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PETITIONER:

IN THE MATTER OF CAUVERY WATER DISPUTES TRIBUNAL

Vs.

RESPONDENT:

DATE OF JUDGMENT22/11/1991

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

MISRA, RANGNATH (CJ)

SINGH, K.N. (J)

AHMADI, A.M. (J)

KULDIP SINGH (J)

CITATION:

1992 AIR 522 1991 SCR Supl. (2) 497

1993 SCC Supl. (1) 96 JT 1991 (4) 361

1991 SCALE (2)1049

ACT:

Constitution Of India, 1950:

Articles 131 and 262--Original Jurisdiction of Supreme

Court--Inter State river water dispute--Adjudication

of--Excluded from purview of Court and vested in Water

Tribunal under the Inter-State Water Disputes Act,

1956--Question of grant of interim relief--Whether could he

agitated before Court.

Article 143--Advisory Jurisdiction--Whether Court can

review its opinion--Whether President can refer a question

of law already decided by the Court--Advisory opinion

on Presidential Reference--Nature and effect of.

Articles 245,246,248,262, Seventh Schedule, List

I--Entries 56 and 97, List II--Entries 14,17 and

18--Inter-State river water---Karnataka Cauvery Basin Irri-

gation Protection Ordinance, 1991/Act No.27 of 1991---Con-

stitutional validity of--Legislative competence of State

Legislature--Whether denuded by Parliamentary legisla-

tion--Whether State Legislature can change the law declared

by Court--Whether can set aside decision of inter-parties

and affect their rights and liabilities alone---Whether

Inter-State Disputes Act enacted under Article 262 or Entry

56--Distinction inter se between Article 262. Entry 56 of

List I and Entry 17 of List II---Executive Order or legisla-

tive enactment of State Legislature interfering with adjudi-

catory process of Water Tribunal--Whether interference with

judicial power of State.

Karnataka Cauvery Basin Irrigation Protection Ordinance,

1991/ Act No.27 of 1991: Constitutional validity of.

Inter-State Water Disputes Act. 1956:

Sections 5(2) and 6--Inter-State river water

dispute--Order of Tribunal granting interim relief--Whether

a report and decision--Whether requires to be published in

the official gazette.

498

Section II-Exclusion of jurisdiction of Courts, includ-

ing Supreme Court---Question of grant of interim

relief--Whether falls outside purview of the Section.

Practice and Procedure:

Supreme Court Rules--Order XL, Rule I--Advisory opinion

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of Supreme Court under Article 143 of the

Constitution--Whether could be reviewed.

HEADNOTE:

In pursuance of the directions given by this Court in a

Writ Petition filed by the Tamil Nadu Ryots' Association,

the Union Government, by its notification dated June 2,

1990, constituted the Cauvery Water Disputes Tribunal under

Section 4 of the Inter-State Water Disputes Act, 1956 for

adjudication of the dispute regarding sharing of water of

the inter-State river Cauvery between the States of Karnata-

ka, the upper riparian State, Tamil Nadu, the lower riparian

State, and Kerala and the Union Territory of Pondicherry. By

another notification of the same date, it also referred the

water dispute emerging from the Letter of Request lodged by

the State of Tamil Nadu under Section 3 of the Inter State

Water Disputes Act with the Central Government on the fail-

ure of the negotiations between the parties in this regard,

for reference of the dispute to a Tribunal for adjudication.

In the Letter of Request the State had made a grievance

against construction of works in Karnataka area and the

appropriation of water upstream so as to prejudice the

interests downstream in the State of Tamil Nadu, and also

sought the implementation of the agreements of 1892 and

1924, which had been entered into when most of the areas in

these States comprised in the then Presidency of Madras and

the then State of Mysore. The last of the agreements had

expired in 1974 and though the understanding of 1976 had

been reached, further negotiations in the matter had failed

and hence the State of Tamil Nadu had lodged the aforesaid

Letter of Request.

Before the Tribunal, the State of Tamil Nadu submitted

an application for interim relief praying that State of

Karnataka be directed not to impound or utilise water of

Cauvery river beyond the extent impounded or utilised by

them as on 31.5.1972, as agreed to by the Chief Ministers of

the basin States and the concerned Union Minister and an

order restraining Karnataka from undertak-

499

ing any new projects, dams, reservoirs, canals and/or from

proceeding further with the construction of those already

commenced in the Cauvery basin. The Union Territory of

Pondicherry also sought a direction both to Karnataka and

Tamil Nadu to release the water already agreed to during the

months of September to March.

Meanwhile, Tamil Nadu filed an urgent petition to direct

Karnataka, as an emergent measure, to release at least 20

TMC of water as the first instalment, pending final orders

on their interim application.

Besides contesting the application on merits, both

Karnataka and Kerala raised a preliminary objection that the

Tribunal constituted under the Act had a limited jurisdic-

tion, and had no inherent powers as an ordinary Civil Court

has, and there was no provision of law which authorised or

conferred jurisdiction on the Tribunal to grant any interim

relief. The Tribunal held that since the question of grant-

ing interim relief was not referred to it, the applications

interim relief were not maintainable.

On appeal by the State of Tamil Nadu and the Union

Territory of Pondicherry, this Court held that reliefs

prayed for in the applications for interim relief and direc-

tions, were covered in the reference and fell within the

purview of the dispute referred to it by the Central Govern-

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ment under Section 5 of the later-State Water Disputes Act.

Accordingly, the Court directed the Tribunal to decide the

applications for interim relief and directions on merits.

Rejecting the objections once again raised by the State

of Karnataka, as regards the maintainability of the applica-

tions for interim relief, the Tribunal passed an order

directing the State of Karnataka, to ensure that 205 TMC

water was available in Tamil Nadu's Mettur reservoir every

year. Tamil Nadu was also directed to deliver to Pondicherry

6 TMC water. The Tribunal also directed Karnataka not to

increase its area under irrigation by the waters of Cauvery,

beyond the existing area. The order was to remain operative

till the final adjudication of the dispute referred to it.

The Tribunal's order thus gave rise to the issuance of

the Karnataka Cauvery Basin Irrigation Protection Ordinance,

1991 by the State of Karnataka nullifying the Tribunal's

order. The ordinance was subsequently replaced by Act No. 27

of 1991.

500

The State of Karnataka also instituted a suit under

Article 131 against the State of Tamil Nadu and others for a

declaration that the Tribunal's order granting interim

relief was without jurisdiction and, therefore, null and

void, etc.

Under these circumstances, the President of India made a

Reference to this Court under Article 143(1) of the Consti-

tution seeking advisory opinion on: (a) whether the Ordi-

nance and the provisions thereof were in accordance with the

provisions of the Constitution, (b) whether the Tribunal's

order constituted a report and a decision within the meaning

of Section 5(2) of the Inter-State Water Disputes Act, and

whether the same was required to be published by the Govern-

ment of India in order to make it effective, and (c) whether

a Water Disputes Tribunal constituted under the Inter-State

Water Disputes. Act was competent to grant any relief to the

parties to the dispute.

It was contended on behalf of the State of Karnataka

that the legislation clearly fell within the competence of

the State Legislature under Entry 17 as well as Entries 14

and 18 of List II in the Seventh Schedule of the Constitu-

tion and the State Legislature had every right to legislate

on the subject and this legislative power was subject only

to Entry 56 of List I which, however, did not denude the

States of the power to legislate under Entry 17, and, in the

absence of the constitution of a River Board for Cauvery, as

envis aged under Entry 56, the State retained full legisla-

tive power to make laws as if Entry 17 had remained un-

touched; that the executive power of the Union under Article

73 could not extend to any State with respect to matters on

which the State alone could legislate, in view of the field

having been covered by Article 162 of the Constitution; that

since the Inter-State River Disputes Act enacted under

Article 262 of the Constitution did not attract any Entry in

List I, it was law essentially meant to provide for the

adjudication of a dispute with respect to the use, distribu-

tion or control of waters of, or in, any inter-State river

or river valley and did not, therefore, step on the toe of

Entry 17, that the Ordinance, which became Act subsequently,

only sought to impose by section 3, a duty on the State

Government to protect, preserve and maintain irrigation from

Cauvery waters in the irrigable areas failing within the

various projects specified in the Schedule to the said

legislation, and, therefore, the legislation was clearly

within the scope of the State's power to legislate and was

intra vires the Constitution. A fortiori, the power to

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legislate conferred on the State Legislature by Entries 14,

17 and 18 of List

501

II, could not be inhibited by an interim order of the Tribu-

nal, since the scheme of the Act envisaged only one final

report or decision of the Tribunal under section 5(2) which

would have to be gazetted under section 6 thereof, and

therefore, it was open to the Karnataka Legislature to make

a law ignoring or overriding the interim order of the Tribu-

nal; that the scheme of the Act did not envisage the making

of an interim order by the Tribunal; once a water dispute

was referred to the Tribunal, it must 'investigate' the

matters referred to it and forward a report to the Central

Government setting out the facts found by it and giving its

decision on the matters referred to it, and the Central

Government must publish this decision in the official ga-

zette to make it final and binding on the parties to the

dispute, and since the interim order was not preceded by

such an investigation, the said order could not be described

as 'a decision' under section 5(2) of the Act, and conse-

quently, the Central Government was under no obligation to

publish the interim order, that the words 'any matter ap-

pearing to be connected with or relevant to water dispute'

employed in section 5(1) of the Act did not contemplate

reference of an interim relief matter, nor could the same

empower the Tribunal to make an interim order pendente lite,

and, therefore, having regard to the purpose, scope and

intendment of the Act, the Tribunal constituted thereunder

had no power or authority to grant any interim relief which

would have the effect of adversely interfering with its

existing rights, although while finally adjudicating the

dispute it could override any executive or legislative

action taken by the State, and since the allocation of flow

of waters between the concerned States was generally based

on the principle of 'equitable apportionment', it was incum-

bent on the Tribunal to investigate the facts and all rele-

vant materials before deciding on the shares of the con-

cerned States which was not possible at the interim stage

and hence the legislature had advisedly not conferred any

power on the Tribunal to make an interim order affecting the

existing rights of the concerned parties, and that the

President could refer any question of law under Article 143

and therefore, also ask the Supreme Court to reconsider any

of its decisions.

In its written statement, the State of Kerala, by and

large, supported the stand of the State of Kerala. However,

subsequently it was submitted that since neither the scheme

of the Act conferred any power on the Tribunal to make an

interim order nor the scope of Article 262 read with the

scheme of Act contemplated making of a Reference in that

regard, the only remedy available to a State

502

which apprehended any action by the upper riparian State

likely to adversely affect the rights of its people, was to

move the Supreme Court under Article 131 of the Constitu-

tion, notwithstanding the provisions of Article 262 and

section 11 of the Act; and accordingly, this Court's view

that there was a Reference to the Tribunal for grant of

interim relief was not consistent with the true meaning and

scope of Article 262 and the provisions of the Act and this

Court should not feel bound by it.

The State of Tamil Nadu contended that ordinarily a

dispute between two or more States would be governed by

Article 131 of the Constitution and, subject to the provi-

sions of the Constitution, the Supreme Court alone would

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have jurisdiction if and in so far as the dispute involved

any question whether of law or fact on which the existence

or extent of a legal right depended, that the Tribunal was

required to perform a purely judicial function which, but

for Article 262 and section 11 of the Inter-State Water

Disputes Act, would have been performed by a court of law,

that since the Tribunal was a substitute for the Supreme

Court, it was reasonable to infer that all the powers exer-

cised by the Supreme Court under Article 131 could be exer-

cised by the Tribunal while adjudicating a water dispute

and, therefore, the ancillary and incidental power to grant

interim relief inhered in such a Tribunal without the need

for an express provision or any specific reference to it in

that behalf; that apart, the decision of this Court dated

26th April, 1991 that the reference to the Tribunal included

the question of grant of interim relief operated as res

judicata and was binding on the contesting parties regard-

less of the view that this Court might take on the generali-

ty of the question referred for decision; if the question of

granting of interim relief formed part of the Reference, the

Tribunal was duty bound to decide the same and even other-

wise, it had inherent jurisdiction to grant interim relief,

whether or not the question regarding grant of interim

relief was specifically referred, and therefore, its deci-

sion would constitute a report under section 5(2) of the Act

and was liable to be published in the official Gazette as

required by section 6; that if there was any ambiguity in

the interim order the same could be taken care of under

section 5(3) of the Act; that the Ordinance in question was

ultra rites the Constitution for diverse reasons; the real

object and purpose was to unilaterally nullify the Tribu-

nal's interim order after having failed in the first round

of litigation; the State of Karnataka had no right to uni-

laterally decide the quantum of water it would appropriate

or the extent to which it would diminish the flow of Cauvery

waters to

503

the State of Tamil Nadu and thereby deny to the people of

Tamil Nadu their rightful share in the Cauvery waters; the

right to just and reasonable use of water being a matter for

adjudication by the Tribunal, no single State could, by the

use of its legislative power arrogate unto itself the judi-

cial function of equitable apportionment and decide for

itself the quantum of water it would use from the inter-

State river regardless of the prejudice it would cause to

the other State by its unilateral action; such a power could

not be read in Entry 17 as it would be destructive of the

principle that such water disputes were justiciable and must

be left for adjudication by an independent and impartial

special forum to which it was referred, namely, the Tribunal

constituted for resolving the dispute, and not by unilateral

executive or legislative interference, and, therefore, the

object of the legislation not being bona fide, the same

could not be allowed to stand as it had the effect of over-

ruling a judicial order passed by a Tribunal specially

appointed to adjudicate on the water dispute between the

parties thereto; it sought to override or neutralize the law

enacted by Parliament in exercise of power conferred by

Article 262 and not Article 246 read with the relevant

entry in the Seventh Schedule) of the Constitution; a State

Legislature could have no power to legislate with regard to

a water dispute as it would be incongruous to confer or

infer such power in a State Legislature to destroy what a

judicial body has done under a Central law; it had extra-

territorial operation, in that, it directly impinged on the

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rights of the people of Tamil Nadu to the use of Cauvery

waters; it was also contrary to the Rule of Law, and a power

not comprehended even by Article 262 could not be read into

the legislative power of the State for it would pervert the

basic concept of justice; and was also violative of the

fundamental rights of the inhabitants of Tamil Nadu guaran-

teed by Articles 14 and 21 of the Constitution, in that, the

action of Karnataka was wholly arbitrary and in total disre-

gard of the right to life of those inhabitants in Tamil Nadu

who survived on Cauvery waters; it was further contended

that in a civilised society governed by the Rule of Law, a

party to a 'lis' -water dispute- could not be allowed to

arrogate to itself the right to decide on the dispute or to

nullify an interim order made by a Tribunal in obedience to

the decision of the apex court, by abusing the legislative

power under Entry 17 under which the legislation purported

to be; moreover, the jurisdiction of this Court under Arti-

cle 143 of the Constitution was discretionary and this Court

should refrain from answering a Reference which was in

general terms without background facts and was likely to

entail a roving inquiry which may ultimately prove academic

only; secondly,

504

the State of Karnataka had immediately after the interim

order instituted a suit in this Court in which it had prayed

for a declaration that the interim order of the Tribunal

dated 25th June, 1991 was without jurisdiction, null and

void, and for setting aside the said order; while on the

one hand, the decision of this Court had become final and

was res judicata between the parties thereto, on the other

hand, the State of Karnataka was raking up the same question

of jurisdiction before this Court in a substantive suit with

a view to over-reaching this Court's earlier order; the

Presidential Reference in terms referred to disputes and

differences having arisen out of the Tribunal's interim

order which was said to have given rise to a public contro-

versy likely to result in undesirable consequences; such

matters could be effectively countered by the concerned

Government and did not call for a Presidential Reference; if

there was any doubt or difficulty in the implementation of

the order in question, recourse could always be had to

section 5(3) of the Act and hence, this Court should refuse

to answer the Reference.

The Union Territory of Pondicherry, contended that the

promulgation of the Ordinance (now Act) was intended to

further protract the long standing water dispute which came

to be referred to the Tribunal only after this Court issued

a mandamus in that behalf and was likely to prejudicially

affect the interest of the State as well as the farmers and

other inhabitants who utilised the water from river Cauvery,

that the said legislation was unconstitutional and was a

piece of colourable legislation, that in the case of flowing

water the riparian States had no ownership or proprietary

right therein except in the usufruct thereof and, therefore,

the power to legislate therein under Entry 17 of List II

could extend to only the usufructuary right subject to the

right of a riparian State to get the customary quantity of

water; that the Ordinance was also void for repugnancy,

being in conflict with the Central legislation, and also

violative of Article 21 of the Constitution as it was in-

tended to diminish the supply of water to Tamil Nadu and

Pondicherry, which was also against the spirit of Articles

38 and 39 of the Constitution,that since the water dispute

referred to the Tribunal comprised the issue regarding the

grant of interim relief, as held by this Court, the interim

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order made by the Tribunal constituted a report within the

meaning of section 5(2) of the Act and, consequently, the

Central Government was obliged to publish it, as required by

section 6 of the Act: and when so published it would operate

as a decision in rem: but even without publication it was

binding, on Karnataka as a decision in personam since the

jurisdiction of all courts including

505

the Supreme Court was taken away by virtue Of section 11 of

the Act read with Article 262(2) of the Constitution, and

the Tribunal had all attributes of a Court; it was required

to discharge the judicial function of adjudicating a water

dispute between two or more States and must be deemed to

possess the inherent incidental and ancillary power to grant

interim relief which inhered in all such judicial bodies,

and absence of an express provision in that behalf did not

detract from the view that such power inhered in a Tribunal.

Six intervention applications were also filed by differ-

ent persons and bodies from Karnataka, including the Advo-

cate General of the State in support of the case of Karnata-

ka.

