

been an enbloc allocation of water in favour of each of the

three riparian states and as such there was no bar on the

State of Karnataka to have a dam at Almatti up to any height

and, therefore, it was prayed that the suit filed by the

Andhra Pradesh should be rejected. In the additional

written statement that was filed by the State of

Maharashtra, it has however been averred that the eventual

submergence of area within the State of Maharashtra had not

been known earlier and, therefore, neither before the

tribunal nor in the original written statement filed, any

grievance had been made with regard to the construction of

dam at Almatti to a height of 524.256 meters, but since the

joint study made by the officers of both the states have

brought out that a large area within the State of

Maharashtra would get submerged, if Karnataka is permitted

to have the dam height at Almatti up to 524.256 meters, the

State of Maharashtra has brought these facts to the notice

of this Court in the additional written statement and the

additional issue has been framed. In the absence of any

relief being sought for in the plaint by the plaintiff

against the State of Maharashtra, whether the defendant

State of Maharashtra can claim any relief against the co-

defendant is itself a debatable issue. Mr. Andhyarujina,

the learned senior counsel, appearing for the State of

Maharashtra , however contended that a suit filed in the

Supreme Court under Article 131 of the Constitution is of a

very peculiar nature and the normal principle of a suit

filed in an ordinary civil Court should not apply.

According to Mr. Andhyarujina, if a dispute between the two

states involving the existence or extent of a legal right of

one State is being infringed by the action or in-action of

another State, is brought before this Court invoking

jurisdiction under Article 131 of the Constitution, this

Court would be fully justified in entertaining and

adjudicating the said dispute, no matter whether the dispute

is raised as a plaintiff or a defendant in any proceeding

before the Court. It is in this context the learned counsel

referred to the observations of Bhagwati J and Chandrachud

J, in the case of State of Karnataka vs. Union of India,

1978(2) SCR 1, wherein Honble Bhagwati J had indicated that

the original jurisdiction of the Supreme Court under Article

131 on being invoked by means of filing a suit, the Court

should be careful not to be influenced by the considerations

of cause of action which are germane in suit and the scope

and ambit of the said jurisdiction must be determined on the

plain terms of the article without being inhibited by any a

priori considerations. The learned Judge in the same

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decision had also indicated that the very object of Article

131 seems to be that there should be a Forum, which could

resolve such disputes between two States or the State and

the Union and that forum should be the highest Court in the

land so that the final adjudication of disputes could be

achieved speedily and expeditiously without either party

having to embark on a long tortuous and time consuming

journey through a hierarchy of Courts. Mr. Andhyarujina

also relied upon the observations of Bhagwati J in the

aforesaid case to the effect:

What article 131 requires is that the dispute must be

one which involves a question on which the existence or

extent of legal right depends. The article does not say

that the legal right must be of the plaintiff. It may be of

the plaintiff or of the defendant. What is necessary is

that the existence or extent of the legal right must be in

issue in the dispute between the parties. We cannot

construe Article 131 as confined to cases where the dispute

relates to the existence or extent of the legal right of the

plaintiff, for to do so, would be to read words in the

article which are not there. It seems that because the mode

of proceeding provided in Part III of the Supreme Court

Rules for bringing a dispute before the Supreme Court under

Article 131 is a suit, that we are unconsciously influenced

to import the notion of cause of action, which is germane

in a suit, in the interpretation of Article 131 and to read

this article as limited only to cases where some legal right

of the plaintiff is infringed and consequently, it has a

cause of action against the defendant. But it must be

remembered that there is no reference to a suit or cause of

action in Article 131 and that article confers jurisdiction

on the Supreme Court with reference to the character of the

dispute which may be brought before it for adjudication.

The requirement of cause of action, which is so necessary

in a suit, cannot, therefore, be imported while construing

the scope and ambit of Art. 131.

The learned counsel Mr. Andhyarujina, also relied

upon the observations of Bhagwati J in the said decision to

the following effect:-

What has, therefore, to be seen in order to determine

the applicability of Art.131 is whether there is any

relational legal matter involving a right, liberty, power or

immunity qua the parties to the dispute. If there is, the

suit would be maintainable, but not otherwise.

Reliance was also placed on the observations of

Chandrachud J, in the self same case, which may be extracted

herein under:-

By the very terms of the article, therefore, the sole

condition which is required to be satisfied for invoking the

original jurisdiction of this Court is that the dispute

between the parties referred to in clauses (a) to (c) must

involve a question on which the existence or extent of a

legal right depends. Chandrachud J also had categorically

stated:-

I consider that the Constitution has purposefully

conferred on this, Court a jurisdiction which is untrammeled

by considerations which fetter the jurisdiction of a Court

of first instance, which entertains and tries suits of a

civil nature. The very nature of the dispute arising under

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Article 131 is different, both in form and substance, from

the nature of claims which require adjudication in ordinary

suits.

Mr. Andhyarujina, also referred to the comments of

Mr. Seervai in his book, wherein the author has said that

it is reasonable to hold that the court has power to resolve

the whole dispute, unless its power is limited by express

words or by necessary implications and the Supreme Court

would have the power to give whatever reliefs are necessary

for enforcement of a legal right claimed in the suit, if

such legal right is established. Mr. Andhyarujina also

contended that once the grievance of the State of

Maharashtra having brought forth before the Supreme Court in

a pending proceeding under Article 131 of the Constitution,

the jurisdiction having been invoked by the State of Andhra

Pradesh, the Court has ample power under Article 142 of the

Constitution and for doing complete justice between the

parties, the Court would not be bound by the provisions of

any procedure and can make a departure of the same. It is

in this context, reliance was placed on the observations

made by the Supreme Court in the case of Delhi Judicial

Services vs. State of Gujarat, 1991(4) SCC 406, whereunder

this Court has observed as follows:-

No enactment made by Central or State legislature can

limit or restrict the power of this Court under Article 142

of the Constitution, though while exercising power under

Article 142 of the Constitution, the Court must take into

consideration the statutory provisions regulating the matter

in dispute. What would be the need of complete justice in

a cause or matter would depend upon the facts and

circumstances of each case and while exercising that power

the Court would take into consideration the express

provisions of a substantive statute. Once this Court has

taken seisin of a case, cause or matter, it has power to

pass any order or issue direction as may be necessary to do

complete justice in the matter.

Mr. Andhyarujina submitted that the likelihood of

submergence within the State of Maharashtra on account of

height of dam at Almatti being raised to 524.256 meters, was

disclosed only during the pendency of the present suit and

the State of Karnataka itself in its letter dated 10th of

August, 1998 had communicated to the State of Maharashtra

that the State need not approach the Court of law on this

issue as the matter can be resolved amicably. According to

the learned counsel, the State of Karnataka too agreed to

carry out actual field surveys and calculations to determine

the extent of submergence under the directions of Central

Water Commission in its meeting dated 22.2.1999 and those

studies are still under progress and further the Supreme

Court itself had passed an order of status quo relating to

the height of Almatti Dam by order dated 2.11.1998 and

consequently, the State of Maharashtra never thought it fit

to file an independent suit, invoking the jurisdiction of

the Court under Article 131. But the State of Karnataka

having obtained the liberty from this Honble Court to

proceed further with the installation of the assembly of the

gates by order dated 4.11.1998 and the said State of

Karnataka refusing to give an undertaking to the State of

Maharashtra not to raise the height of the Almatti Dam

beyond the present level of 509 meters, the State of

Maharashtra was compelled to put forth its grievance on the

question of likely submergence of its territory and has

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prayed for the relief of injunction against the State of

Karnatka for raising the dam height up to 524.256 meters.

Mr. Andhyarujina also submitted that the exact extent of

area to be submerged in the event the Almatti Dam is allowed

to be constructed upto 524.256 meters, has not yet been

ascertained and surveys are still on, but there cannot be

any doubt that a large scale of the area within the State of

Maharashtra would get submerged. Mr. Nariman, the learned

senior counsel, appearing for the State of Karnataka did not

seriously dispute the right of a co-defendant like State of

Maharashtra to put forth the grievances so as to get relief

against another co-defendant, though he undoubtedly,

submitted that in the event, the State of Maharashtra was

allowed to have the additional written statement and an

adjudication of the additional issues framed, the State of

Karnataka should have been given an opportunity, putting

forth its case. He however contended that the dispute

relating to submergence of territory of Maharashtra on

account of the height of the dam at Almatti being raised to

524.256 meters, cannot be a matter of adjudication in a suit

under Article 131, since the State of Maharashtra had not

raised the dispute before the tribunal itself, even though

the Project Report submitted by the State of Karnataka

before the tribunal indicated the height of the dam at

524.256 meters. According to Mr. Nariman, such a dispute

would be a fresh water dispute and would not be a part of

adjudicated dispute and as such under Article 131 of the

Constitution this dispute cannot be entertained and decided

upon by this Court. Mr. Nariman also contended that the

materials on record do not establish or do not help the

Court to come to a positive finding that in the event, the

Almatti Dam is raised to 524.256 meters, a large extent of

the State of Maharashtra would get submerged inasmuch as the

submergence, if any and the flow back, if any, would be in

the river itself and not any territory beyond the river.