An intervention application raising the contentions

similar to those of State of Tamil Nadu was also filed by

the Tamil Nadu Ryots' Association which had preferred the

original Writ Petition on which a mandate to constitute the

Tribunal was given.

Answering the Reference, this Court,

HELD: 1.1 The Karnataka Cauvery Basin Irrigation

Protection Ordinance 1991 promulgated by Governor of Karna-

taka on 25th July, 1991 (subsequently enacted by the State

Legislature as Act No. 27 of 1991) is beyond the legislative

competence of the State and, is therefore, ultra vires the

Constitution. [565 E]

1.2 The object of the provisions of the Ordinance is

obvious coming close on the Order of the Tribunal and in the

context of the stand taken by the State of Karnataka that

the Tribunal has no power or jurisdiction to pass any inter-

im relief, it is to override the said decision of the Tribu-

nal and its implementation. The Ordinance has thus the

effect of defying and nullifying any interim order of the

Tribunal appointed under a law of the Parliament. The other

effect of the Ordinance is to reserve to the State of Karna-

taka exclusively the right to appropriate as much of the

water of river Cauvery and its tributaries as it deems

requisite and in a manner and at periods it deems fit and

proper, although pending final adjudication by the Tribunal.

[546 F-G]

1.3 The Ordinance affects the jurisdiction of the Tribu-

nal appointed under the Central Act, viz., the inter-State

Water Disputes Act, which has been made under Article 262 of

the Constitution.

506

The State of Karnataka has arrogated to itself the power to

decide unilaterally whether the Tribunal has jurisdiction to

pass the interim order or not and whether the order is

binding on it or not. The State has presumed that till a

final order is passed by the Tribunal, the State has the

power to appropriate the waters of the river Cauvery to

itself unmindful of and unconcerned with the consequences of

such action on the lower riparian States, that it has supe-

rior rights over the said waters and it can deal with them

in any manner, and the lower riparian States have no equita-

ble rights and that it is the sole judge as to the share of

the other riparian States in the said waters. Moreover, it

has assumed the role of a judge in its own cause. [552 C,

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F-G]

1.4 Apart from the fact that the Ordinance directly

nullifies the decision of the Tribunal, it also challenges

the decision of this Court, which has ruled that the Tribu-

nal had power to consider the question of granting interim

relief since it was specifically referred to it. The Ordi-

nance further has an extra-territorial operation inasmuch as

it interferes with the equitable rights of Tamil Nadu and

Pondicherry to the waters of the Cauvery river. To the

extent that the Ordinance interferes with the decision of

this Court and of the Tribunal appointed under the Central

legislation, it is clearly unconstitutional being not only

in direct conflict with the provisions of Article 262 of the

Constitution under which the said enactment is made, but

being also in conflict with the judicial power of the State.

1552 H, 553 A]

1.5 The legislature can change the basis on which a

decision is given by the Court and thus change the law in

general, which will affect a class of persons and events at

large but it cannot set aside an individual decision inter-

parties and affect their rights and liabilities alone. Such

an act on the part of the legislature amounts to exercising

the judicial power of the State and to functioning as an

appellate court or Tribunal. [554 H, 555 A]

Municipal Corporation of the City of Ahmedabad etc. v.

New Shorock Spg. & Wvg. Co.. Ltd. etc. [1971] 1 SCR 288;

Madan Mohan Pathak v. Union of India & Ors. etc., [1978] 3

SCR 334 and P. Sambamurthy & Ors. etc. etc. v. State of

Andhra Pradesh & Anr., [1987] 1 SCR 879, referred to.

1.6 Any executive order or a legislative enactment of a

State which interferes with the adjudicatory process and

adjudication by such Tribunal is an interference with the

judicial power of the State. In view of the fact that the

Ordinance in question seeks directly to

507

nullify the order of the Tribunal, it impinges upon the

judicial power of the State. [555 C-D]

1.7 Further, admittedly, the effect of the Ordinance is

to affect the flow of the waters of the river Cauvery into

the territory of Tamil Nadu and Pondicherry which are the

lower riparian States. The Ordinance has, therefore, an

extra-territorial operation, and is thus beyond the legisla-

tive competence of the State and is ultra vires the provi-

sions of Article 245(1) of the Constitution. [555 E]

1.8 The Ordinance is also against the basic tenets of

the rule of law inasmuch as the State of Karnataka by issu-

ing the Ordinance has sought to take law in its own hand and

to be above the law. Such an act is an invitation to law-

lessness and anarchy, inasmuch as the Ordinance is a mani-

festation of a desire on the part of the State to be a judge

in its own cause and to defy the decisions of the judicial

authorities. The action forebodes evil consequences to the

federal structure under the Constitution and opens doors for

each State to act in the way it desires disregarding not

only the rights of the other States, the orders passed by

instrumentalities constituted under an Act of Parliament but

also the provisions of the Constitution. If the power of a

State to issue such an Ordinance is upheld it will lead to

the break down of the Constitutional mechanism and affect

the unity and integrity of the nation. [555 F-G]

2.1 Under Article 131, this Court has original jurisdic-

tion, among other things, in any dispute between two or more

States where the dispute involves any question whether of

law or fact on the existence and extent of which a legal

right depends except those matters which are specifically

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excluded from the said jurisdiction by the proviso. However,

the Parliament has also been given power by Article 262 of

the Constitution to provide by law that neither the Supreme

Court nor any other court shall exercise jurisdiction in

respect of any dispute or complaint with respect to the use,

distribution or control of the water of, or in, any inter-

State river or river valley. Section 11 of the Inter-State

Water Disputes Act, 1956, has in terms provided for such

exclusion of the jurisdiction of the Courts. Thus, Section

11 of the Act read with Article 262 excludes original juris-

diction of the inter-State water dispute which may be re-

ferred to the Tribunal established under the Act from the

purview of any Court including the Supreme Court under

Article 131. 1544 H, 545 A-B]

2.2 The Inter-State Water Disputes Act, 1956 has been

enacted only under Article 262 of the Constitution, and not

under Entry 56,

508

as it relates to the adjudication of the disputes and with

no other aspect either of the inter-State river as a whole

or of the waters in it. [550 G]

2.3 Entry 56 speaks of regulation and development of

interState rivers and river valleys and does not relate to

the disputes between the riparian States with regard to the

same and adjudication thereof. Even assuming that the ex-

pression "regulation and development" would in its width,

include resolution of disputes arising out therefrom and a

provision for adjudicating them, the Act does not make the

declaration required under Entry 56. This is obviously not

an accidental omission, but a deliberate disregard of the

Entry since it is not applicable to the subject-matter of

the legislation. Further no Entry in either of the three

Lists refers specifically to the adjudication of disputes

with regard to inter-State river waters, the reason being

that Article 262 of the Constitution specifically provides

for such adjudication. [547 A-C]

2.4 An analysis of Article 262 shows that an exclusive

power is given to the Parliament to enact a law providing

for the adjudication of disputes or complaints relating to

"use, distribution or control" of the waters of, or in any

inter-State river or river valley. The words "use", "distri-

bution" and "control" are of wide import and may include

regulation and development of the said waters. The provi-

sions clearly indicate the amplitude of the scope of adjudi-

cation, inasmuch as it would take within its sweep the

determination of the extent, and the manner, of the use of

the said waters, and the power to give directions in respect

of the same. [508 F-G]

2.5 The language of the Article has, further to be

distinguished from that of Entry 56 and Entry 17. Whereas

Article 262(1) speaks of adjudication of any dispute or

complaint and that too with respect to the use, distribution

or control of the waters of or in any inter-State river or

river valley, Entry 56 speaks of regulation and development

of inter-State rivers and river valleys.Thus, the distinc-

tion between Article 262 and Entry 56 is that whereas former

speaks of adjudication of disputes with respect to use,

distribution or control of the waters of any inter-State

river or river valley, Entry 56 speaks of regulation and

development of inter-State rivers and river valleys. Entry

17 likewise speaks of water, that is to say, water supplies,

irrigation and canals, drainage and embankments, water

storage and water power subject to the provisions of Entry

56. It does not speak either of adjudication of disputes or

of an

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509

inter-State river as a whole and State can only deal with

water within its territory. [547 H, 548 A-C]

2.6 The Inter-State Disputes Act, 19S6 is made pursuant

to the provisions of Article 262 specifically for adjudica-

tion of the disputes between the riparian States with regard

to the use, distribution or control of the waters of the

inter-State rivers or river valleys, and is not relatable to

Entry 56 and, therefore, does not cover either the field

occupied by Entry $6 or by Entry 17. Since the subject of

adjudication of the said disputes is taken care of specifi-

cally and exclusively by Article 262, by necessary implica-

tion the subject stands excluded from the field covered by

Entries 56 and 17. It is not, therefore, permissible either

for the Parliament under Entry $6 or for a State legislature

under Entry 17 to enact a legislation providing for adjudi-

cation of the said disputes or in any manner affecting or

interfering with the adjudication established by law under

Article 262. This is apart from the fact that the State

legislature would even otherwise be incompetent to provide

for adjudication or to affect in any manner the adjudicatory

process or the adjudication made in respect of the inter-

State river waters beyond its territory or with regard to

disputes between itself and another State relating to the

use, distribution or control of such waters. Any such act on

its part will be extra-territorial in nature and, therefore,

beyond its competence. [549 C-F]

2.7 It is not correct to say that it is Entry 97 of the

Union List,which deals with the topic of use, distribution

and control of the waters of an inter-State river. This is

so because the expression "regulation and development of

inter-State rivers and river valleys" in Entry 56 would

include the use, distribution and allocation of the waters

of the inter-State rivers and river valleys between differ-

ent riparian States. Otherwise, the intention of the Con-

stituent Assembly to provide for the Union to take over the

regulation and development under its control makes no sense

and serves no purpose. Further, the River Boards Act, 1956,

which is admittedly enacted under Entry 56 for the regula-

tion and development of inter-State rivers and river val-

leys, does cover the field of the use, distribution and

allocation of the waters of the inter-State rivers and river

valleys, indicating that the expression "regulation and

development" in Entry 56 has legislatively also been con-

strued to include the use, distribution or allocation of the

waters of the inter-State rivers and river valleys between

riparian States. To contain the operation of Entry 17 to the

waters of an inter-State river and river valleys

510

within the boundaries of a State and to deny the competence

to the State legislature to interfere with or to affect or

to extend to the use, distribution and allocation of the

waters of such river or river valley beyond its territory,

directly or indirectly, it is not necessary to fail back on

the residuary Entry 97, as an appropriate declaration under

Entry 56 would suffice. The very basis of a federal Consti-

tution mandates such interpretation and would not bear an

interpretation to the contrary which will destroy the con-

stitutional scheme and the Constitution itself. Although,

therefore, it is possible technically to separate the

"regulation and development" of the interState river and

river valley from the "use, distribution and allocation" of

its waters, it is neither warranted nor necessary to do so.

[549 G, 550, B-F]

2.8 Though the waters of an inter-State river pass

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through the territories of the riparian States such waters

cannot be said to be located in any one State. They are in a

state of flow and no State can claim exclusive ownership of

such waters so as to deprive the other States of their

equitable share. Hence in respect of such waters, no State

can effectively legislate for the use of such waters since

its legislative power does not extend beyond its territo-

ries. It is further an acknowledged principle of distribu-

tion and allocation of waters between the riparian States

that the same has to be done on the basis of the equitable

share of each State. What the equitable share will be will

depend upon the facts of each case. [551 H, 552 A-B]

3.1 The order of the Tribunal dated 25th June, 1991

granting interim relief constitutes a report and a decision

within the meaning of Section 5(2) of the Inter-State Water

Disputes Act, 1956. The said order is, therefore, required

to be published by the Central Government in the Official

Gazette under Section 6 of the Act in order to make it

effective. [565 F-G]

3.2 Sub-section (1) of Section 5 expressly empowers the

Central Government to refer to the Tribunal not only the

main water dispute, but any matter appearing to be connected

with or relevant to it. A request for an interim relief,

whether in the nature of mandatory direction or prohibitory

order, whether for the maintenance of status quo or for the

grant of urgent relief or to prevent the final relief being

rendered infructuous, would be a matter connected with or

relevant to the main dispute. In fact, this Court, by its

decision of April 26, 1991, has in terms held that the

request of the State of Tamil Nadu for granting interim

relief had been referred by the Central Government to the

Tribunal and directed the Tribunal to

511

consider the request on merits, the same being a part of the

Reference. Hence the order of the Tribunal will be a report

and decision within the meaning of Section 5(2) and would

have, therefore, to be published under Section 6 of the Act

in order to make it effective. [562 A-C]

3.3 It is not correct to say that since the Order

does not say that it is a report and decision it is not so

under Section 5(2) of the Act. Either the Order is such a

report and decision because of its contents or not so at

all. If the contents do not show that it is such a report,

it will not become one because the Order states so. The

contents of the order clearly show that it is a report and a

decision within the meaning of Section 5(2). [563 B]

3.4 The scope of the investigation that a Tribunal or a

Court makes at the stage of passing an interim order is

limited compared to that made before making the final adju-

dication. The extent and the nature of the investigation and

the degree of satisfaction required for granting or reject-

ing the application for interim relief would depend upon the

nature of the dispute, and the circumstances in each case.

No hard and fast rule can be laid down in this respect.

However, no Tribunal or court is prevented or prohibited

from passing interim orders on the ground that it does not

have at that stage all the material required to take the

final decision. To read such an inhibition in the power of

the Tribunal or a court is to deny to it the power to grant

interim relief when Reference for such relief is made.

Hence, the Tribunal constituted under the Act is not pre-

vented from passing an interim order or direction, or grant-

ing an interim relief pursuant to the reference merely

because at the interim stage it has not carried out a com-

plete investigation which is required to be done before it

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makes its final report and gives its final decision. It can

pass interim orders on such material as according to it is

appropriate to the nature of the interim order. [563 E-H]

3.5 The interim orders passed or reliefs granted by the

Tribunal when they are not of purely procedural nature and

have to be implemented by the parties to make them effec-

tive, are deemed to be a report and a decision within the

meaning of Sections 5(2) and 6 of the Act. [564 A]

3.6 In the instant case, Order of the Tribunal discusses

the material on the basis of which it is made and gives a

direction to the State of Karnataka to release water from

its reservoirs in Karnataka so as to ensure that 205 TMC of

water is available in Tamil Nadu's

512

Mettur reservoir in a year from June to May. It makes the

order effective from 1st July, 1991 and also lays down a

time-table to regulate the release of water from month to

month. It also provides for adjustment of the supply of

water during the said period. It further directs the State

of Tamil Nadu to deliver 6 TMC of water for the Karaikal

region of the Union Territory of Pondicherry. In addition,

it directs the State of Karnataka not to increase its area

under irrigation by the waters of the river Cauvery beyond

the existing 11.2 lakh acres. It further declares that it

will remain operative till the final adjudication of the

dispute. Thus, the order is not meant to be merely declara-

tory in nature but is meant to be implemented and given

effect to by the parties. Hence, the order in question

constitutes a report and a decision within the meaning of

Section 5(2) and is required to be published by the Central

Government under Section 6 of the Act in order to be binding

on the parties and to make it effective. 1564 B-D]

3.7 It is not correct to say that Section 5(3) of the

Act cannot apply to the interim orders as it is only the

final decision which is meant to undergo the second refer-

ence to the Tribunal provided in it. If the Tribunal has

power to make an interim decision when a reference for the

same is made, that decision will also attract the said

provisions. The Central Government or any State Government

alter considering even such decision may require an explana-

tion or guidance from the Tribunal as stated in the said

provisions and such explanation and guidance may be sought

within three months from the date of such decision. The

Tribunal may then reconsider the decision and forward to the

Central Government a further report giving such explanation

or guidance as it deems fit. In such cases it is the interim

decision thus reconsidered which has to be published by the

Central Government under Section 6 of the Act and becomes

binding and effective. Therefore, there is no reason why the

provisions of Section 5(3) should prevent or incapacitate

the Tribunal from passing the interim order. Once a deci-

sion, whether interim or final, is made under Section 5(2)

it attracts the provisions both of sub-section (3) of that

Section as well as the provisions of Section 6 of the Act.

[564 E-G]

4.1 A Water Disputes Tribunal constituted under the

InterState Water Disputes Act is competent to grant any

interim relief to the parties to the dispute when a refer-

ence is made by the Central Government. Whether the Tribunal

has power to grant relief when no reference is made for such

relief is a question which does not

513

arise in the facts and circumstances under which the Refer-

ence is made. 1565 H, 566 A]

4.2 This Court has held by its order dated 26th April,

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1991 that the Central Government had made a reference to the

Tribunal for the consideration of the claim for interim

relief prayed for by the State of Tamil Nadu and hence the

Tribunal had jurisdiction to consider the said request being

a part of the Reference itself. Implicit in the said deci-

sion is the finding that the subject of interim relief is a

matter connected with or relevant to the water dispute

within the meaning of Section 5(1) of the Act. Hence the

Central Government could refer the matter of granting inter-

im relief to the Tribunal for adjudication. Although this

Court has kept open the question, viz., whether the Tribunal

has incidental, ancillary. inherent or implied power to

grant the interim relief when no reference for grant of such

relief is made to it, it has in terms concluded second part

of the question. [557 A-C]

4.3 It is impermissible for this Court to sit in appeal

even in adjudicatory jurisdiction, nor is it competent for

the President to invest this Court with an appellate juris-

diction, over the said decision through a Reference under

Article 143 of the Constitution. [557 D]

4.4 It is not correct to say that the question of grant

of interim relief falls outside the purview of the provi-

sions of Section II of the Inter-State Water Dispute Act and

can be agitated under Article 131 of the Constitution. The

effect of the provisions of Section I 1 of the Act read with

Article 262 of the Constitution is that the entire judicial

power of the State, and, therefore, of the courts including

that of the Supreme Court to adjudicate upon original dis-

pute or complaint with respect to the use, distribution or

control of the water of, or in any inter State river or

river valleys has been vested in the Tribunal appointed

under Section 4 of the said Act. 1555 B-D]

5. It is not correct to say that the President can

refer any question of law under Article 143 and, therefore,

also ask this Court to reconsider any of its decisions. In

the first instance, the language Of clause (1) of Article

143 is opposed to such a proposition. The clause empowers

the President to refer or this Court's opinion a question of

law or fact which has arisen or is likely to arise. When

this Court in its adjudicatory jurisdiction pronounces its

authoritative opinion on a question of law, it cannot be

said that there is any doubt about the question of law or

the same is res integra so as to

514

require the President to know what the true position of law

on the question is. The decision of this Court on a question

of law is binding on all courts and authorities. Hence,

under the said clause the President can refer a question of

law only when this court has not decided it. Secondly, a

decision given by this Court can be reviewed only under

article 137 read with Rule I of Order XL of the the Supreme

Court Rules 1966 and on the conditions mentioned therein.

When, further, this Court overrules the view of law ex-

pressed by it in an earlier case, it does not do so sitting

in appeal and exercising an appellate jurisdiction over the

earlier decision. It does so in exercise of its inherent

power and only in exceptional circumstances such as when the

earlier decision is per incuriam or is delivered in the

absence of relevant or material facts or if it is manifestly

wrong and productive of public mischief. [557 E-H, 558 A-C]

The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension

of Laws) Act, 1947 and the Part C States (Laws) Act, 1950

(1951) SCR 747, distinguished.

The Bengal Immunity Company Ltd. v. The State of Bihar &

Ors., [1955] 2 SCR 603, relied on.

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Jatindra Nath Gupta v. The Province of Bihar & Ors.,

[1949] FCR 595; Hari Vishnu Kamath v.Syed Ahmad Ishaque &

Ors., [1955] 1 SCR 1104; Delhi Judicial Service Association.

Tis Hazari Court, Delhi etc. v. State of Gujarat & Ors.

etc., JT (1991) 3 SC 617and State of Bombay v. Gajanan

Mahadev Badley, AIR 1954 Bombay 351, referred to.

5.2 Under the Constitution appellate jurisdiction over

the earlier decision does not vest in this Court; nor can it

be vested in it the President under Article 143. If it is

accepted that the President can ask this Court to reconsider

any of its decisions it would mean that the advisory juris-

diction under Article 143 is also an appellate jurisdiction

of this Court over its own decision between the same par-

ties and the executive has a power to ask this Court to

revise its decision. If such power is read in Article 143

it would be a serious inroad into the independence of judi-

ciary. [558 D]

5.3 The facts in A.R.Antulay's case arc peculiar and the

decision therein has to be confined to those special facts.

Further the decision being inter-parties operates as res

judicata and cannot be reopened. [560G, 561 E]

515

A.R.Antulay v. K.S. Nayak & Anr., [1988] Suppt. 1 SCR 1

and R. S.Nayak v.A R. Antulay, [1984] 2 SCR 495, referred

to.

6. No opinion is expressed on the question whether the

opinion given by this Court on a Presidential Reference

under Article 143 of the Constitution, such as the present

one, is binding on all courts, firstly, because the question

does not form part of the Reference, and, secondly, any

opinion expressed on it would again be advisory. However,

adjudicatively it has been held by this Court that the

advisory opinion is entitled to due weight and respect and

normally, it will be followed. The said view holds the field

today and may usefully continue to do so till a more oppor-

tune time. [565 C-D]

JUDGMENT:

ADVISORY JURISDICTION: Special Reference No. 1 of 1991.

(Under Article 143 of the Constitution of India).

G. Ramaswamy, Attorney General, V.R. Reddy, Addl. Solic-

itor General, F.S. Nariman, T.R. Andhyarujina, Dr. Y.S.

Chitale, S.S. Javali, K. Parasaran, A.K. Ganguli, K.K.

Venugopal, A.S. Nambiar, Shanti Bhushan, P.P. Rao, P.P.

Muthanna, K. Subramanian, Curiae Joseph, N.N.Gangadeb, Ms.

A. Subhashini, Ms. Niranjana Singh, M.Veerappa, Subhash

Sharma. Mohan Katarki, Atul Chitale, K.H. Nobin Singh,

Subbanna, A. Subba Rao, G. Umapathy, E.C. Agarwala, P.N.

Ramalingam, Smt. Shante Vasudevan, P. Krishnamurthy, P.K.

Manohar, K.V. Viswanathan, Shalid Rizvi, Ashok Mukhoty, Mrs.

Sangeeta Garg, Jayant Bhushan, T.T. Kunhikanan, M.D.B. Raju,

G. Prabhakar, N. Ganpathi, S.R. Bhat, P. Mahale and P.R.

Pamasesh for the appearing parties.

A.K. Sen, Venkataraman and C.S. Vaidyanathan for the Inter-

vener.

The Report of the Court was delivered by

SAWANT, J. On July 27, 1991 the President, under Article

143 of the Constitution, referred to this Court three ques-

tions for its opinion. The Reference reads'as follows.:

"Whereas, in exercise of the powers conferred

by Section 4 of the Inter-State Water Disputes

Act, 1956 (hereinafter referred to as "the

Act"). the Central Government constituted a

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Water Disputes Tribunal Called "the Cauvery

Water Disputes Tribunal" (hereinafter called

"the Tribunal") by a notification dated 2

June, 1990, a copy where of is annexed here-

to, for the adjudi-

516

cation of the Water Dispute regarding the

Inter-State River Cauvery;

WHEREAS on 25 June 1991, the Tribunal passed

an interim Order (hereinafter referred to as

"the Order"), a copy whereof is annexed here-

to;

WHEREAS, differences have arisen with regard

to certain aspects of the Order;

WHEREAS, on 25 July 1991, the Governor of

Karnataka promulgated the Kamataka Cauvery

Basin Irrigation Protection Ordinance, 1991

(hereinafter referred to as "the Ordinance"),

a copy whereof is annexed hereto;

WHEREAS, doubts have been expressed with

regard to the constitutional validity of the

Ordinance and its provisions;

WHEREAS, there is likelihood of the constitu-

tional validity of the provisions of the

Ordinance, and any action taken thereunder,

being challenged in Courts of law involving

protracted and avoidable litigation;

WHEREAS, the said differences and doubts have

given rise to a public controversy which may

lead to undesirable consequences;

AND WHEREAS, in view of what is hereinbefore

stated, it appears to me that the following

questions of law have arisen and are of such

nature and of such public importance that it

is expedient to obtain the opinion of the

Supreme Court of India thereon;

NOW, THEREFORE, in exercise of the powers

conferred upon me by clause (1) of Article 143

of the Constitution of India, I, Ramaswamy

Venkataraman, President of India, hereby refer

the following question to the Supreme Court of

India for consideration and report thereon,

namely:

(1) Whether the Ordinance and the provi-

sions thereof are in accordance with the

provisions of the Constitution;

(2) (i) Whether the Order of the Tribunal

constitutes a report and a decision within the

meaning of section 5 (2) of the Act; and

(ii) Whether the Order of the Tribunal is

required to be published by the Central Gov-

ernment in order to make it effective;

517

(3) Whether the Water Disputes Tribunal

constituted under the Act is competent to

grant any interim relief to the parties to the

dispute."

To appreciate the significance of the questions referred

and our answers to them, it is necessary to understand the

factual background which has led to the Reference.

The river Cauvery is an inter-State river and is one of

the major rivers of the Southern Peninsula. The basin area

of the river and its tributaries has substantial spread-over

within the territories of the two States, namely. Karnataka

and Tamil Nadu, Karnataka being the upper riparian State and

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Tamil Nadu being the lower riparian State. The other areas

which are the beneficiaries of the river water are the

territories comprised in the State of Kerala and in the

Union Territory of Pondicherry. The total length of the

river from its head to its outflow into the Bay of Bengal is

about 802 kms. It travels about 381 kms. in Southern-East-

ernly direction before it reaches the border of Karnataka

and Tamil Nadu. It also constitutes boundary between the

said two States to an extent about 64 kms. and then tra-

verses a distance of about 357 kms. in Tamil Nadu before

joining the sea.

There were two agreements of 1892 and 1924 for sharing

the water of the river between the areas which are predomi-

nantly today comprised in the State of Karnataka and Tamil

Nadu, and which were at the time of the agreements comprised

in the then Presidency of Madras on the one hand and the

State of Mysore on the other. The last agreement expired in

1974. The river presently covers three States of Karnataka,

Tamil Nadu and Kerala and the Union Territory of Pondicher-

ry. The present State of Tamil Nadu has an area of about

43,868 sq. kms. of the Cauvery River basin, reducing the

basin area which at the time of the agreement was about

49,136 sq. kms. As against this the basin area of the said

river which was about 28,887 sq. kms. in the State of Mysore

has increased to about 34,273 sq. kms. in the present State

of Karnataka.

The contributions made to the flows of the Cauvery River

by Karnataka. Tamil Nadu and Kerala, according to the State

of Karnataka is 425 TMC, 252 TMC and 113 TMC respectively

together amounting to 790 TMC According to the State of

Tamil Nadu, the contributions of the three States respec-

tively are 392 TMC, 222 TMC and 126 TMC respectively togeth-

er amounting to 740 TMC. The Study Team appointed by the

Central Government in 1974 worked out the appropriations of

the respective States as follows: Karnataka--177 TMC, Tamil

Nadu including Pondicherry--489 TMC and Kerala--5 TMC.

518

In 1956 the Parliament enacted the River Boards Act,

1956 for the purpose of regulation and development of

inter-State rivers and river valleys find also the Inter-

State Water Disputes Act, 1956 for adjudication of disputes

with regard to the use, distribution or control etc. of the

said waters. In 1970 Tamil Nadu invoked the provisions of

Section 3 of the Inter-State Water Disputes Act. 1956 and

requested the Central Government for reference of the dis-

pute between the two States, viz. Tamil Nadu and Karnataka

to a Tribunal under the Act. The Central Government initiat-

ed negotiations between the two States. Simultaneously,

Tamil Nadu moved this Court by means of a suit under Article

131 of the Constitution being Suit No.1 of 1971 seeking a

direction to the Union Government to constitute a Tribunal

and to refer the dispute to it. In the said suit, Tamil Nadu

applied for an interim order to restrain the S;ate of Karna-

taka from proceeding with and executing the projects men-

tioned therein. This Court by its Order of 25th January,

1971 dismissed the application for interim relief.

It appears that the negotiations between the two states

which were going on in the meanwhile, resulted in the con-

stitution of a Fact Finding Committee in June 1972 which was

set up to ascertain facts, amongst others as to the avail-

ability of water resources, the extent of utilisation and

the nature of the areas in the respective States within the

river basin, and their requirements. In view of the consti-

tution of the Committee, Tamil Nadu withdrew its suit.

The Fact Finding Committee submitted its Reports in

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December, 1972, and August 1973. A Central Study Team headed

by Shri CC. Patel, then Addl. Secretary to Government of

India, in the Ministry of Irrigation was also set up to

examine the question of assessing the savings of water in

the existing and planned projects of the three States in the

Cauvery basin. The recommendation of the Study Team on

improvement and modernisation of the irrigation system

including the strengthening of the works and the lining of

channels, integrated operations of the reservoirs within the

Cauvery basin, scientific assessment of water requirement in

the command area and for monitoring the releases from the

reservoirs for an efficient tie up between the rain fall and

command, water requirement and release were announced at the

Inter-State Conference of June 1974.

Further negotiations resulted in what is known as "the

1976 Understanding". This Understanding envisaged the appor-

tionment of the surplus water in the ratio of 30:53:17

amongest the States of Tamil Nadu, Karnataka and Kerala

respectively. In the case of savings, the Study Team pro-

posed the apportionment in the ratio of 87 TMC to Karnataka,

4 TMC to Tamil Nadu and 34 TMC to Kerala.

519

It appears that in spite of the information gathered

through the Fact Finding Committee and the Study Team set up

by the Union Government, the negotiations were not fruitful.

In 1983, Tamil Nadu Ryots Association presented a petition

to this Court under Article 32 of the Constitution being

Writ Petition No. 13347 of 1983. The petition sought issue

of a writ of mandamus to the Central Government requiring it

to refer the dispute to a Tribunal under the Act. The peti-

tion was also accompanied by an application seeking interim

relief. The State of Tamil Nadu supported the Writ Petition.

Notices were issued to the respondents including the Union

Government and the State of Karanataka. The petition re-

mained pending in this Court for nearly seven years. No

application for interim relief was moved during this period.

Although the inter-State meetings continued to be held

during this period, nothing worthwhile emerged out of them.

Hence, in June 1986, the State of Tamii Nadu lodged a Letter

of Request under Section 3 of the Act with the Central

Government for the Constitution of a Tribunal and for refer-

ence of the water dispute for adjudication to it. In the

said letter, Tamil Nadu primarily made a grievance against

the construction of works in the Karnataka area and the

appropriaion of water upstream so as to prejudice the inter-

ests down-stream in the State of Tamil Nadu. It also sought

the implementation of the agreements of 1892 and 1924 which

had expired in 1974.

At the hearing of the Writ Petition filed by the Tamil

Nadu Ryots Association, the Central Government left the

matter to the Court. This Court taking into consideration

the course of negotiations and the length of time which had

passed, by its judgment dated May 4, 1990 held that the

negotiations between the two States had failed and directed

the Union Government to constitute a Tribunal under Section

4 of the Act. In pursuance of the directions given by this

Court, the Union Government by its notification dated June

2, 1990, constituted the Cauvery Water Disputes Tribunal and

by another Notification of the even date referred to it the

water dispute emerging from Tamil Nadu's Letter of Request

dated July 6, 1986.

2. The Cauvery Water Disputes Tribunal (hereinafter re-

ferred to as the "Tribunal") commenced its first sitting on

20th July, 1990. On that day, Tamil Nadu submitted a letter

before the Tribunal seeking interim reliefs. The Tribunal

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directed Tamil Nadu to submit a proper application. There-

upon Tamil Nadu and the Union Territory of Pondicherry

submitted two separate applications for interim reliefs

being CMP Nos. 4 and 5 of 1990.

520

The interim relief claimed by Tamii Nadu was that Karna-

taka be directed not to impound or utilise water of Cauvery

river beyond the extent impounded or utilised by them as on

31-5-1972. as agreed to by the Chief Ministers of the basin

States and the Union Minister for Irrigation and Powers. It

further sought passing of an order restraining Karnataka

from undertaking any new projects, dams, reservoirs, canals

and/or from proceeding further with the construction of

projects, dams, reservoirs. canals etc. in the Cauvery

basin.

In its application for interim relief Pondicharry sought

a direction from the Tribunal both to Karnataka and Tamil

Nadu to release the water already agreed to i.e., 9.355 TMC

during the months of September to March.

The Tribunal considered simultaneously both the applica-

tions for interim reliefs as well as the procedure governing

the trial of the main dispute. It directed the disputant

States to file their pleading by way of statements of cases

and also required the States of Karnataka and Kerala to

submit their replies to the applications for interim reliefs

made by Tamil Nadu and Pondicherry. By September 1990, all

the disputant States submitted their first round of plead-

ings or statements of cases. By November 1990, Karnataka and

Kerala also submitted their replies to the applications for

interim reliefs. The Tribunal gave time to the States to

submit their respective counter statements in reply to the

Statements of cases filed earlier in the main dispute.

It appears that before the disputant states submitted

their counter statements in the main dispute, the Tribunal

heard the applications for interim reliefs since Tamil Nadu

had, in the meanwhile, filed an application being CMP No.9

of 1990 as an urgent petition to direct Karnataka as an

emergent measure to release at least 20 TMC of water as the

first instalment, pending final orders on their interim

application CMP No.4/ 90.it appears that this application

was filed on the ground that the samba crop could not he

sustained without additional supplies at Mettur reservoir in

the Tamil Nadu State" Besides contesting the application on

merits, both Karnataka and Kerala raised a preliminary'

objection to the jurisdiction of the Tribunal to entertain

the said application and to grant any interim relief. The

preliminary objection was that the Tribunal constituted

under Act, had a limited jurisdiction. It had no inherent

powers as'an ordinary Civil Court has, and there was no

provision of law which authorised or conferred jurisdiction

on the Tribunal to grant any interim relief. The Tribunal

heard the parties both on the preliminary objection as well

521

as on merits, and by its Order of January 5, 1991. held.

among other things, as follows :-

"...... This Act is a complete code in so far

as the reference of a dispute is concerned. In

the circumstances. in our opinion, the Tribu-

nal is authorised to decide only the 'water

dispute' or disputes which have been referred

to it. If the Central Government is of the

opinion that there is any other matter con-

nected with or relevant to the 'water dispute'

which h,ks already been referred to the Tribu-

nal. it is always open to the Central Govern-

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ment to refer also the said matter as a dis-

pute to the Tribunal constituted under Section

4 of the Act. Further, no water dispute can be

referred by the Central Government unless the

Central Government is of the opinion that the

said dispute cannot be settled by negotia-

tions. In fact, no water dispute can be adju-

dicated without its reference to the Tribunal.

The interim reliefs which have been sought for

even if the same are connected with or rele-

vant to the water dispute already referred,

cannot be considered because the disputes in

respect of the said matters have not been

referred by the Central Government to the

Tribunal. Further, neither there is any aver-

ment in these petitions that the dispute

related to interim relief cannot be settled by

negotiations and that the Central Government

has already formed the opinion that it shall

be referred to the tribunal. In case the

petitioners of CMP Nos. 4,5 and 9 of 1990 are

aggrieved by the conduct of the State of

Karnataka and an emergent situation had ari-

sen, as claimed. they could have raised a

dispute before the Central Government and in

case the Central Government was of the opinion

that the said dispute could not be settled by

negotiations, the said dispute could also have

been referred by the Central Government to the

Tribunal. In case such a dispute had been

referred then it would have been open to the

Tribunal to decide the said dispute which

decision would then be final and binding on

the parties.