Mr. Nariman further urged that the State of Maharashtra did

anticipate submurgence of its territory as would appear from

its stand before the tribunal which is apparent from

paragraph 6.3.1(k) of Exh. MRK-1. It is true, according to

the learned counsel that the tribunal did not consider the

said question but after the Original Report was submitted,

Maharashtra could have filed an application under Section

5(3) of the Act, seeking clarifications on the question of

submergence but, that was not admittedly done, which would

indicate that it had no grievance on the question of

submergence. Having examined the rival contentions on this

issue, we have no hesitation to hold that the issue must be

answered against the State of Maharashtra.

It is no doubt true that the jurisdiction of the Court

in a suit under Article 131 of the Constitution is quite

wide, which is apparent from the language used in the said

article and as has been interpreted by this Court in the two

cases already referred to (see 1978 (2) SCR 1 and 1978 (1)

SCR 64). It is also true that Article 142 confers wide

powers on this Court to do complete justice between the

parties and the Court can pass any order or issue any

direction that may be necessary, but at the same time,

within the meaning of Article 131, the dispute that has been

raised in the present suit is between the State of Andhra

Pradesh and State of Karnataka and question, therefore,

would be whether it involve any existence or extent of a

legal right of such dispute. In answering such a dispute,

it may be difficult to entertain a further dispute on the

question of submergence as raised by the State of

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Maharashtra, a co-defendant. But in view of the stand taken

by Mr. Nariman, without further delving into the matter and

without expressing any final opinion, whether such a stand,

as the one taken by Maharashtra is possible for being

adjudicated upon, we would examine the merits of the said

contention. A bare perusal of the report of the tribunal

setting out the facts as found by it and giving its decision

on the matters referred to it as per Exh.PK1 as well as the

Further Report of the said tribunal, giving explanation to

the application for clarifications filed by the different

States, as per Exh. PK2, we find that the question of

submergence within the territory of the State of Maharashtra

on account of Almatti Dam in the State of Karnataka has not

at all been discussed nor any opinion has been expressed

thereon. The tribunal having given its decision on the

question of sharing of the water in river Krishna on enbloc

allocation basis, if the user of such water in a particular

way, becomes detrimental to another State, then such a

grievance would be a fresh dispute within the meaning of

Section 2(C) read with Section 3 of the Act and it cannot be

held to be an adjudicated dispute of the tribunal. We have

already indicated that it is only an adjudicated dispute

between the States on which a decision has been given by a

tribunal constituted under Section 4 of the Act by the

Government of India, can be a subject matter of a suit under

Article 131, if there is any breach in implementation of the

said decision of the tribunal. But a dispute between the

two states in relation to the said Inter- State river

arising out of the user of the water by one State would be a

fresh water dispute and as such would be barred under

Article 262 read with Section 11 of the Inter-State Water

Disputes Act, 1956. The question of submergence of land

pursuant to the user of water in respect of an Inter-State

river allocated in favour of a particular State is

inextricably connected with the allocation of water itself

and the present grievance of the State of Maharashtra would

be a complaint on account of an executive action of the

State of Karnataka within the meaning of Section 3(A) and

also would be a water dispute within the ambit of Section

2(C) and, therefore, it would not be appropriate for this

Court to entertain and examine and answer the same. We do

appreciate the concern of the State of Maharashtra, when it

comes to its knowledge that there would be large-scale

inundation and submergence of its territory if the height of

Almatti Dam is allowed to be raised to 524.256 meters, as

per the latest Project Report of the State of Karnataka, but

such concern of the State of Maharashtra alone would not be

sufficient for this Court to decide the matter and issue any

order of injunction as prayed for in the additional written

statement filed by the State of Maharashtra and on the other

hand, it would be a matter for being agitated upon before a

tribunal to be constituted by the Govt. of India in the

event, a complaint is made to that effect by the State of

Maharashtra. We also do not find sufficient materials in

this proceeding before us to enable this Court to come to a

positive conclusion as to what would be the effect on the

question of submergence, if the height of the dam at Almatti

is allowed to be constructed up to 524.256 meters inasmuch

as, according to the State of Maharashtra, the joint surveys

are still on. It is too well settled that no Court can

issue an order of mandatory injunction on mere apprehension

without positive datas about the adverse effects being

placed and without any definite conclusion on the question

of irreparable injury and balance of convenience. Then

again, while allowing a particular State to use the water of

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an inter- State river, if the manner of such user really