X X X X X

From the letter dated 6.7. 1986, which was

the request made on behalf of the State of

Tamil Nadu to the Central Government referring

the dispute to the Tribunal. it is clear that

the dispute which has been referred to this

Tribunal in regard to the executive action

taken by the Karnataka State in construct-

522

ing Kabini, Hemavathi, Harangi, Swarnavathi

and other projects and expanding the ayacuts

and the failure of the Karnataka Government to

implement the agreements of 1892 and 1924

relating to the use, distribution and the

control of Cauvery waters. No interim dispute

in regard to the release of waters by the

Karnataka Government from year to year subse-

quent to the date of the request made by the

State of Tamil Nadu was at all referred to the

Tribunal. The Tribunal has been called upon to

decide the main water dispute, which, when

adjudicated upon, would undoubtedly be binding

on the parties. In view of the above, we are

of the opinion that the Tribunal cannot enter-

tain the prayer for interim relief unless the

dispute relating to the same is specifically

referred to the Tribunal.

X X X X X X

X X X

The observations made by Hon'ble Supreme Court

in Union of India v. Paras Lamines (P) Ltd.,

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[1990] 4 SCC 453-supplied were in relation to

the Appellate Tribunal constituted under the

Customs Act, 1962. It was held that the Tribu-

nal functions is a court within the limits of

its jurisdiction. Its area of jurisdiction is

defined but within the bounds of its jurisdic-

tion it has all the powers expressly and

impliedly granted. The Supreme Court while

discussing the extent of the power of the

Tribunal in respect of the grant made by a

particular Statute held that the Tribunal will

have all incidental and ancillary powers for

doing of such acts or employing all such means

as are reasonably necessary to make the grant

effective. The import of the decision of the

Hon'ble Supreme Court is that the Tribunal

will have incidental and ancillary powers

while exercising the powers expressly con-

ferred. These incidental and ancillary powers

must relate to the actual dispute referred and

not to any other matter including granting of

interim reliefs which are not at all subject

matter of reference.

In our opinion what the Supreme Court intended

to hold was that the Tribunal has incidental

and ancillary powers to pass orders in respect

of a reference for adjudication of which it

has been constituted. It has not, however,

further laid (sic.) that it has also inciden-

tal and ancillary powers to grant relief in

respect of a dispute which has not at all been

referred.

In the instant case, the water dispute which

has been referred to us is that which emerges

from the letter of the State of

522

Tamil Nadu dated 6th July, 1986. The Tribunal

will have the power to pass such consequential

orders as are required to be made while decid-

ing the said dispute and will also have inci-

dental and ancillary powers which will make

the decision of the reference effective but

these powers are to be exercised only to

enable it to decide the reference effectively

but not to decide disputes not referred in-

cluding a dispute in regard to grant of inter-

im relief/interim reliefs.

X X X X X X

X X X.

The Second submission raised by the learned

counsel for Tamil Nadu namely to the effect

that the Tribunal alone could exercise juris-

diction in respect of a water dispute by

virtue of Article 262 of the Constitution of

India and in case Tribunal holds otherwise the

State of Tamil Nadu will be left with no

remedy available to it, it may be stated that

since we have taken the view that in case a

water dispute really arises and such water

dispute could not be resolved by negotiations

then it will be open to the Central Government

to refer the said dispute to the Tribunal for

adjudication, the question of not having a

remedy for a wrong does not arise before the

Tribunal. The Central Government if it finds

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that the dispute is connected with or related

to the water dispute already referred to the

Tribunal, it is open to it to refer the said

dispute also to the Tribunal in regard to the

granting of an interim relief."

In the view that it took, as above, the Tribunal held

that it could not entertain the said applications for grant

of interim reliefs as they were not maintainable in law, and

dismissed the same.

3. Being aggrieved, the State of Tamil Nadu approached this

Hon'ble Court by means of special leave petitions under

Article 136 of the Constitution against the orders passed

both in the original application for interim relief being

CMP No.4 of 1990 as well as in the application for urgent

interim relief being CMP No.9 of 1990. So did the Union

Territory of Pondicherry against the order passed by the

Tribunal in its application for interim relief being CMP

No.5 of 1990. These special leave petitions which were later

on converted into Civil Appeals Nos.303-04 of 1991 and Civil

Appeal No. 2036 of 1991 respectively, were heard together

and disposed of by this Court by its judgment dated April

26.1991. While allowing the appeals this Court held as

follows:

524

"Thus, we hold that this Court is the ultimate

interpreter of the provisions of the Inter-

State Water Disputes Act, 1956 and has an

authority to decide the limits, powers and the

jurisdiction of the Tribunal constituted under

the Act. This Court has not only the power but

obligation to decide as to whether the Tribu-

nal has any jurisdiction or not under the Act,

to entertain any interim application till it

finally decides the dispute referred to it.

X X X X X X

X X X

A perusal of the order of reference dated

2.6.90 as already extracted above clearly goes

to show that the Central Government had re-

ferred the water disputes regarding the

inter-State river Cauvery and the river valley

thereof, emerging from letter dated 6th July,

1986 from the Government of Tamilnadu. Thus

all the disputes emerging from letter dated

6th July, 1986 had been referred to the Tribu-

nal. The Tribunal committed a serious error in

omitting to read the following important

paragraph contained in the aforesaid letter

dated 6,7.86."

This Court then quoted the said paragraph from

the said letter of 6.7. 1986 which reads as

follows:

"REQUEST FOR EXPEDITIOUS ACTION IN REFERRING

TIlE DISPUTE TO TRIBUNAL.'

From 1974-75 onwards, the Government of Karna-

taka has been impounding all the flows in

their reservoirs. Only after their reservoirs

are filled up, the surplus flows are let down.

The injury inflicted on this State in the past

decade due to the unilateral action of Karna-

taka and the suffering we had in running

around for a few TMC of water every time and

crops reached the withering stage has been

briefly stated in note (Enclosure-XXVIII). It

is patent that the Government of Karnataka

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have badly violated the inter-State agreements

and caused irreparable harm to the age old

irrigation in this State. Year after year, the

realisation at Mettur is failing fast and

thousands of acres in our ayacut in the basin

are forced to remain fallow. The bulk of the

existing ayacut in Tamil Nadu concentrated

mainly in Thanjavur and Thiruchirappalli

districts is already gravely affected in that

the cultivation operations are getting long

delayed, traditional double crop lands are

getting reduced to single crop lands and crops

even in the single crop lands are withering

and falling for want of adequate wettings

525

at crucial times. We are convinced that the in

ordinate delay in solving the dispute is taken

advantage of by the Government of Karnataka in

extending their canal systems and their ayacut

in the new projects and every day of delay in

adding to the injury caused to our existing

irrigation."

The Court then proceeded to observe as fol-

lows:

"The above passage clearly goes to show that

the State of Tamilnadu was claiming for an

immediate relief as year after year. the

realisation of Mettur was failing fast and

thousands of acres in their ayacut in the

basin were forced to remain fallow. It was

specifically mentioned that the inordinate

delay in solving the dispute is taken advan-

tage of by the Government of Karnataka in

extending their canal systems and their ayacut

in the new projects and every day of delay is

adding to the injury caused to their existing

irrigation. The Tribunal was thus clearly

wrong in holding that the Central Government

had not made any reference for granting any

interim relief. We are not concerned, whether

the appellants are entitled or not, for any

interim relief on merits, but we are clearly

of the view that the reliefs prayed by the

appellants in their C.M.P. Nos. 4, 5 and 9 of

1990 clearly come within the purview of the

dispute referred by the Central Government

under Section 5 of the Act. The Tribunal has

not held that it had not incidental and ancil-

lary powers for granting an interim relief,

but it has refused to entertain the C.M.P.

Nos.4,5 and 9 on the ground that the reliefs

prayed in these applications had not been

referred by the Central Government. In view of

the above circumstances we think it is not

necessary for us to decide in this case, the

larger question-whether the Tribunal consti-

tuted under the Water Disputes Act has any

power or not to grant any interim relief. In

the present case the appellants become enti-

tled to succeed on the basis of the finding

recorded by us in their favour that the re-

liefs prayed by them in their C.M.P. Nos. 4,5

and 9 of 1990 are covered in the reference

made by the Central Government. It may also be

noted that at the fag end of the arguments it

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was submitted before us on behalf of the State

of Karnataka that they were agreeable to

proceed with the C.M.P.s on merits before the

Tribunal on the terms that all party States

agreed that all questions arising out of or

connected with or relevant to the water dis-

pute (set out in the respective pleadings of

the respective parties), including all

526

applications for interim directions/reliefs by

party States be determined by the Tribunal on

merits. However, the above terms were not

agreeable to the State of Tamilnadu as such we

have decided the appeals on merits."

In view of its findings as above, this court by the said

order directed the Tribunal to decide CMPs Nos. 4, 5 and 9

of 1990 on merits. In pursuance of these directions, the

Tribunal heard the said applications of Tamil Nadu and

Pondicherry. It appears that before the Tribunal, objections

were again raised on behalf of the State of Karnataka with

regard to the maintainability of the applications filed by

Tamil Nadu and Pondicherry for interim reliefs. The Tribunal

did not countenance the said objections holding that the

direction given by this Court was binding on it. The Tribu-

nal then proceeded to decide the applications on merits and

by its order dated June 25, 1991 held as follows:

"When we are deliberating whether any emergent

order ought to be passed, our prime considera-

tion ought to be to preserve, as far as possi-

ble, pending final adjudication the rights of

the panics and also to ensure that by unilat-

eral action of one party, other party is not

prejudiced from getting appropriate relief at

the time of the passing of the final orders.

We ought to also endeavour to prevent the

commission of any act by the panics which

might impede the Tribunal from making final

orders in conformity with the principles of

fair and equitable distribution of the waters

of this inter-State river.

x x x x x x x x

x

...... At this stage it would be neither

feasible nor reasonable to determine how to

satisfy the needs of the each State to the

greatest extent possible with a minimum of

detriment to others. We do not also propose at

this stage to enter into the question whether

the present use of water of the river Cauvery

either by the State of Tamil Nadu or the State

of Karnataka is the most beneficial use to

which the water could be put to.

x x x x x x x x

x

...... We do not propose to examine at this

stage the legality or justifiability of erec-

tion of these reservoirs, dams, canals, etc.

The said matters may be gone into if found

necessary at the appropriate stage. In this

case it would be in accordance with justice to

fix the annual releases into Mettur Dam by

making average of the same for a number of

normal years in the immediate past.

X X X X X X

X X X

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527

...... We have already mentioned that at the

present stage we would be guided by considera-

tion of balance of convenience and maintenance

of the existing utilisation so that rights of

the parties may be preserved tilt the final

adjudication....".

The Tribunal then directed the State of Karnataka to

release water from its reservoirs in Karnataka so as to

ensure that 205 TMC water is available in Tamil Nadu's

Mettur reservoir in a year from June to May. The Tribunal

further directed Karnataka to regulate the release of water

every year in the manner stated in the order. The monthly

quota of the water was to be released in four equal instal-

ments every week, and if there was not sufficient water

available in any week the deficit was directed to be made

good in the subsequent week. The Tribunal also directed

Tamil Nadu to deliver to Pondicherry 6 TMC water for its

Karaikal region in a regulated manner. In addition, the

Tribunal directed Karnataka not to increase its area under

irrigation by the waters of Cauvery, beyond the existing

11.2 lakh acres. The Tribunal then observed that its said

order would remain operative till the final adjudication of

the dispute referred to it.

Thereafter on July 25, 1991 the Governor of Karnataka

issued an Ordinance named "the Karnataka ,Cauvery Basin

Irrigation Protection Ordinance, 1991" which reads as fol-

lows:

"An Ordinance to provide in the interest of

the general public for the protection and

preservation of irrigation in irrigable areas

of the Cauvery basin in Karnataka dependent on

the waters of the Cauvery river and its tribu-

taries.

Whereas the karnataka Legislative Council is

not in Session and the Governor of Karnataka

is satisfied that circumstances exists which

render it necessary for him to take immediate

action for the protection and preservation of

irrigation in irrigable areas office Cauvery

basin in Karnataka dependent on the water of

Cauvery river and its tributaries.

Now, therefore, in exercise of the power

conferred under clause (1) of Article 213 of

Constitution of India, I, Khurshed Alam Khan.

Governor of Karnataka am pleased to promulgate

the following Ordinance, namely:-

1.Short title, extent and commencement:-

(1) This Ordinance may be called the

Karnataka Cauvery Basin Irrigation Protection

Ordinance, 1991.

528

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

Karnataka.

(3) It shall come into force at once.

2. Definition: Unless the context other-

wise requires:-

(a) "Cauvery basin" me,ms the basin area

of the Cauvery river and its tributaries lying

within the territory of the State of Karnata-

ka.

(b) "Irrigable area" means the areas

specified in the Schedule.

(c) "Schedule" means the Schedule annexed

to this Ordinance.

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(d) "Water year" means the year commenc-

ing with the 1st of June of a Calendar year

and ending with the 31st of May of the next

Calendar year.

3. Protection of Irrigation in irrigable

area:

(1) It shall be the duty of the State

Government to protect, preserve and maintain

irrigation from the waters of the Cauvery

river and its tributaries in the irrigable

area under the various projects specified in

the Schedule.

(2) For the purpose of giving effect to

sub-section (1) the State Government may

abstract or cause to be abstracted, during

every water year, such quantity of water as it

may deem requisite. from the flows of the

Cauvery river and its tributaries. in such

manner and during such intervals as the State

Government or ,my Officer, not below the rank

of an Engineer-in-Chief designated by it, may

deem fit ,red proper.

4. Overriding effect of the Ordinance:-

The provisions of this Ordinance. (,red of ,my

Rules and Orders made thereunder), shall have

effect not with standing anything contained in

any order, report or decision of any Court or

Tribunal (whether made before or after the

commencement of this Ordinance), save and

except a final decision under the provisions

of sub-section (2) of section 5 read with

section 6 of the Inter-State Water Disputes

Act, 1956.

5. Power to remove difficulties:-

If any difficulty arises in giving effect to

the provisions of this Ordinance, the State

Government may, by order, as occasion

529

requires, do anything (not inconsistent with

the provisions of this Ordinance) which ap-

pears to be necessary for purpose of removing

the difficulty.

6. Power to make rules:-

(1) The State Government may, by Notifi-

cation in the Official Gazette make rules to

carry out the purpose of this Ordinance.

(2) Every rule made under this Ordinance

shall be laid as may be after it is made,

before each House of the State Legislature

while it is in Session for a total period of

thirty days which may be comprised in one

Session or in two or more Sessions and if

before the expiry of the said period, either

House of the State Legislature makes any

modification in any rule or order directs that

any rule or order shall not have effect, and

if the modification or direction is agreed to

by the other House, such rule or order shall

thereafter have effect only in such modified

form or be no effect, as the case may be."

The Schedule mentioned in the Notification refers to the

irrigable areas in Cauvery basin of karnataka under various

projects including minor irrigation works.

Hot on the heels of this Ordinance, the State of Karna-

taka instituted a suit under Article 131 against the State

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of Tamil Nadu and others for a declaration that the Tribu-

nal's order granting interim relief was without jurisdiction

and, therefore, null and void etc.

Another development which may be noticed is that the

Ordinance has since been replaced by Act No.27 of 1991. The

provisions of the Act are a verbatim reproduction of the

provisions of the Ordinance except that in Section 4 of the

Act the words "any court or" are omitted and Section 7 is

added repealing the Ordinance. The omission of the above

words excludes this court's order dated April 26, 1991 from

the overriding effect of the said provision. Reference to

the Ordinance hereafter will include reference to the Act

also unless the context otherwise requires.

4. It is in the context of these developments that the

President has made the Reference which is set out in the

beginning.

5. Before us are arraigned the State of Tamil Nadu and the

Union Territory of Pondicherry on the one hand the States of

Karnataka and Kerala on

530

the other with the Union of Indian taking no side on the

issues arising out of the Reference. There are also inter-

veners on both sides. The contentions of the parties are

summarised hereafter. The contentions also include a plea on

both sides not to answer either all or one or the other

question raised in the Reference for reasons differently

advanced. These pleas will also be dealt with at their

proper places. Before we deal with the contentions, it is

necessary to note certain features of the Reference which

are also alluded to in the contentions of the parties. The

Reference is made under Article 143 (1) of the Constitution

of India seeking opinion of this Court under its advisory

jurisdiction. As has been stated in the preamble of the

Reference and is also not disputed before us, the first two

questions are obviously the outcome of the dispute relating

to the sharing of waters between Tamil Nadu and Pondicherry

on the one hand and Karnataka and Kerala on the other and

the developments that took place in the said dispute till

the date of Reference. As has been contended on behalf of

Tamil Nadu and Pondicherry, even the third question has a

relation to the dispute and the said events, and is not

general in nature though it is couched in general terms.

According to them, the question has been posed with an

oblique motive of getting over the judgement of this Court

dated April 26, 1991 and the consequent order of the Tribu-

nal dated June 25, 1991. Hence the said question should not

be answered. Their other contention is that if the question

is general in nature, it requires no answer at all.

6. The contentions of the parties on the questions referred

may now be summarised.

With reference to Question 1 the State of Karnataka

contends, in the light of the presumption of constitutional

validity which ordinarily attaches to a legislation, that

the onus lies heavily on the party challenging the same to

show that the impugned Ordinance (now Act) is ultra vires

the Constitution. The impugned legislation clearly falls

within the competence of the State legislature under Entry

17 as well as Entries 14 and 18 of List II in the Seventh

Shedule of the Constitution. Water, that is to say, water

supplies, irrigation and canals, drainage and embankments,

water storage and water power fall within Entry 17 of List

II (hereinafter referred to as 'Entry 17') and the State

Legislature has every right to legislate on the subject and

this legislative power is subject only to Entry-56 of List I

(hereinafter referred to as 'Entry 56'). That Entry deals

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with regulation and development of inter-State rivers and

river valleys to the extent to which such regulation and

development under the control of the Union is declared by

Parliament by law to be expedient in the public interest.

This Entry, it is contended, does not denude the States of

the power to

531

legislate under Entry 17, since it merely empowers the

Union, if Parliament has by law declared it to be in public

interest, that the 'regulation and development of inter-

State rivers and river valleys should, to the extent the

declaration permits, be taken under the control of the

Union. On a plain reading of the said Entry it is evident

that barring regulation and development' of an inter-State

river, subject to the declaration, the Central Government is

not conferred with the power to legislate on water, etc.,

which is within the exclusive domain of the State legisla-

tures. The River Boards Act, 1956 being the only legislation

made by Parliament under Entry 56, and the scope of the

declaration in section 2 thereof being limited 'to the

extent hereinafter provided', that is to say provided by

that statute, and no River Board having been constituted

thus far in respect of and inter-State river under the said

law, the power to legislate under Entry 17 is not whittled

down or restricted. Thus, contends the State of Karnataka,

the River Boards Act merely authorises the Union to set up a

River Board with a view to take under its control the regu-

lation and development of inter-State rivers without in any

manner restricting or controlling the legislative power

under Entry 17. But in the absence of the constitution of a

River Board for Cauvery, it is contended that the State of

Karnataka retains full legislative power to make laws as if

Entry 17 has remained untouched. Further, the executive

power of the Union under Article 73 cannot extend to any

State with respect to matters on which the State alone can

legislate in view of the field having been covered by Arti-

cle 162 of the Constitution. Since the Act enacted under

Article 262 of the Constitution does not attract any Entry

in list 1, it is a law essentially meant to provide for the

adjudication of a dispute with respect to the use, distribu-

tion or control of waters of, or in, any inter-.State river

or river valley and does not, therefore, step on the toe of

Entry 17. What the Ordinance (now Act) seeks to do is to

impose by section 3 a duty on the State Government to pro-

tect, preserve and maintain irrigation from Cauvery waters

in the irrigable areas failing within the various projects

specified in the Schedule to the said legislation. The State

of Karnataka, therefore, contends that the impugned legisla-

tion is clearly within the scope of the State's power to

legislate and is, therefore, intra-vires the Constitution. A

forteriori, the power to legislate conferred on the State

legislature by Entries 14, 17 and 18 of List II, cannot be

inhibited by an interim order of the Tribunal since the

scheme of the Act envisages only one final report or deci-

sion of the Tribunal under section 5 (2) which would have to

be gazetted under section 6 thereof. Until a final adjudica-

tion is made by the Tribunal determining the shares of the

respective StaLes in the waters of an inter-State river, the

States would be free to make optimum use of water within the

State and the Tribunal cannot interfere with such use under

the guise of an interim order. Consequently it was open to

the

532

Karnataka Legislature to make a law ignoring or overriding

the interim order of the Tribunal.

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With regard to Question 2 (i) of the Reference, the

State of Karnataka contends that the scheme of the Act does

not envisage the making of an interim order by the Tribunal.

Section 5 of the Act provides that after a Tribunal has been

constituted under section 4, the Central Government

shall refer the water dispute and any matter appearing to

be connected with, or relevant to, the water dispute to the

Tribunal for adjudication. On such Reference the Tribunal

must investigate the matters referred to it and forward a

report setting out the facts found by it and giving its

decision on the matters referred to it. If upon considera-

tion of the decision, the Central Government or any State

Government is of opinion that anything contained therein

requires explanation or that guidance is needed upon any

point not originally referred to the Tribunal, such Govern-

ment may within three months from to decision again refer

the matter for further consideration, and on such reference,

the Tribunal may forward a further report giving such expla-

nation and guidance as it deems fit and thereupon the deci-

sion of the Tribunal shall be deemed to be modified accord-

ingly. Section 6 then enjoins upon the Central Government to

publish the decision of the Tribunal in the Official Gazette

and on such publication 'the decision shall be final and

binding on the parties to the dispute and shall be given

effect to by them'. It is contended by the State of Karnata-

ka that the scheme of the aforestated provisions clearly

envisages that once a water dispute is referred to the

Tribunal' the Tribunal must 'investigate' the matters re-

ferred to it and forward a report to the Central Government

'setting out the facts found by it' and 'giving its deci-

sion' on the matters referred to it. It is this decision

which the Central Government must publish in the Official

Gazette to make it final and binding on the parties to the

dispute. The State of Karnataka, therefore, contends that

the scheme of the Act contemplates only one final report

made after full investigation in which findings of fact

would be set out along with the Tribunal's decision on the

matters referred to it for adjudication, and does not con-

template an interim report based on half-baked information.

Finality is attached to that report which records findings

of facts based on investigation and not an ad hoc:, tenta-

tive and prima facie view based on no investigation or

cursory investigation. The State of Karnataka, therefore,

contends that since the interim order was not preceded by an

investigation of the type contemplated by the Act, the said

order of 25th June, 1991 could not be described as 'a re-

port' or 'a decision' under section 5(2) of the Act and

hence there could be no question of publishing it in the

gazette. It is, therefore, contended that no finality can

attach to such an order which is neither a report nor a

decision and even if published in the

533

gazette it cannot bind the parties to the dispute and can

have no efficacy in law/. On Question 2(ii), it is, there-

fore, contended that since there was no investigation, no

findings on facts, no report and no decision, the Central

Government is under no obligation to publish the interim

order of the Tribunal.

With reference to Question 3, the State of Karnataka

reiterates that the scheme of the Act clearly envisages a

final report to be given by the Tribunal on conclusion of

the investigation and after the Tribunal has reached firm

conclusions on disputed questions of fact raised before it

by the contesting parties. It is only thereafter that it can

in its report record its decision which on being gazetted

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becomes final and binding on the parties. The words 'any

matter appearing to be connected with or relevant to water

dispute' employed in section 5(1) of the Act, do not contem-

plate reference of an interim relief matter nor can the same

empower the Tribunal to make an interim order pendente lite.

The Act has deliberately not conferred any power on the

Tribunal to make an interim order for the simple reason that

a water dispute has many ramifications, social, economic and

political, and involves questions of equitable distribution

of water which cannot be done without a full-fledged inves-

tigation of the relevant data-material including, statisti-

cal information. In the very nature of things, therefore, it

is impossible to think that the Act envisaged the making of

an interim order. While conceding that certain kinds of

interlocutory orders which are processual in nature can be

made by the Tribunal to effectuate the purpose of the Act,

namely, adjudication of a water dispute, no interim relief

or order can be granted which will affect the existing

rights of the parties because that would in effect deprive

the concerned State of the power to legislate in respect of

water under Entry 7 and/or make executive orders in that

behalf under Article 162 of the Constitution. The jurisdic-

tion conferred on the Tribunal under the Act to adjudicate

upon a water dispute does not extend to grant of interim

relief. The State of Karnataka, therefore, contends that

having regard to the purpose, scope and intendment of the

Act, the Tribunal constituted thereunder has no power or

authority to grant any interim relief which would have the

effect of adversely interfering with its existing rights,

although while finally adjudicating the dispute it can

override any executive or legislative action taken by the

State. Since the allocation of flow waters between the con-

cerned States is generally based on the principle of 'equi-

table apportionment', it is incumbent on the Tribunal to

investigate the facts and all relevant materials before

deciding on the shares of the concerned States which is not

possible at the interim stage and hence the legislature has

advisedly not conferred any power on the Tribunal to make an

interim order affecting the existing rights of the concerned

parties. The

534

State of Karnataka, therefore, urges that this question

deserves to be answered in the negative.

The State of Kerala has in its written submissions of

10th August, 1991 by and large supported the stand taken by

the State of Karnataka. It contends that the provisions of

the Act enacted under Article 262 of the Constitution con-

stitute a complete Code and the Tribunal has been conferred

the powers of a civil court under the Civil Procedure Code

only in respect of matters enumerated in section 9(1) of the

Act. The power to grant interim relief is conspicuously

absent and in the absence of an express provision in this

behalf, the Tribunal, which is a creation of the Act, can

have no jurisdiction to grant interim relief. It would be

advantageous to state the contention of the State of Kerala

in its own words:

".....Tribunal has no jurisdiction or power to

make an interim award or grant any interim

relief to a party unless the dispute relating

to the interim relief has itself been referred

to the Tribunal." (Paragraph 1.5)

This is further amplified in paragraph

3.3 of its submissions as under.:

"Such a relief can be granted to a party if

that forms the subject matter of a separate

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reference to the Tribunal by the Central

Government. In such a situation, the order of

the Tribunal, would constitute a separate

report and decision within section 5(2) of the

Act which would then be published by the

Central Government and would, therefore, be

binding on the parties."

It is, however, the stand of Kerala that no specific refer-

ence for grant of interim relief w,ks made to the Tribunal

and hence the interim order of 25th June, 1991 does not

constitute a report and a decision within the meaning of

section 5(2) and hence the Central Government is not expect-

ed to gazette the same. Unless the same is gazetted finality

cannot attach to it nor can it bind the parties. Therefore,

contends the State of Kerala, the Tribunal had no jurisdic-

tion to grant interim relief which it h,ks granted by its

aforesaid interim order. Hence the said order has no effica-

cy in law and can be ignored.

On the question of issuance of the Ordinance, the State

of Kerala contends, that such a legislation falls within the

scope and ambit of Entry 17 and is, therefore, perfectly

legal and constitutional and is not in any manner inconsist-

ent with Entry 56 nor does it trench upon any part of the

535

declaration in section 2 of the River Boards Act or any of

the provisions thereof. Thus according to Kerala, the legis-

lative competence to pass such a statute vests in the State

legislature under Entry 17 and, therefore, the Governor of

Karnataka was competent to issue the Ordinance under Article

213 of the Constitution.

However, in the course of his submissions before this

Court, Mr. Shanti Bhushan, counsel for the State of Kerala

departed from the stand taken in the written submission and

contended that the scheme of the Act does not confer any

power whatsoever on the Tribunal to make an interim order

and, therefore, the only remedy available to a State which

apprehends any action by the upper riparian State likely to

adversely affect its right, i.e. the rights of its people,

is to move the Supreme Court under Article 131 of the Con-

stitution notwithstanding the provisions of Article 262 and

section 11 of the Act. According to the learned counsel

since the scope of Article 262 read with the scheme of the

Act does not contemplate a Reference regarding the grant of

interim relief to the Tribunal constituted under the Act,

the field is left open for a suit to be instituted under

Article 131 of the Constitution. Mr. Shanti Bhushan went so

far as to contend that even if the Act had invested power in

the Central Government such a provision would have been hit

by Article 262 itself as the scope of that Article is limit-

ed while Article 131 is wider in scope. Thus according to

counsel, this Court's majority view expressed by Kasliwal,

J.in Civil Appeals Nos. 303,304 & 2036 of 1991 which held

that there was a reference to the Tribunal for grant of

interim relief is not consistent with the true meaning and

sope of Article 262 and the provisions of the Act and this

Court should not feel bound by it if it agrees with coun-

sel's interpretation for to do so would be to render wrong

advice to the President. It is thus manifest that counsel's

submissions are a clear departure from the written submis-

sion filed by the State on 10th August, 1991.

The State of Tamil Nadu contends that ordinarily a

dispute between (i) the Government of India and one or more

States or (ii) between the Government of India and any State

or States on one side and one or more other States on the

other or (iii) between two or more States would be governed

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by Article 131 of the Constitution and, subject to the

provisions of the Constitution, the Supreme Court alone

would have jurisdiction if and insofar as the dispute in-

volves any question (whether of law or fact) on which the

existence or extent of a legal right depends. Article 131

begins with the words 'subject to the provisions of the

Constitution' and hence it must be read subject to Article

262 of the Constitution. Article 262 enables Parliament to

provide by law for the adjudication of any dispute or com-

plaint with respect to the use, distribution or control of

the

536

waters of, or in, any inter-State river or river valley.

That law may, notwithstanding anything contained in the

Constitution, provide that neither the Supreme Court nor any

other court shall exercise jurisdiction in respect of any

such dispute or complaint as is referred to above. In exer-

cise of power conferred by this provision., the Parliament

enacted the Act and by section 11 provided as under:

"Notwithstanding anything contained in any

other law, neither the Supreme Court nor any

other court shall have or exercise jurisdic-

tion in respect of any water dispute which may

be referred to a Tribunal under this Act."

While Article 262(2) begins with the words 'notwith-

standing anything in this constitution', section II begins

with the words 'Notwithstanding anything contained in any

other law' which conveys that all courts including the

Supreme Court are debarred from exercising jurisdiction in

respect of any water dispute which may be referred to the

tribunal for adjudication.

It is, therefore, contended that the Tribunal required

to perform a purely judicial function which but for Article

262 and section 11 of the Act would have been performed by a

Court of law. An independent high level machinery consisting

of a Chairman and two other members nominated by the Chief

Justice of India from amongst sitting Judges of the Supreme

Court or of a High Court is to constitute the Tribunal for

adjudicating the water dispute. As the Tribunal is invested

with the State's judicial function it has all the trappings

of a civil court and it is inconceivable that such a high

powered judicial body would not be empowered to make interim

orders or grant interim relief, particularly when it is

empowered even to override an existing legislation or inter-

fere with a future legislation. Since the Tribunal is a

substitute for the Supreme Court (but for Article 262 and

section 11 of the Act, Article 131 would have applied) it is

reasonable to infer that all the powers which the Supreme

Court under Article 131 can be exercised by the Tribunal

while adjudicating a water dispute and, therefore, the power

to grant interim relief inheres in such a Tribunal without

the need for an express provision in that behalf. A Tribunal

on which is conferred a jurisdiction to adjudicate as to the

prejudicial effect of a future legislation or executive

action must of necessity possess the power to make interim

orders interdicting a prejudicial act. The State of Tamil

Nadu, therefore, contends that a high powered Tribunal like

the present one which is a substitute for this Court must be

presumed to have jurisdiction to grant an appropriate inter-

im relief. Such an ancillary and incidental power always

inheres in a Tribunal which discharges judicial

537

functions. It is, therefore, contended that Question 3 must

be answered in the affirmative.

Without prejudice to the generality of the above submis-

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sion, the State of Tamil Nadu contends that insofar as the

question of jurisdiction to grant interim relief concerning

the Cauvery water dispute is concerned, the decision of this

Court dated 26th April, 1991 in Civil Appeals Nos. 303, 304

and 2036 of 1991 operates as resjudicata and is binding on

the contesting parties regardless of the view that this

Court may take on the generality of the question referred

for decision. It must be recalled that this Court in its

judgment of 26th April, 1991 came to the conclusion that the

reference made to the Tribunal included the question of

grant of interim relief and this conclusion based on the

interpretation of the terms of the reference dated 2nd June,

1990 read with letter dated 6th July, 1991 was clearly

binding on the concerned parties and the Tribunal's interim

order on the merits of the matter made in pursuance of this

Court's directive to decide on merits is equally binding and

cannot be disturbed in proceedings arising out of a Refer-

ence under Article 143 (1) of the Constitution. If the

question of grant of interim relief forms part of the Refer-

ence, the Tribunal is duty bound to decide the same and such

decision would constitute a report under Section 5(2) of the

Act which the Central Government would be duty bound to

publish as required by section 6 of the Act. It is further

contended that in the view of the State of Tamil Nadu a

Tribunal constituted under the Act has inherent jurisdiction

to grant interim relief as pointed out earlier, whether or

not the question regarding grant of interim relief is spe-

cifically referred, and its decision thereon would consti-

tute a report under section 5(2) of the Act liable to be

published in the official Gazette as required by section 6

thereof. If there is any ambiguity in the interim order the

same can be taken care of under section 5(3) of the Act. The

State of Tamil Nadu, therefore, contends that both parts of

Question 2 deserve to be answered in the affirmative.

So far as Question 1 of the Reference is concerned, the

State of Tamil Nadu contends that the Karnataka Ordinance

(now Act) is ultra vires the Constitution for diverse rea-

sons. It is contended that the real object and purpose of

the legislation is to unilaterally nullify the Tribunal's

interim order after having failed in the first round of

litigation. It is contended that the State of Karnataka had

and has no right to unilaterally decide the quantum of water

it will appropriate or the extent to which it will diminish

the flow of Cauvery waters to the State of Tamil Nadu and

thereby deny to the people of Tamil Nadu their rightful

share in the Cauvery waters. The right to just and reasona-

ble use of water being a matter for adjudication by the

Tribunal, no single State can by the use of

538

its legislative power arrogate upto itself the judicial

function of equitable apportionment and decide for itself

the quantum of water it will use from the inter-State river

regardless of the prejudice it would cause to the other

State by its unilateral action. Such a power cannot be read

in entry 17 as it will be destructive of the principle that

such water disputes are justiciable and must be left for

adjudication by an independent and impartial special forum

to which it is referred, namely, the Tribunal constituted

for resolving the dispute, and not by unilateral executive

or legislative interference. It is, therefore, contended

that the object of the legislation not being bona fide, the

same cannot be allowed to stand as it has the effect of

overruling a judicial order passed by a Tribunal specially

appointed to adjudicate on the water dispute between the

parties thereto.