submerges some land in some other State, then the question

has to be gone into as to what would be the amount of

compensation and how the question of rehabilitation of those

persons within the submerged area can be dealt with which

really is an aspect of the doctrine of equitable

apportionment and all these can be gone into, if a complaint

regarding the same is made and the Government of India

appoints a tribunal for the said purpose. But these things

cannot be gone into, in a suit filed under Article 131 as a

part of implementation of an adjudicated dispute of a

tribunal. It is also surprising to note that even though

the Original Project Report of 1970 in relation to Almatti

Dam had been produced before the tribunal, which was

adjudicating the disputes raised by different States, yet

the State of Maharashtra never thought of the question of

submergence and never attempted to get that question decided

upon. In the aforesaid premises, howsoever wide the power

of the Court under Article 142 of the Constitution may be,

we do not think it proper to entertain the question of

submergence, raised by the State of Maharashtra in its

additional written statement and decide the question of

injunction, in relation to the height of Almatti Dam on that

basis. Issue 9 (c) is accordingly decided against the State

of Maharashtra.

It would also be appropriate to notice at this stage

another argument advanced by Mr. Andhyarujina, the learned

senior counsel appearing for the State of Maharashtra, to

the effect that in view of Clause XV of the decision of the

Tribunal each State is entitled to use water allocated in

their favour within its boundary, the moment by user of such

water by one State, any territory of another State get

submerged then it would be a violation of the decision of

the Tribunal contained in Clause XV, and therefore, the said

State should be injuncted from such user. Clause XV of the

decision reads thus:-

Nothing in the order of this Tribunal shall impair

the right or power or authority of any State to regulate

within its boundaries the use of water, or to enjoy the

benefit of water within that State in a manner not in

consistent with the order of this Tribunal.

The aforesaid Clause does not in any way interfere

with the rights of a State from using the water allocated by

the Tribunal within its boundaries nor is this Clause

capable of being construed that if any submergence is caused

in any other State by such user, then the user becomes in

consistent with any order of the Tribunal. Mr.

Andhyarujinas entire argument is based upon the expression

regulate within its boundary but that expression applies

to the use of water or enjoys benefits of water within that

State. Since the question of submergence of any other State

by the user of water by another State allocated in its

favour is not a subject matter of adjudication by the

Tribunal and in fact the Tribunal has not expressed any

opinion on the same it would be difficult for us to hold

that submergence ipso facto even if admitted to be any

within the State of Maharashtra by user of water by the

State of Karnataka at Almatti can be held to be in

consistent with the order of Tribunal. In this view of the

matter we are unable to accept the submission of Mr.

Andhyarujina, learned senior counsel appearing for the State

of Maharashtra that the user of water by the State of

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Karnataka by constructing a Dam at Almatti is in consistent

with Clause XV of the decision of Tribunal. Issue 9(C),

therefore, is answered against the State of Maharashtra.