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On the question of legislative competence, the State of

Tamil Nadu contends that the statute is ultra vires the

Constitution for the following reasons:

(a) the Ordinance (now Act) is ultra

vires the Constitution as it seeks to override

or neutralise the law enacted by Parliament in

exercise of power conferred by Article 262

(and not Article 246 read with the relevant

entry in the Seventh Sechedule) of the Consti-

tution. A State Legislature can have no power

to legislate with regard to a water dispute as

it would be incongruous to confer or infer

such power in a State legislature to destroy

what a judicial body has done under a Central

law;

(b) the impugned legislation purporting

to be under Entry 17 of List II has extra-

territorial operation, in that, it directly

impinges on the rights of the people of Tamil

Nadu to the use of Cauvery waters.

(c) the impugned legislation is con-

trary to the Rule of Law and a power not

comprehended even by Article 262 cannot be

read into the legislative power of the State

for it would pervert the basic concept of

justice, and

(d) the impugned legislation is violative

of the fundamental fights of the inhabitants

of Tamil Nadu guranteed by Articles 14 and 21

of the Constitution, in that, the action of

Karnataka is wholly arbitrary and in total

disregard of the right to life of those inhab-

itants in Tamil Nadu who survive on Cauvery

waters.

539

The State of Tamil Nadu strongly contends that in a civi-

lised society governed by the Rule of Law, a party to a

'lis'-water dispute-cannot be owed to arrogate to itself the

fight to decide on the dispute or to nullify an interim

order made by a Tribunal in obedience to the decision of the

apex court by abusing the legislative power under Entry 17

under which the impugned legislation purports to be.

Without raising any preliminary objection and without

prejudice to its afore-mentioned contentions, the State of

Tamil Nadu contends that the jurisdiction of this Court

under Article 143 of the Constitution is discretionary and

this Court should refrain from answering a Reference which i

in general terms without background facts and is likely to

entail a roving inquiry which may ultimately prove academic

only. Secondly, the State of Karnataka has immediately after

the interim order instituted a suit, being Original Suit

No.1 of 1991, in this Court in which it has prayed for a

declaration that the interim order of the Tribunal dated

25th June, 1991 is without jurisdiction, null and void, and

for setting aside the said order. It is contended that while

on the one hand the decision of this Court, per Kasliwal,

J., has become final and is res judicate between the parties

thereto, on the other hand the State of Karnataka is raking

up the same question of jurisdiction before this court in a

substantive suit with a view to overreaching this Court's

earlier order. The Presidential Reference in terms refers to

disputes and differences having arisen out of the Tribunal's

interim order which, it is said, has given rise to a public

controversy likely to result in undesirable consequences.

Such matters, contends the State of Tamil Nadu, can be

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effectively countered by the concerned Government and do not

call for a Presidential Reference. If there is any doubt or

difficulty in the implementation of the impugned order

recourse can always be had to section 5(3) of the Act. In

the circumstances it is urged that this Court should refuse

to answer the Reference.

The Union Territory of Pondicherry contends that the

promulgation of the Ordinance (now Act) is intended to

further protract the long standing water dispute which came

to be referred to the Tribunal only after this Court issued

a mandamus in that behalf and is likely to prejudicially

affect the interest of the State as well as the farmers and

other inhabitants who utilise the water from river Cauvery.

It is contended that the said legislation is unconstitution-

al and is a piece of colourable legislation for the follow-

ing reasons:

(a) the power of the State Legislature to

enact a law on the subject falling in Entry 17

List II, is subject to the provisions of Entry

56 in List 1, and once Parliament had made a

declaration in that behalf in section 2 of the

River Boards

540

Act, the State Legislature was not competent

to enact the impugned law,

(b) once the Central Government had

entrusted the Cauvery water dispute to an

independent Tribunal under the provisions of

the Act, it was not constitutionally permissi-

ble for Karnataka to enact the impugned law,

(c) in the case of flowing water the

riparian States have no ownership or proprie-

tary right therein except in the usufruct

thereof and, therefore, the power to legislate

therein under Entry 17 of List II can extend

to only the usufructurary right subject to the

right of a riparian State to get the customary

quantity of water,

(d) the objective of the impugned legis-

lation is to set at naught the interim order

of the Tribunal and to the extent it seeks to

interfere with the exercise of judicial powers

it is unconstitutional,

(e) the impugned legislation is violative

of Article 21 of the Constitution as it is

intended to diminish the supply of water to

Tamil Nadu and Pondicherry which is also

against the spirit of Articles 38 and 39 of

the Constitution, and

(f) the impugned legislation seeks to

eclipse the interim order of the Tribunal

constituted under an Act made in virtue of

Article 262 of the Constitution and being in

conflict with the Central legislation is void

for repugnancy.

For the above reasons, Pondicherry contends that the

Ordinance (now the Act) is constitutionally invalid.

As regards Question 2 it is contended that the water

dispute referred to the Tribunal comprised the issue regard-

ing the grant of interim relief as held by Kasliwal, J. and

hence the interim order made by the Tribunal constitutes a

report within the meaning of section 5(2) of the Act and

consequently the Central Government is obliged to publish it

is required by section 6 of the Act. Once it is so published

it will operate as a decision in rem but even without publi-

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cation it is binding on Karnataka as a decision in personam.

If any explanation or guidance is required it can be had

from the Tribunal by virtue of section 5(3) of the Act. Once

the time for seeking explanation or guidance is over the law

enjoins on the Central Government the obligation to publish

the report under section 6 of

541

the Act. Both the elements of Question 2 must, contends

Pondicherry, be answered in the affirmative.

So far as Question 3 is concerned, it is contended that

the Tribunal constituted under the Act, though not a Court,

has all the attributes of a Court since it is expected to

discharge a judicial function and must, therefore, be pre-

sumed to have 'incidental and ancilliary powers' to grant

interim relief, if equity so demands. That is so because the

jurisdiction of all courts including this Court is taken

away by virtue of section 11 of the Act read with Article

262(2) of the Constitution. The Tribunal is, therefore,

required to discharge the judicial function of adjudicating

a water dispute between two or more States and must, there-

fore, be deemed to possess the inherent power to grant

interim relief which inheres in all such judicial bodies.

Absence of an express provision conferring power to grant

interim relief does not detract from the view that such

power inheres in a Tribunal which is called upon to dis-

charge an essentially judicial function. For discharging

such a function it is essential that the Tribunal must

possess inherent power to pass interim orders from time to

time in aid of adjudication. The Union Territory of Pondi-

cherry is, therefore, of the view that Question 3 must be

answered in the affirmative.

Six intervention applications have been filed by differ-

ent persons and bodies from Karnataka including the Advocate

General of the State in support of the case of Karnataka

raising contentions more or less similar to those raised by

the State itself. One intervention application is filed by

the Tamil Nadu Society which had preferred the original Writ

Petition in which a mandate to constitute a Tribunal under

the Act was given. The contentions raised by the interveners

are covered in the written submissions filed by the State of

Tamil Nadu and need not be reiterated. The said intervener

has also filed written submissions through counsel Shri

Ashok Sen which we shall deal with in the course of this

judgment.

Of the three questions which have been referred to this

Court under Article 143(1) of the Constitution, there can be

no dispute, and indeed there was none, that question 2

arises solely and entirely out of the Tribunal's order

granting interim relief. The question is whether that order

constitutes a report within the meaning of section 5(2) of

the Act and is required to be published in the gazette of

the Central Government to make it effective. The first

question refers' to the constitutional validity of the

Karnataka Ordinance (now the Act). Although this question

does not specifically refer to the Cauvery water dispute or

the interim order passed by the Tribunal, the preamble of

the said statute leaves no doubt that it is concerned with

the protection and preservation of irrigation in irrigable

542

areas of the Cauvery basin in Karnataka dependent on the

waters of the Cauvery river and its tributaries'. The provi-

sions of the said law extracted earlier leave no manner of

doubt that the State Government has been charged with the

duty to abstract or cause to be abstracted, during every

water year, such quantity of water as it may deem requisite,

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from the flows of river Cauvery and its tributaries, 'not-

withstanding anything contained in any order, report or

decision of any..... Tribunal', whether made before or

after the commencement of the said law, save and except a

final decision under section 5(2) read with section 6 of the

Act. There can, therefore, be no doubt that if the provi-

sions of this special Karnataka enactment become legally

effective, the Tribunal's order dated 25th June, 1991 grant-

ing interim relief would stand eclipsed. In that view of the

matter Question 1 is clearly intertwined with the Cauvery

water dispute referred to the Tribunal and the interim order

made by that body. The third question, it was contended by

Tamil Nadu and Pondicherry, though innocent in appearance

and apparently general in nature, is in fact likely to

nullify the interim order of the Tribunal. There can be no

doubt that this Court's opinion on Question 3 will certainly

have a bearing on the interim order of the Tribunal. Bearing

this in mind we may now proceed to deal with the questions

referred to this Court in the light of the submissions made

at the Bar.

7. We will deal with the respective contentions with refer-

ence to each of the questions.

Question No. I

To examine the validity of the contentions advanced on

this question it is first necessary to analyse the relevant

provisions of the Constitution.

The distribution of legislative powers is provided for

in Chapter I of Part XI of the Constitution. Article 245,

inter alia states that subject to the provisions of the

Constitution, Parliament may make laws for the whole or any

part of the territory of India and the legislature of the

State may make laws for the whole or any part of the State.

Article 246 provides, among other things, that subject to

clauses (I)and (2) of the said Article, the legislature of

any State has exclusive power to make laws for such State or

any part thereof with respect to any of the matters enumer-

ated in the State List in the Seventh Schedule. Clauses (1)

and (2) of the said Article refer to the Parliament's exclu-

sive powers to make laws with respect to any of the matters

enumerated in the Union List and the power of the Parliament

and the legislature of the State to make laws with respect

to any of the matters enumerated in the Concurrent List.

Article 248 gives

543

the Parliament exclusive power to make any law with respect

to any matter not enumerated in the Concurrent List or the

State List.

Entry 56 of the Union List reads as follows:

"Regulation and development of inter-State

rivers and river valleys to the extent to

which such regulation and development under

the control of the Union is declared by Par-

liament by law to be expedient in the public

interest."

A reading of this Entry shows that so far as inter-State

rivers and river valleys are concerned, their regulation and

development can be taken over by the Union by a Parliamen-

tary enactment. However, that enactment must declare that

such regulation and development under the control of the

Union is expedient in the public interest.

Entry 17 in the State List reads as follows:

"Water, that is to say, water supplies, irri-

gation and canals, drainage and embankments,

water storage and water power subject to the

provisions of Entry 56 of List I."

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An examination of both the Entries shows that the State

has competence to legislate with respect to all aspect of

water including water flowing through inter-State rivers,

subject to certain limitations, viz. the control over the

regulation and development of the inter-State river waters

should not have been taken over by the Union and secondly,

the State cannot pass legislation with respect to or affect-

ing any aspect of the waters beyond its territory. The

competence of the State legislature in respect of inter-

State river waters is, however, denuded by the Parliamentary

legislation only to the extent to which the latter legisla-

tion occupies the field and no more, and only if the Parlia-

mentary legislation in question declares that the control of

the regulation and development of the inter-State rivers and

river valleys is expedient in the public interest, and not

otherwise. In other words, if a legislation is made which

fails to make the said declaration it would not affect the

powers of the State to make legislation in respect of

inter-State river water under Entry 17.

Entry 14 of List II relates, among other things, to

agriculture. In so far as agriculture depends upon water

including river water, the State legislature while enacting

legislation with regard to agriculture may be competent to

provide for the regulation and development of its water

resources including water supplies, irrigation and canals,

drainage and embankments, water storage and water power

which are the subjects men-

544

tioned in Entry 17. However, such a legislation enacted

under Entry 14 in so far as it relates to inter-State river

water and its different uses and the manners of using it,

would also be, it is needless to say, subject to the provi-

sions of Entry 56. So also Entry 18 of List II which speaks,

among other things, of land improvement which may give the

State Legislature the powers to enact similar legislation as

under Entries 14 and 17 and subject to the same restric-

tions.

Entry 97 of the Union List is residuary and under it the

Union has the power to make legislation in respect of any

matter touching inter-State river water which is not enumer-

ated in the State List or the Concurrent List. Correspond-

ingly, the State legislature cannot legislate in relation to

the said aspects or matters.

8. Article 131 of the Constitution deals with original

jurisdiction of the Supreme Court and states as follows:-

"131. Original Jurisdiction of the Supreme

Court- Subject to the provisions of this

Constitution, the Supreme Court shall, to the

exclusion of any other court, have original

jurisdiction in any dispute--

(a) between the Government of India

and one or more States; or

(b) between the Government of India

and any State or States on one side and one or

more other States on the other; or

(c) between two or more States,

if and in so far as the dispute involves any

question (whether of law or fact) on which the

existence or extent of a legal right depends:

Provided that the said jurisdiction shall not

extend to a dispute arising out of any treaty,

agreement, covenant, engagement, sanad or

other similar instrument which, having been

entered into or executed before the commence-

ment of this Constitution, continues in opera-

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tion after such commencement, or which pro-

vides that the said jurisdiction shall not

extend to such a dispute."

It is clear from the Article that this Court has origi-

nal jurisdiction, among other things, in any dispute between

two or more States where the

545

dispute involves any question whether of law or fact on

which the existence and extent of a legal right depends

except those matters which are specifically excluded from

the said jurisdiction by the proviso. However, the Parlia-

ment has also been given power by Article 262 of the Consti-

tution to provide by law that neither the Supreme Court nor

any other court shall exercise jurisdiction in respect of

any dispute or complaint with respect to the use, distribu-

tion or control of the water of, or in, any interState river

or river valley. Section 11 of the Act, namely, the Inter-

State Water Disputes Act, 1956 has in terms provided for

such exclusion of the jurisdiction of the courts. It reads

as follows:-

"Sec. 11- Notwithstanding anything contained

in any other law, neither the Supreme Court

nor any other court shall have or exercise

jurisdiction in respect of any water dispute

which may be referred to a Tribunal under this

Act."

This provision of the Act read with Article 262 thus

excludes original cognizance or jurisdiction of the inter-

State water dispute which may be'referred to the Tribunal

established under the Act, from the purview of any Court

including the Supreme Court under Article 13 1.

9. We may now analyse the provisions of the Karnataka

Ordinance in question the text of which is already repro-

duced. Its preamble states, that it is issued (i) to provide

for the protection and preservation of irrigation in irriga-

ble areas of the Cauvery basin in Karnataka dependent on the

waters of the Cauvery river and its tributaries, and (ii)

that the Governor of Karnataka was satisfied that circum-

stances existed which rendered it necessary for him to take

immediate action for the said protection and preservation.

The irrigable areas of which protection and preservation is

sought by the Ordinance are mentioned in the Schedule to the

Ordinance. Admittedly the Schedule includes the irrigable

area as existing in 1972 during the tenure of the agreement

of 1924 between Karnataka and Tamil Nadu as well as the

increase in the same since 1972 till the date of the Ordi-

nance as well as the areas which are committed to be brought

under irrigation on account of some of the projects men-

tioned in Column II of the Schedule. Clause 3(1) of the

Ordinance then makes a declaration of the duty of the State

Government to protect, preserve and maintain irrigation from

the waters of the Cauvery river and its tributaries in the

said irrigable area. Sub-clause (2) of the said clause then

gives powers to the State Government to abstract or cause to

be abstracted during every water year (which is defined as

the year commencing with 1st of June of a calendar year and

ending with 31st May of next calendar year), such quantity

of water as it may deem requisite, from the flows of the

Cauvery river and its tributaries and in such manner and

during such intervals as

546

the State Government or any officer not below the rank of an

Engineer-inChief designated by it may deem fit and proper.

(Emphasis supplied). This clause, therefore, vests in the

State Government or the Officer designated by it, an abso-

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lute power to appropriate any quantity of water from the

Cauvery river and its tributaries and in any manner and at

any interval as may be deemed fit and proper. The power

given by the clause is unrestricted and uninhibited by any

consideration save and except the protection and preserva-

tion of the irrigable area of the Karnataka State.

Clause 4 is still more absolute in its terms and opera-

tion inasmuch as it declares that the Ordinance and any

rules and orders made thereunder shall have effect notwith-

standing anything contained in any Order, report or decision

of any court or tribunal (whether made before or after the

commencement of the Ordinance) save and except a final

decision under the provisions of sub-Section (2) of Section

5 read with Section 6 of the Inter-State Water Disputes Act.

Clause (5) states that when any difficulty arises in

giving effect to the provisions of this Ordinance, the State

Government may, by order, as occasion requires, do anything

which appears to be necessary for the purpose of removing

the difficulty, and clause (6) gives power to the State

Government to make rules to carry out the purpose of the

Ordinance. Clauses (4), (5) and (6) read together show that

the Ordinance, Rules and Order made thereunder will prevail

over any order, report or decision of any court including

the Supreme Court and, of course, of the Tribunal under the

Inter-State Water Dispute Act. The only decision which is

excluded from the overriding effect of the Ordinance is the

final decision of the Water Disputes Tribunal given under

Section 5 (2) read with Section 6 of the Inter-State Water

Disputes Act.

10. The object of these provisions of the Ordinance is

obvious. Coming close on the Order dated 25th June, 1991 of

the Tribunal and in the context of the stand taken by the

State of Karnataka that the Tribunal has no power or juris-

diction to pass any interim order or grant any interim

relief, it is to override the said decision of the Tribunal

and its implementation. The Ordinance has thus the effect of

defying and nullifying any interim order of the Tribunal

appointed under a law of the Parliament. This position is

not disputed before us on behalf of the State of Karnataka.

The other effect of the Ordinance is to reserve to the State

of Karnataka exclusively the right to appropriate as much of

the water of river Cauvery and its tributaries as it deems

requisite and in a manner and at periods it deems fit and

proper, although pending the final adjudication by the

Tribunal.

11. It cannot be disputed that the Act, viz., the Inter-

State Water Disputes Act, 1956 is not a legislation under

Entry 56. In the first instance Entry 56

547

speaks of regulation and development of inter-State rivers

and river valleys and does not relate to the disputes be-

tween the riparian States with regard to the same and adju-

dication thereof. Secondly, and even assuming that the

expression "regulation and development" would in its width,

include resolution of disputes arising therefrom and a

provision for adjudicating them, the Act does not make the'

declaration required by Entry 56. This is obviously not an

accidental omission but a deliberate disregard of the Entry

since it is not applicable to the subject-matter of the

legislation. Thirdly, no Entry in either of the three Lists

refers specifically to the adjudication of disputes with

regard to inter-State river waters.

The reason why none of the Entries in the Seventh Sched-

ule mention the topic of adjudication of disputes relating

to the inter-State river waters is not far to seek. Article

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262 of the Constitution specifically provides for such

adjudication. The Article appears under the heading "Dis-

putes relating to Waters", and reads as follows:

"262. Adjudication of disputes relating to

waters of interState rivers or river valleys.-

*******************************************

(1) Parliament may by law provide for the

adjudication of any dispute or complaint with

respect to the use, distribution or control of

the waters of, or in, any inter-State river or

river valley.

(2) Notwithstanding anything in this

Constitution, Parliament may by law provide

that neither the Supreme Court nor any other

court shall exercise jurisdiction in respect

of any such dispute or complaint as is re-

ferred to in clause (1)."

An analysis of the Article shows that an exclusive power

is given to the Parliament to enact a law providing for the

adjudication of such disputes. The disputes or complaints

for which adjudication may be provided relate to the "use,

distribution or control" of the waters of, or in any inter-

State river or river valley. The words "use", "distribution"

and "control" are of wide import and may include regulation

and development of the said waters. The provisions clearly

indicate the amplitude of the scope of adjudication inasmuch

as it would take within its sweep the determination of the

extent, and the manner, of the use of the said waters, and

the power to give directions in respect of the same. The

language of the Article has, further to be distinguished

from that of Entry 56 and Entry 17. Whereas Article 262 (1)

speaks of adjudication of any dispute or complaint and that

too with respect to the use, distribution or control of the

waters of or

548

in any inter-State river or river valleys, Entry 56 speaks

of regulation and development of inter-State rivers and

river valley. Thus the distinction between Article 262 and

Entry 56 is that whereas former speaks of adjudication of

disputes with respect to use, distribution or control of the

waters' of any inter-State river or river valley, Entry 56

speaks of regulation and development of inter-State rivers

and river valleys. (Emphasis supplied). Entry 17 likewise

speaks of water, that is to say, water supplies, irrigation

and canals, drainage and embankments, water storage and

water power subject to the provisions of Entry 56. It does

not speak either of adjudication of disputes or of an

inter-State river as a whole as indeed it cannot, for a

State can only deal with water within its territory. It is

necessary to bear in mind these distinctions between Article

262, Entry 56 and Entry 17 as the arguments and counter-

arguments on the validity of the Ordinance have a bearing on

them.

12. We have already pointed out another important aspect of

Article 262, viz., Clause (2) of the Article provides that

notwithstanding any other provision in the Constitution,

Parliament may by law exclude the jurisdiction of any court

including the Supreme Court in respect of any dispute or

complaint for the adjudication of which the provision is

made in such law. We have also noted that Section 11 of the

Inter-State Water Disputes Act makes such a provision.

13. The said Act, as its preamble shows, is an Act to pro-

vide for the "adjudication of disputes relating to waters of

inter-State rivers and river valleys". Clause (c) of Section

2 of the Act defines "water dispute" as follows:

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"2. In this Act, unless the context otherwise

requires,-

(a)...................

(b).............

(c) "water dispute" means any dispute or

difference between two or more State Govern-

ments with respect to

(i) the use, distribution or control of

the waters of, or in, any inter-State river or

river valley; or

(ii) the interpretation of the terms of

any agreement relating to the use, distribu-

tion or control of such waters or the imple-

mentation of such agreement; or

(iii) the levy of any water rate in

contravention of the prohibition contained in

section 7"

549

Section 3 of the Act states that if it appears to the

Government of any State that the water dispute with the

Government of another State of the nature stated therein,

has arisen or is likely to arise, the State Government may

request the Central Government to refer the water dispute to

a Tribunal for adjudication. Section 4 of the Act provides

for the constitution of a Tribunal when a request is re-

ceived for referring the dispute to a Tribunal and the

Central Government is of the opinion that the water dispute

cannot be settled by negotiations. Section 5 of the Act

requires the Tribunal to investigate the matter referred to

it and forward to the Central Government the report of its

findings and its decision. The Central Government has then

to publish the decision under Section 6 of the Act which

decision is final and binding on the parties to the dispute

and has to be given effect to by them. These dominant provi-

sions, among others, of the Act clearly show that apart from

its title, the Act is made by the Parliament pursuant to the

provisions of Article 262 of the Constitution specifically

for the adjudication of the disputes between the riparian

States with. regard to the use, distribution or control of

the waters of the inter-State rivers or river valleys. The

Act is not relatable to Entry 56 and, therefore, does not

cover either the field occupied by Entry 56 or by Entry 17.

Since the subject of adjudication of the said disputes is

taken care of specifically and exclusively by Article 262,

by necessary implication the subject stands excluded from

the field covered by Entries 56 and 17. It is not, there-

fore, premissible either for the Parliament under Entry 56

or for a State legislature under Entry 17 to enact a legis-

lation providing for adjudication of the said disputes or in

any manner affecting or interferring with the adjudication

or adjudicatory process of the machinery for adjudication

established by law under Article 262. This is apart from the

fact that the State legislature would even otherwise be

incompetent to provide for adjudication or to affect in any

manner the adjudicatory process or the adjudication made in

respect of the inter-State river waters beyond its territory

or with regard to disputes between itself and another State

relating to the use, distribution or control of such waters.

Any such act on its part will be extraterritorial in nature

and, therefore, beyond its competence.

14. Shri Venugopal has in this connection urged that it is

Entry 97 of the Union List which deals with the topic of the

use, distribution and control of waters of an inter-State

river. The use, distribution and control of the waters of

such rivers, by itself is not a topic which is covered by

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Article 262. It is also, according to him, not a topic

covered by Entry 56 which only speaks of regulation and

development of inter-State rivers and river valleys meaning

thereby the entirety of the rivers and river valleys and not

the waters at or in a particular place (emphasis supplied).

Further, the regulation and development, according to him,

has nothing to do with the

550

use, distribution or allocation of the waters of the inter-

State river between different riparian States. That topic

should, therefore, be deemed to have been covered by the

said residuary Entry 97.

With respect to the learned counsel, it is not possible

to accept this interpretation of the Entry 97. This is so

firstly because, according to us, the expression "regulation

and development of Inter-State rivers and river valleys" in

Entry 56 would include the use, distribution and allocation

of the waters of the inter-State rivers and river valleys

between different riparian States. Otherwise the intention

of the Constituent Assembly to provide for the Union to take

over the regulation and development under its control makes

no sense and serves no purpose. What is further, the River

Boards Act, 1956 which is admittedly eracted under Entry 56

for the regulation and development of inter-State rivers and

river valleys does cover the field of the use, distribution

and allocation of the waters of the inter-State rivers and

river valleys. This shows that the expression "regulation

and development" of the inter-State rivers and river valleys

in Entry 56 has legislatively also been construed to include

the use, distribution or allocation of the waters of the

inter-State rivers and river valleys between riparian

States. We are also of the view that to contain the opera-

tion of Entry 17 to the waters of an inter-State river and

river valleys within the boundaries of a State and to deny

the competence to the State legislature to interfere with or

to affect or to extend to the use, distribution and alloca-

tion of the waters of such river or river valley beyond its

territory, directly or indirectly, it is not necessary to

fail back on the residuary Entry 97 as an appropriate decla-

ration under Entry 56 would suffice. The very basis of a

federal Constitution like ours mandates such interpretation

and would not bear an interpretation to the contrary which

will destroy the constitutional scheme and the Constitution

itself. Although, therefore, it is possible technically to

separate the "regulation and development" of the inter-State

river and river valley from the "use, distribution and

allocation" of its water, it is neither warranted nor neces-

sary to do so.

The above analysis of the relevant legal provisions

dealing with the inter-State rivers and river valleys and

their waters shows that the Act, viz., the Inter-State Water

Disputes Act, 1956 can be enacted and has been enacted only

under Article 262 of the Constitution. It has not been

enacted under Entry 56 as it relates to the adjudication of

the disputes and with no other aspect either of the inter-

State river as a whole or of the waters in it.

15. It will be pertinent at this stage also to note the true

legal position about the inter-State river water and the

rights of the riparian States to the

551

same. In State of Kansas v. State of Colorado, [206] US 46

the Supreme Court of the United States has in this connec-

tion observed as follows:

"One cardinal rule, underlying all the rela-

tions of the States to each other, is that of

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equality of right. Each State stands on the

same level with all the rest. It can impose

its own legislation on no one of the others

and is bound to yield its own view to none".

" ...... the action of one State reaches,

through the agency of natural laws into the

territory of another State, the question of

the extent and the limitation of the rights of

the two States becomes a matter of justiciable

dispute between them ... this court is called

upon to settle that dispute in such a way as

will recognise the equal rights of both and at

the same time establish justice between them".

"The dispute is of a justiciable nature to be

adjudicated by the Tribunal and is not a

matter for legislative jurisdiction of one

State...".

"The right to flowing water is now well set-

tled to be a right incident to property in the

land; it is a right publici juris, of such

character that, whilst it is common and equal

to all through whose land it runs, and no one

can obstruct or divert it, yet as one of the

beneficial gifts of Providence, each proprie-

tor has a right to a just and reasonable use

of it, as it passes through his land, and so

long as it is not wholly obstructed or divert-

ed, or no larger appropriation of the water

running through it is made than a just and

reasonable use, it cannot be said to be wrong-

ful or injurious to a proprietor lower down".

"The right to the use of the flowing water is

publici juris, and common to all the riparian

proprietors; it is not an absolute and exclu-

sive right to all the water flowing past their

land so that any obstruction would give a

cause of action; but it is a right to the flow

and enjoyment of the water subject to a simi-

lar right in all the proprietors to the rea-

sonable enjoyment of the same gift of provi-

dence. It is therefore only for an

abstraction and deprivation of this common

benefit or for an unreasonable and unautho-

rised use of it that an action will lie."

16. Though the waters of an inter-State river pass through

the territories of the riparian States such waters cannot be

said to be located in any one

522

State. They are in a state of flow and no State can claim

exclusive ownership of such waters so as to deprive the

other States of their equitable share. Hence in respect of

such waters, no State can effectively legislate for the use

of such waters since its legislative power does not extend

beyond its territories. It is further an acknowledged prin-

ciple of distribution and allocation of waters between the

riparian States that the same has to be done on the basis of

the equitable share of each State. What the equitable share

will be will depend upon the facts of each case. It is

against the background of these principles and the provi-

sions of law we have already discussed that we have to

examine the respective contentions of the parties.

17. The Ordinance is unconstitutional because it affects the

jurisdiction of the Tribunal appointed under the Central

Act, viz., the Inter-State Water Disputes Act which legisla-

tion has been made under Article 262 of the Constitution. As

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has been pointed out above, while analysing the provisions

of the Ordinance, its obvious purpose is to nullify the

effect of the interim order passed by the Tribunal on 25th

June, 1991. The Ordinance makes no secret of the said fact

and the written statement filed and the submissions made on

behalf of the State of Karnataka show that since according

to the State of Karnataka the Tribunal has no power to pass

any interim order or grant any interim relief as it has done

by the order of 25th June, 1991, the order is without juris-

diction and. therefore, void ab initio. This being so. it is

not a decision, according to Karnaaka, within the meaning of

Section 6 and not binding on it and in order to protect

itself against the possible effects of the said order, the

Ordinance has been issued. The State of Karnataka has thus

arrogated to itself the power to decide unilaterally whether

the Tribunal has jurisdiction to pass the interim order or

not and whether the order is binding on it or not. Secondly,

the State has also presumed that till a final order is

passed by the Tribunal, the State has the power to appropri-

ate the waters of the river Cauvery to itself unmindful of

and unconcerned with the consequences of such action on the

lower riparian States. Karnataka has thus presumed that it

has superior rights over the said waters and it can deal

with them in any manner in the process, the State of Karna-

taka has also presumed that the lower ripar in States have

no equitable rights and it is the sole judge as to the share

of the other riparian States in the said waters. What is

further, the State of Karnataka has assumed the role of a

judge in its own cause. Thus, apart from the fact that the

Ordinance directly nullifies the decision of the Tribunal

dated 25th June, 1991. it also challenges the decision dated

26th April, 1991 of this Court which has ruled that the

Tribunal had power to consider the question of granting

interim relief since it was specifically referred to it. The

Ordinance further has an extra-territorial

553

operation insasmuch as it interferes with the equitable

rights of Tamil Nadu and Pondicherry to the waters of the

Cauvery river. To the extent that the Ordinance interferes

with the decision of this Court and of the Tribunal appoint-

ed under the Central legislation, it is clearly unconstitu-

tional being not only in direct conflict with the provisions

of Article 262 of the Constitution under which the said

enactment is made but being also in conflict with the judi-

cial power of the State.

In this connection, we may refer to a decision of this

Court in Municipal Corporation of the City of Ahmedabad etc.

v. New Shorock Spg. & Wvg. Co., Ltd. etc., [1971] 1 SCR 288.

The facts in this case were that the High Court as well as

this Court had held that property tax collected for certain

years by the Ahmedabad Municipal Corporation was illegal. In

order to nullify the effect of the decision, the State

Government introduced Section 152A by amendment to the

Bombay Provincial Municipal Corporation Act the effect of

which was to command the Municipal Corporation to refuse to

refund the amount illegally collected despite the orders of

this Court and the High Court. This Court held that the said

provision makes a direct in road into the judicial powers of

the State. The legislatures under the Constitution have,

within the prescribed limits, power to make laws prospec-

tively as well as retrospectively. By exercise of those

powers a legislature can remove the basis of a decision

rendered by a competent court thereby rendering the decision

ineffective. But no legislature in the country has power to

ask the instrumentalities of the State to disobey or disre-

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gard the decisions given by the courts. Consequently, the

provisions of sub-section (3) of section 152A were held

repugnant to the Constitution and were struck down. To the

same effect is another decision of this court in Madan Mohan

Pathak v. Union of India & Ors. etc., [1978] 3 SCR 334. In

this case a settlement arrived at between the Life Insurance

Corporation and its employees had become the basis of a

decision of the High Court of Calcutta. This settlement was

sought to be scuttled by the Corporation on the ground that

they had received instructions from the Central Government

that no payment of bonus should be made by the Corporation

to its employees without getting the same cleared by the

Government. The employees, therefore, moved the High Court,

and the High Court allowed the petition. Against that, a

Letters Patent Appeal was filed and while it was pending,

the Parliament passed the Life Insurance Corporation (Modi-

fication of Settlement) Act, 1976 the effect of which was to

deprive the employees of bonus payable to them in accordance

with the terms of the settlement and the decision of the

Single Judge of the High Court. On this amendment of the

Act, the Corporation withdrew its appeal and refused to pay

the bonus. The employees having approached this Court chal-

lenging the constitutional validity of the said

554

legislation, the Court held that it would be unfair to adopt

legislative procedure to undo a settlement which had become

the basis of a decision of the High Court. Even if legisla-

tion can remove the basis of a decision, it has to do it by

alteration of general rights of class but not by simply

excluding the specific settlement which had been held to be

valid and enforceable by a High Court. The object of the Act

was in effect to take away the force of the judgment of the

High Court. The rights under the judgment would be said to

arise independently of Article 19 of the Constitution.

Yet another decision of this Court on the point is P.

Sambamurthy & Ors. etc. etc. v. State of Andhra Pradesh &

Anr., [1987] 1 SCR 879. In this case what was called in

question was the insertion of Article 371 -D of the Consti-

tution. Clause (5) of the Article provided that the order of

the Administrative Tribunal finally disposing of the case

would become effective upon its confirmation by the State

Government or on the expiry of three months from the date on

which the order was made, whichever was earlier. The proviso

to the clause provided that the State Government may by

special order made in writing for reasons to be specified

therein, modify or annul any order of the Administrative

Tribunal before it became effective and in such a case the

order of the Tribunal shall have effect only in such modi-

fied form or be of no effect. This court held that it is a

basic principle of the rule of law that the exercise of

power by the executive or any other authority must not only

be conditioned by the Constitution but must also be in

accordance with law, and the power of judicial review is

conferred by the constitution with a view to ensuring that

the law is observed and there is compliance with the re-

quirement of the law on the part of the executive and other

authorities. It is through the power of judicial review

conferred on an independent institutional authority such as

the High Court that the rule of law is maintained and every

organ of the State is kept within the limits of the law. If

the exercise of the power of judicial review can be set at

naught by the State Government by overriding the decision

given against it. it would sound the death-knell of the rule

of law. The rule of law would be meaningless as it would be

open to the State Government to defy the law and yet get

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away with it. The proviso to el. (5) of Art. 37 I-D was

therefore, violative of the basic structure doctrine.

The principle which emerges from these authorities is

that the legislature can change the basis on which a deci-

sion is given by the Court and thus change the law in gener-

al which will affect a class of persons and events at large.

It cannot, however, set aside an individual decision inter-

parties and affect their rights and liabilities alone. Such

an act on the part

555

of the legislature amounts to exercising the judicial power

of the State and to functioning as an appellate court or

Tribunal.