ISSUE NO. 10

The aforesaid issue has been framed in view of the

averments made in paragraph 68 of the plaint. In the

aforesaid paragraph of the plaint the plaintiff has

indicated the figure in terms of acreage of land planned to

be irrigated by different projects and excess utilisation of

the water beyond the allocation made by the Tribunal in

respect of different projects. The plaintiff obviously is

under a misconception that in the decision of the Tribunal

there has been a projectwise allocation of water in respect

of different projects in different States. We have already

considered the matter at length and have come to the

conclusison that the allocation was made enbloc and not

projectwise and as such, the question that construction of

oversized reservoir at Almatti is contrary to the decision

of the Tribunal does not arise. Besides Clause VII of the

decision of the Tribunal indicates as to how use of water in

a water year will be measured and it stipulates that while

use shall be measured by the extent of depletion of the

waters of the river Krishna in any manner whatsoever

including losses of water by evaporation and other natural

causes from man made reservoirs and other works without

deducting the quantity of water which may return after such

use to the river, but so far as water stored in any

reservoir across any stream of the Krishna river system is

concerned, storage shall not of itself be reckoned as

depletion of the water of the stream except to the extent of

the losses of water from evaporation and other natural

causes from such reservoir. The water diverted from such

reservoir for its own use, however, has to be reckoned as

use by that State in the water year. In view of this

decision of the Tribunal assuming the State of Karnataka has

the potentiality of storage of water at Almatti, in the

absence of any materials placed by the plaintiff to indicate

as to any diversion from such reservoir by the State of

Karnataka for its own use, it is not possible to come to a

conclusion that there has been a violation of the decision

of the Tribunal by the State of Karnataka by having

potentiality of storage of water at Almatti, as contended by

the plaintiffs counsel. It is in this connection it is

worthwhile to notice that after submission of the report and

the decision in the year 1973 as per Exhibit PK-1 the

Government of India had filed the application for

clarification which was registered as Reference No. 1 of

1974 by the Tribunal and Clarification 1(b) was to the

following effect :-

While the Tribunal have laid down restriction on the

use of water in certain sub-basins as well as the total use

by each State, there may be locations where huydro power

generation (within the basin) may be feasible at exclusively

hydro-sites or at sites for multi-purpose projects. At such

sites, part of the waters allocated to the States, as also

water which is to flow down to other States could be used

for power generation either at a single power station or in

a series of power stations. The Tribunal may kindly give

guidance as to whether such use of water for power

generation within the Krishna basin is permitted even though

such use may exceed the limits of consumptive use specified

by the Tribunal for each State or sub- basin or reach, and

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if so, under what conditions and safeguards.

The State of Andhra Pradesh to the aforesaid

application for clarification submitted two Notes Nos. 9

and 10 before the Tribunal on 7th May, 1975 and 8th May,

1975. In this note it was specifically pleaded that the

Tribunal may be pleased to explain that the Upper State have

no right to store water in excess of share allocated to them

and in a manner which will affect the right of the State of

Andhra Pradesh in the dependable flow. Several grounds had

been advanced by the State of Andhra Pradesh as to why such

guidance is needed, particularly when under Scheme A

allocation there has been no express provision for sharing

of deficiency. The Tribunal considered the same and

ultimately noted in its further report under Exhibit PK-2

that the State of Andhra Pradesh withdrew the said note and

consequently no ground for any further clarification. A

note having been submitted by the State of Andhra Pradesh

seeking a clarification for fixation of a limit in the

matter of storage of water by the upper riparian States and

then ultimately having withdrawn the same the present

grievance that construction of large sized Dam at Almatti by

the State of Karnataka would adversely affect the State of

Andhra Pradesh and its right could be infringed is devoid of

any substance. The issue is accordingly answered against

the plaintiff.

ISSUES NO. 11 & 12 :

These two issues center round the same question as to

whether there was any specific allocation or utilisation at

Upper Krishna Project and whether providing for irrigation

under Almatti Canal is contrary to the decision of the

Tribunal since no allocation for irrigation has been made

thereunder. We have already discussed the relevant

materials placed by the State of Andhra Pradesh as well as

the decision of the Tribunal and we have come to the

conclusion that the plaintiff the State of Andhra Pradesh,

has utterly failed to establish that infact there was any

specific allocation by the Tribunal in respect of Upper

Krishna Project or the Almatti Reservoir and on the other

hand, the allocation was enbloc making it clear and

unambiguous that States can utilise the quantity of water

allocated in their favour within their territory. This

being the position we have no hesitation to answer these two

issues against the plaintiff State Andhra Pradesh and we

hold that the plaintiff has failed to produce any materials

in support of the aforesaid two issues. These two issues

accordingly are answered against the plaintiff.

ISSUE NO.13

So far as this issue is concerned the question of

entitlement of the State of Karnataka to reallocate or

re-adjust utilisation under UKP or any other project

unilaterally does not arise at all. If the Tribunal would

have made any projectwise allocation and would have

restricted the user of water under UKP to any particular

quantity then the question of re-allocation by the State of

Karntaka on its own would have arisen but the Tribunal not

having made any allocation in respect of the Upper Krishna

Project which includes Almatti and having made an enbloc

allocation so long as the total user by the State of

Karnataka does not exceed the enbloc allocation in its

favour it cannot be said that there has been any violation

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by the State of Karnataka by planning to use any particular

quantity of water at Almatti. Then again the question of

getting concurrence of other riparian States, as has been

raised by the State of Andhra Pradesh is wholly

misconceived. Neither there exists any law which compels

any State to get the concurrence of other riparian States

whenever it uses water in respect of inter-State river nor

the decision of the Tribunal which allocates the water in

the Krishna Basin on the basis of 75% dependability which

figure was in turn arrived at by an agreement of parties

puts any condition to have the concurrence of other riparian

State. In this view of the matter without further dilating

on this issue, we answer the same against the plaintiff.

ISSUE NO. 14

The aforesaid issue has been raised on the hypothesis

that the Union of India is going to sanction different

projects within the State of Karnataka which are in

violation of the decision of Krishna Water Disputes

Tribunal. As has been indicated earlier, so far as the

Upper Krishna Project is concerned, the Government of India

has approved the Dam height at crest level of 509 meters.

The subsequent revised project submitted by the State of

Karnataka in 1993 and re- submitted in 1996 are still under

consideration and no final decision has been taken thereon.

The Union of India in its counter affidavit has

categorically refuted the allegations made by the State of

Andhra Pradesh in this regard and on the other hand, it has

been averred that State of Andhra Pradesh is going ahead

with some project not sanctioned by the Union Government.

In course of hearing Mr. Ganguli, learned Senior counsel

appearing for the State of Andhra Pradesh, has not produced

any materials in support of the aforesaid stand pertaining

to issue no. 14. We, therefore, decide the said issue

against the plaintiff.

ISSUE NO.15

The aforesaid issue has been framed on the allegation

of the plaintiff that the State of Karnataka is likely to

execute the Upper Krishna Stage II multipurpose project

without getting the environmental clearance under the

Environment Protection Act as well as in violation of the

Notification issued by the Central Government in exercise of

its power under the same Act and the Rules made thereunder.

Under Article 256 of the Constitution it is an obligation

for the States to exercise their power ensuring compliance

with laws made by Parliament and even it enables the Union

Government to give such direction to a State as may be

necessary for that purpose. In a federal structure like

ours, the Constitution itself maintains balance by

distributing powers between the Centre and the States and by

conferring power on the Central Government to regulate and

to issue directions whenever necessary. The several

provisions of the Constitution have been tested in the last

50 years and there is no reason to conceive that any State

will force ahead with its project concerning user of water

in respect of Inter State reservoir without getting the

sanction/concurrence of the Appropriate Authorities and

without compliance with the relevant statutes or laws made

by the Parliament. It is a common knowledge that the large

scale projects planned by each of these States, are

submitted to the Planning Commission for its approval and

for getting financial assistance. Such projects are then

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examined by different authorities and it is only after

getting approval of the Planning Commission the same is

submitted to the appropriate departments of the Government

of India where again all the formalities are scrutinised and

final sanction or permission is granted. So far as user of

water in respect of an Inter State Reservoir is concerned,

the plans are also examined by the Central Water Commission,

who is an expert body and the views given by such Commission

also is taken into consideration by the Government of India.

This being the entire gamut of procedure we really fail to

understand on what basis the State of Andhra Pradesh has

made the allegation and the issue has been struck in that

respect. Needless to mention that every such projects

whether being executed in the State of Maharashtra or

Karnataka or Andhra Pradesh must be approved by the

appropriate authority of the Government of India and

necessarily, therefore, before any approval is accorded, the

project must be found to have complied with all the relevant

laws dealing with the matter. It has not been placed before

us that the State of Karnataka has carried out any project

in contravention of the provisions of any particular law

made by Parliament or in contravention of any direction

issued by the Government of India. This issue accordingly,

in our opinion, is pre-mature. But we hasten to add that

all the projects of different States concerning user of

water available to them in respect of an Inter State River

must be duly sanctioned by the Appropriate Authorities of

the Government of India after proper scanning and it is only

then the State would be entitled to carry out the same. The

issue is answered accordingly.

ISSUE NO.16

If the issue in question is examined in relation to

the construction of Almatti Dam, which in fact is the bone

of contention in the suit itself, we have not been able to

find out as to how the State of Andhra Pradesh has been or

would be adversely affected or what would be the

consequences thereon. When a plaintiff wants to seek a

relief of injunction by the action or inaction of the

defendant on the ground that such action or inaction has

been grossly detrimental to the interest of the plaintiff

State and has infringed the rights of the plaintiff State

then in such a case it is obligatory for the plaintiff to

put materials on record and establish the necessary

ingredients to enable the Court to come to the conclusion

that by such action or inaction of the defendant the

plaintiff has suffered irreparable damages . When we

examine the averments in the plaint as well as the documents

sought to be relied upon by the plaintiff on this score, we

find that there exists no materials on the basis of which it

is possible for a Court to come to a conclusion that on

account of the construction of Almatti Dam within the State

of Karnataka the lower riparian State the plaintiff has

been adversely affected or is likely to be adversely

affected. The complaint and grievance of the plaintiff

State is rather imaginary than real and on the records of

this proceedings no materials have been put forth to enable

the Court to come to a conclusion on the question of

so-called adverse effect on the State of Andhra Pradesh on

account of the construction of Dam at Almatti. Mr.

Ganguli, learned Senior Counsel appearing for the State of

Andhra Pradesh referred to the written memorandum furnished

to the Committee by the State of Karnataka wherein the said

State had unequivocally admitted that the additional storage

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in Almatti will cause a temporary reduction in quantum of

flows going to Andhra Pradesh for a period of about three

months during August to October which is made good later on.

According to the learned counsel since those three months

are vital for the crops in the State of Andhra Pradesh the

State will sustain irreparable damages and, as such on the

admission of the State of Karnataka a finding could be

arrived at. At the outset we must state that the written

memorandum furnished by the State of Karnataka cannot be

read in isolation by spinning out a particular sentence and

must be read as a whole. Thus read we do not find any

admission on the part of the State of Karnataka indicating

any reduction of flows to the State of Andhra Pradesh. Mr.

Ganguli also pointed out to Clause XV of Scheme B

whereunder the Tribunal itself had come to the conclusion

about the possibility of water shortage and had empowered

the concerned authority to make necessary adjustment. But

what has been stated thereunder is in relation to the

adoption of Scheme B which has not been possible on

account of lack of sincerity of the State of Andhra Pradesh

and even thereunder the Krishna Valley Authority has been

empowered as often as it thinks fit to determine the

quantity of water which is likely to fall to the share of

each State and adjust the uses of the authorities in such a

matter so that by the end of water year each State is

enable, as far as practicable, use the water according to

their share. We need not further examine this aspect

particularly when Scheme B has not been operative so far

and even this Court has refused to issue any mandatory

injunction for adoption of Scheme B in OS 1 of 1997 filed

by the State of Karnataka. In the aforesaid premises, we do

not have enough materials to come to the conclusion that the

construction of Almatti Dam by the State of Karnataka has in

any way affected or likely to affect the State of Andhra

Pradesh in any manner and consequently the said issue must

be answered against the plaintiff.

ISSUE NO. 17 - Under this issue, the question that

arises for consideration is whether by the decision of the

Krishna Water Disputes Tribunal, only 5.00 TMC was awarded

for utilisation at Hippargi. While answering Issue No. 3,

we have already held that the tribunal only made enbloc

allocation and not any specific allocation for specific

projects, excepting those mentioned in Clause (IX) and under

Clause (IX) so far as Hippargi is concerned, coming under K2

sub-basin, the same does not find mention therein. In this

view of the matter, the said issue is answered against the

plaintiff.

ISSUE NO. 18- The aforesaid issue has been framed on

the basis of averments made in paragraph 66(v) and paragraph

68(b) item No. 4. The averment in paragraph 66(v) is on

the basis of Newspaper Report and the averment made in

paragraph 68(b) item No. 4 is the own estimation of State

of Andhra Pradesh. Defendant No. 1- State of Karnataka

denies the contents of the averments in the plaint vide

paragraph No. 12.88 and paragraph No. 12.111. The counsel

appearing for the State of Andhra Pradesh also did not place

any material in support of the aforesaid issue in course of

the arguments and the averments in the plaint having been

denied in the written statement, the issue in question must

be answered against the plaintiff.

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ISSUE NO. 19- Though, the plaintiff-State of Andhra

Pradesh on its own estimation, has made an averment in

paragraph 68(b) to the effect that the plan utilisation by

the State of Karnataka in K2 sub-basin is 428.75 TMC on the

basis of which the aforesaid issue has been framed, but no

positive datas have been placed before us to come to the

aforesaid conclusion. On the other hand, the State of

Karnataka in its written statement has asserted that under

Upper Krishna Project, the utilisation would be to the tune

of 173 TMC and this is apparent from several documents

placed before the tribunal as well as in this proceeding In

this view of the matter, we answer this issue by holding

that the plaintiff has failed to establish that the

cumulative utilisation in K2 sub-basin of the State of

Karnataka would be to the tune of 428.75 TMC. At any rate,

since we have already held that the allocation was enbloc

and there is no restriction for utilisation in K2 sub-basin

in the decision of the tribunal. The issue really does not

survive for consideration. The issue is answered

accordingly.

ISSUE NO. 20- This issue relates to the decision of

the tribunal in Clause (IX), under which Clause,

restrictions have been put to the extent indicated

thereunder. But the State of Andhra Pradesh has not been

able to establish the allegation made in this regard nor

even the counsel, appearing for the State has made any

submission thereon. During the course of hearing of the

suit, on behalf of the State of Andhra Pradesh, written

submissions had been filed and even after the close of the

hearing, the State of Andhra Pradesh has filed a written

submission on 15th of March, 2000, in which also, there has

been no mention about the alleged violation in sub-basin

K-6, K-8 and K-9. We, therefore, answer this issue by

holding that the plaintiff has failed to establish the same

and the issue is answered against the plaintiff accordingly.

ISSUE NO. 21-

This issue relates to utilisation of water under

Almatti. In paragraph 66(iii), the plaintiff has made the

averment, which has been denied and explained in the written

statement by the State of Karnataka vide paragraph 12.85 and

the State of Karnataka further averred that the entire

utilisation at Almatti is within its allocable share and no

injury is caused to the State of Andhra Pradesh thereunder.

Since, we have already held that under the decision of the

tribunal, the allocation was enbloc and not project-wise,

even if it is held that utilisation under Almatti would be

of the order of 91 TMC, as claimed, the same would not

violate the decision of the tribunal. That apart, we do not

have any positive material, on the basis of which, it can be

said that the utilisation under Almatti would be of the

order of 91 TMC. The issue is answered accordingly.

In course of arguments Mr. Ganguli, the learned

Senior counsel for the State of Andhra Pradesh had raised a

contention that the State of Karnataka to frustrate any

decree to be passed by this Court injuncting the defendant

no.1 from raising the construction of the Dam at Almatti at

a height of 524.256 has already incorporated an autonomous

body, called Krishna Bhagya Jala Nigam Limited (KBJNL)and

the State Government has divested itself of all powers

relating to the construction of Dam at Almatti with the

aforesaid Nigam and this has been designedly made so that

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any order or decree for injunction would not be binding.

Since this argument had been advanced towards the concluding

stage and there was no assertion in the plaint in this

regard, nor any issue had been struck by the Court, the

State of Karnataka had been permitted to file an affidavit

indicating the correct state of affairs in relation to the

constitution of KBJNL and to allay or apprehension in the

minds of the plaintiff State. An affidavit had been filed

by the Secretary to the Government of Karnataka, Irrigation

Department, who has also been nominated as Director of

KBJNL, the said nomination having been made under Article

147(c) of the Articles of Association of the Companies. It

has been categorically stated in the said affidavit that for

facilitation of mobilising funds and providing sufficient

funds to complete irrigation projects the constitution of

KBJNL has been constituted with the sole idea to complete

the works of Upper Krishna Projects by 2000AD. This company

is a Government Company which has been established with an

approval of the Cabinet in the State of Karnataka by its

decision dated 6th May, 1994 and the Chief Minister of the

State of Karnataka is the Chairman of the Company whereas

Deputy Chief Minister is the Vice- Chairman of the Board of

Directors. All the Subscribers to the Memorandum are

Government Officials and it has been declared to be a

Government Company. The Memorandum of Articles of

Association have been exhibited as Exhibited PAP 210. The

affidavit has given the details as to how the State

Government retains full control over KBJNL and on going

through the said affidavit we have no hesitation to come to

the conclusion that the apprehension of the plaintiff State

is wholly mis-conceived and devoid of any substance.

In view of our conclusions drawn on different issues,

it is not possible for the Court to grant the relief of

permanent mandatory injunction, so far as construction of

the Dam at Almatti is concerned as well as the reliefs

sought for in paragraphs (b) to (k). But at the same time,

we make it clear that there is no bar for raising the height

of the Dam at Almatti upto 519.6 meters subject to getting

clearance from the Appropriate Authority of the Central

Government and any other Statutory Authority, required under

law. The question of raising the height upto 524.256 meters

at Almatti could be appropriately gone into by a Tribunal,

to be appointed by the Central Government, on being

approached by any of the three riparian States and such

Tribunal could also go into the question of apprehension of

submergence within the territory of the State of Maharashtra

and give its decision thereon, in the event the height of

the Dam at Almatti is allowed to be raised upto 524.256

meters. The Tribunal would also be entitled to go into the

question of reallocation of the water in river Krishna

basin, if new datas are produced by the States on the basis

of improved method of gazing.

The suit is disposed of accordingly. There will be no

order as to costs.