The effect of the provisions of section 11 of the

present Act, viz., the Inter-State Water Disputes Act read

with Article 262 of the Constitution is that the entire

judicial power of the State and, therefore, of the courts

including that of the Supreme Court to adjudicate upon

original dispute or complaint with respect to the use,

distribution or control of the water of, or in any inter-

State river or river valleys has been vested in the Tribunal

appointed under Section 4 of the said Act. It is, therefore,

not possible to accept the submission that the question of

grant of interim relief falls outside the purview of the

said provisions and can be agitated under Article 131 of the

Constitution. Hence any executive order or a legislative

enactment of a State which interferes with the adjudicatory

process and adjudication by such Tribunal is an interference

with the judicial power of the State. In view of the fact

that the Ordinance in question seeks directly to nullify the

order of the Tribunal passed on 25th June, 1991, it impinges

upon the judicial power of the State and is, therefore,

ultra vires the Constitution.

Further, admittedly, the effect of the Ordinance is to

affect the flow of the waters of the river Cauvery into the

territory of Tamil Nadu and pondicherry which are the lower

riparian States. The Ordinance has, therefore, an extra-

territorial operation. Hence the Ordinance is on that ac-

count beyond the legislative competence of the State and is

ultra vires the provisions of Article 245 (1) of the Consti-

tution.

The Ordiance is also against the basic tenets of the

rule of law inasmuch as the State of Karnataka by issuing

the Ordinance has sought to take law in its own hand and to

be above the law. Such an act is an invitation to lawless-

ness and anarchy, inasmuch as the Ordinance is a manifesta-

tion of a desire on the part of the State to be a judge in

its own cause and to defy the decisions of the judicial

authorities. The action forebodes evil consequences to the

federal structure under the Constitution and opens doors for

each State to act in the way it desires disregarding not

only the rights of the other States, the orders passed by

instrumentalities constituted under an Act of Parliament but

also the provisions of the Constitution. If the power of a

State to issue such an Ordinance is upheld it will lead to

the break down of the Constitutional mechanism and affect

the unity and integrity of the nation.

18. In view of our findings as above on the unconstitution-

ality of the Ordinance, it is not necessary for us to deal

with the contention advanced

556

on behalf of Tamil Nadu and Pondicherry that the Ordinance

is unconstitutional also because it is repugnant to the

provisions of the River Boards Act, 1956 which is admittedly

enacted under Entry 56.

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19. We also do not propose to deal with the contentions

advanced on behalf of both sides with reference to Articles

19 (1) (g) and 21 of the Constitution. On behalf of Karnata-

ka the said Articles are invoked to support the Ordinance

contending that the Ordinance has been issued to protect the

fundamental rights of its inhabitants guaranteed to them by

the said Articles which rights were otherwise been denied by

the Tribunals' order of 25th June, 1991. As against it, it

was contended on behalf of Tamil Nadu that it was the Ordi-

nance which was designed to deny to its inhabitants the said

rights. Underlying the contentions of both is the presump-

tion that the Tribunal's order denies to Karnataka and

ensures to Tamil Nadu the equitable share in the river

water. To deal with the said contentions is, therefore, to

deal with the factual merits of the said order

which it is not for us to examine. Of the same genre are the

contentions advanced on behalf of Karnataka, viz., that

they"order creats new rights in favour of Tamil Nadu and

leads to inequitable consequences so far as Karnataka is

concerned. For the same reasons, we cannot deal with these

contentions either.

Question No. 3:

20. Question 3 is intimately connected with Question 2.

However, Question 3 itself has to be answered in two parts,

viz., whether a Water Disputes Tribunal constituted under

the Act is competent to grant any interim relief (i) when no

reference for grant of interim relief is made to the Tribu-

nal, and (ii) when such reference is made to it. It was

contended on behalf of Karnataka and Kerala that the answer

to the second part of the question will also depend upon the

answer to the first part. For if the Tribunal has no power

to grant interim relief, the Central Government would be

incompetent to make a reference for the purpose and the

Tribunal in turn will have no jurisdiction to entertain such

reference, even if made. And if the Tribunal has no power to

grant interim relief, then the order made by the tribunal

will not constitute a report and a decision within the

meaning of Section 5 (2) and hence it would not be required

to be published by the Central Government under Section 6 of

the Act in order to make it effective. Further if the Tribu-

nal has no such power to grant interim relief then the order

passed by the Tribunal on 25th June, 1991 will be void being

without jurisdiction and, therefore, to that extent the

Ordinance issued by the State of Karnataka will not be in

conflict with the provisions of the Act, viz., the Inter-

State Water Disputes Act, 1956.

557

21. This Court by its decision of April 26, 1991 has held,

as pointed out above, ,that the Central Government had made

a reference to the Tribunal for the :consideration of the

claim for interim relief prayed for by the State of Tamil

Nadu and hence the Tribunal had jurisdiction to consider the

said request being a part of the Reference itself. Implicit

in the said decision is the finding that the subject of

interim relief is a matter connected with or relevant to the

water dispute within the meaning of Section 5 (1) of the

Act. Hence the Central Government could refer the matter of

granting interim relief to the Tribunal for adjudication.

Although this Court by the said decision has kept open the

question, viz., whether the Tribunal has incidental, ancil-

lary, inherent or implied power to grant the interim relief

when no reference for grant of such relief is made to it, it

has in terms concluded the second part of the question. We

cannot, therefore, countenance a situation whereby Question

3 and for that matter Questions 1 and 2 may be so construed

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as to invite our opinion on the said decision of this Court.

That would obviously be tantamount to our sitting in appeal

on the said decision which it is impermissible for us to do

even in adjudicatory jurisdiction. Nor is it competent for

the President to invest us with an appellate jurisdiction

over the said. decision through a Reference under Article

143 of the Constitution.

Shri Nariman, however, contended that the President can

refer any question of law under Article 143 and, therefore,

also ask this Court to reconsider any of its decisions. For

this purpose, he relied upon the language of clause (1) of

Article 143 which is as follows:

"143. Power of president to consult Supreme

Court(1) If at any time it appears to the

President that a question of law or fact has

arisen, or is likely to arise, which is of

such a nature and of such public importance

that it is expedient to obtain the opinion of

the Supreme Court upon it, he may refer the

question to that Court for consideration and

the Court may, after such hearing as it thinks

fit, report to the President its opinion

thereon."

In support of his contention he also referred us to the

opinion expressed by this Court in re: The Delhi Laws Act,

1912, The Ajmer-Merwara (Extension of Laws) act, 1947 and

the Part C States (Laws) Act, 1950 [1951] SCR 747. For the

reasons which follow, we are unable to accept this conten-

tion. In the first instance, the language of clause (1) of

Article 143 far from supporting Shri Nariman's contention is

opposed to it. The said clause empowers the President to

refer for this Court's opinion a question of law or fact

which has arisen or is likely to arise. When this

558

Court in its adjudicatory jurisdiction pronounces its au-

thoritative opinion on a question of law it cannot be said

that there is any doubt about the question of law of the

same is res integra so as to require the President to know

what the true position of law on the question is. The deci-

sion of this Court on a question of law is binding on all

courts and authorities. Hence under the said clause the,

President can refer a question of law only when this Court

has not decided it. Secondly, a decision given by this Court

can be reviewed only under Article 137 read with Rule 1 of

Order XL of the Supreme Court Rules 1966 and on the condi-

tions mentioned therein. When, further, this Court overrules

the view of law expressed by it in an earlier case, it does

not do so sitting in appeal and exercising an appellate

jurisdiction over the earlier decision. It does so in exer-

cise of its inherent power and only in exceptional circum-

stances such as when the earlier decision is per incuriam or

is delivered in the absence of relevant or material facts or

if it is manifestly wrong and productive of public mischief.

See: The Bengal Immunity Company Ltd. v. The Stale of Bihar

& Ors., [1955] 2 SCR 603. Under the Constitution such appel-

late jurisdiction does not vest in this Court; nor can it be

vested in it by the President under Article 143. To accept

Shri Nariman's contention would mean that the advisory

jurisdiction under Article 143 is also an appellate juris-

diction of this Court over its own decision between the same

parties and the executive has a power to ask this Court to

revise its decision. If such power is read in Article 143 it

would be a serious inroad into the independence of judici-

ary.

So far as the opinion expressed by this Court in re The

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Delhi Laws Act, 1912 (supra) is concerned, as the Reference

itself makes clear, what was referred was a doubt expressed

by the President on the decision of the Federal Court in

Jatindra Nath Gupta v. The Province of Bihar & Ors., [1949]

FCR 595 which was delivered on 20th May, 1949. The Federal

Court at that time was not the apex court. Upto 10th Octo-

ber, 1949, the appeals from its decisions lay to the Privy

Council including the appeal from the decision in question.

The decisions of the Federal Court were not binding on the

Supreme Court as held in Hari Vishnu Kamath v. Syed Ahmad

Ishaque & Ors., [1955] 1 SCR 1104. Hence it was not a case

where the President had referred to this Court for its

opinion a decision which had become a law of the land. Hence

the case in re The Delhi Laws Act. 1912 (supra) does not

support the contention.

The provisions of clause (2) of Article 374 of the

Constitution also do not help Shri Nariman's contention

since the said provisions relate to the transitional period

and the "judgments and orders of the Federal Court" referred

to therein are obviously the interim judgments and orders in

the

559

suits, appeals and proceedings pending in the Federal Court

at the commencement of the Constitution and which stood

transferred to the Supreme Court thereafter. This is also

the view taken by a Division Bench of Bombay High Court in

State of Bombay v. Gajanan Mahadev Badley, AIR [1954] Bombay

351. This view has been confirmed by this Court in Delhi

Judicial Service Association, Tis Hazari Court, Delhi etc.

v. State of Gujrat & Ors. etc. JT 1991 (3) SC 617. Para-

graphs 32 to 37 of the judgment deal with this subject

specifically.

22. Both Shri Parasaran and Shri Venugopal requested us not

to answer the first part of Question 3 on the ground that

the said part of the question is purely theoretical and

general in nature, and any answer given would be academic

because there will be no occasion to make any further inter-

im order or grant another interim relief in this Reference.

According to him, the recitals of the order of Reference

have bearing only on Questions 1 and 2, and the second part

of Question 3. They have no bearing on the first part of

Question 3 and since the Reference has been made in the

context of particular facts which have no connection with

the theoretical part of Question 3, the same should be

returned unanswered as being factually unwarranted.

23. On behalf of karnataka and Kerala, however as pointed

out above, it was urged that we should answer the said part

of the question for the reasons stated there. Shri Shanti

Bhushan in this connection relied upon the decision of this

Court in A.R. Antulay v.R.S Nayak & Anr,. [1988] Suppl. 1

SCR 1. He pointed out that by the said decision the direc-

tions given by this Court in its earlier decision were held

to be void being without jurisdiction and the same were

quashed. In view of this precedent he submitted that a

similar course is open to this Court and the decision

dated April 26,1991 given by this Court may also be declared

as being without jurisdiction and void. In A.R. Antulay's

case (supra) two questions were specifically raised, viz.,

(i) whether the directions given by this Court in R.S. Nayak

v. A.R. Antulay, [1984] 2 SCR 495, (hereinafter referred to

as 'R.S Nayak's case') withdrawing the Special Case No.24 of

1982 and Special Case No.3 of 1983 arising out of a com-

plaint filed by a private individual pending in the court of

Special Judge, Greater Bombay and transferring the same to

the High Court of Bombay in breach of Section 7 (1) of the

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Criminal Law Amendment Act, 1952 (which mandates that the

offences as in the said case shall be tried by a Special

Judge only) thereby denying at least one right of appeal to

the appellant, was violative of Articles 14 and 21 of the

Constitution and whether such directions were at all valid

or legal and, (ii) if such directions were not valid or

legal, whether in view of the subsequent orders passed by

this

560

Court on 17th of April, 1984 in a writ petition challenging

the validity of the order and judgment of this Court in R.S.

Nayak's case whereby this Court had dismissed the writ

petition without prejudice to the right of the petitioner 10

approach this Court with an appropriate review petition or

to file any other application which he may be entitled in

law to file, the appeal filed was sustainable and the

grounds of the appeal were justiciable. The latter question

was further explained by stating that the question was

whether the directions given in R.S. Navak's case in a

proceedings interparties were binding even if bad in law or

violative of Articles 14 and 21 of the Constitution and as

such were immune from correction by this Court even though

they caused prejudice and did injury. It may be stated here

that the said proceedings had come before this Court by way

of a special leave petition against an order passed by the

learned Judge of the High Court to whom the said case came

to be assigned subsequently in pursuance of the directions

given in R.S. Nayak's case. By the order passed by the

learned judge, as many as 79 charges were framed against the

appellant and it was decided not to proceed against other

named coconspirators. In the special leave petition filed to

challenge the said order, two questions which we have stated

above were raised and leave was granted. This Court in that

case held that (i) the directions given by this Court in

R.S. Nayak's case were violative of the limits of jurisdic-

tion of this Court since this Court could not confer juris-

diction on a High Court which was exclusively vested in the

Special Judge under the provisions of the criminal Law

Amendment Act of 1952; (ii) the said directions deprived the

appellant of his fundamental rights guaranteed under Arti-

cles 14 and 21 of the Constitution since the appellant had

been treated differently from other offenders and he was

deprived of a right of appeal to the High Court; (iii) the

directions were issued without observing the principle of

audi alteram partem and (iv) the decision given was per

incuriam. Shri Shanti Bhushan urged that since in that case

this Court had quashed its own earlier directions on the

ground that the High Court had no jurisdiction to try the

offence and this Court could not confer such jurisdiction on

it, in the present case also the decision of the Court dated

April 26, 1991 may be ignored for having proceeded on the

basis that the Tribunal had jurisdiction to pass interim

relief when it had no such jurisdiction.

We are afraid that the facts in A.R. Antulay's case

(supra) are peculiar and the decision has to be confined to

those special facts. As this court has pointed out in the

said decision, in the first instance, the directions which

were given for withdrawing the case from the Special Judge

to the High Court were without hearing the appellant. Those

directions deprived the appellant of a right of appeal to

the High Court and thus were prejudicial to him. There was,

therefore, a manifest breach of the

561

rule of audi alteram paneto. Secondly, while giving the

impugned directions, the Court had not noticed that under

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the said Act of 1952, the Special Judge had an exclusive

jurisdiction to try the offence in question and this being a

legislative provision, this court could not confer the said

jurisdiction on the High Court. The Court also pointed out

that to the extent that the case was withdrawn from the

Special Judge find sent to the High Court, both Articles

14 and 21 were violated. The appellant was discriminated

against and the appellant's right of appeal which was an

aspect of Article 21 was affected. It would, thus, appear

that not only the directions given by this Court were with-

out jurisdiction but they were also per incuriam and in

breach of the principles of natural justice. They were

further violative of the appellant's fundamental rights

under Articles 14 and 21 of the Constitution. None of the

said defects exists in the decision of this Court dated

April 26, 1991. It cannot be said that this Court had not

noticed the relevant provisions of the Inter-State Water

Disputes Act The Court after perusing the relevant provi-

sions of the Act which were undoubtedly brought to its

notice, has come to the conclusion that the Tribunal had

jurisdiction to grant interim relief when the question of

granting interim relief formed part of the Reference. There

is further no violation of any of the principles of natural

justice or of any provision of the Constitution. The deci-

sion also does not transgress the limits of the jurisdiction

of this Court. We are, therefore, of the view that the

decision being inter-parties operates as res judicata on the

said point and it cannot be reopened.

24. We, however, agree with the contention that it is not

necessary to answer the first part of Question 3. The con-

text in which all the questions are referred to as and the

preamble of the Reference amply bear out that the questions

have been raised against the background a particular set of

facts. These facts have no bearing on the first part of

Question 3 which is theoretical in nature. It is also legit-

imate to conclude that this part of the question was not

prompted by the need to have a theoretical answer to compre-

hend situations in general. Our answer to the second part of

the question should meet the exigencies of the situation.

Question No. 2:

25. Coming now to Question 2, although the question is split

into two parts, they deal with the same aspect of the sub-

ject inasmuch as the answer to the first part would automat-

ically answer the second part of the question. This situa-

tion, like the first question, relates to the specific order

of the Tribunal dated June 25, 1991. Hence, our opinion will

have to be he legal merits of the said order.

562

Sub-section (1) of Section 5 expressly empowers the

Central Government to refer to the Tribunal not only the

main water dispute but any matter appearing to be connected

with or relevant to it. It cannot be disputed that a request

for an interim relief whether in the nature of mandatory

direction or prohibitory order, whether for the maintenance

of status quo or for the grant of urgent relief or to pre-

vent the final relief being rendered infructuous, would be a

matter connected with or relevant to the main dispute. In

fact, this Court, by its said decision of April 26, 1991,

has in terms held that the request of the State of Tamil

Nadu for granting interim relief had been referred by the

Central Government to the Tribunal and directed the Tribunal

to consider the request on merits, the same being a part of

the Reference. Hence the order of the Tribunal will be a

report and decision within the meaning of Section 5 (2) and

would have, therefore, to be published under Section 6 of

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the Act in order to make it effective.

26. One of the contentions advanced in this behalf was

that the Order of the Tribunal dated June 25, 1991 does not

purport to be and does not state to be a report and deci-

sion. It only states that it is an order. Secondly, the said

order cannot be report and decision within the meaning of

Section 5 (2) of the Act because: (i) the Tribunal can make

report only after final adjudication of the dispute and

there cannot be adjudication without investigation. There is

no provision for interim investigation and interim finding

and report; (ii) the Tribunal could not have made the report

because its own showing: (a) pleadings were not complete,

parties had not yet placed on record all their documents and

papers etc.; (b) there was no investigation of the matters,

the investigation could have been done only after disclosure

of documents followed by a detailed hearing, the evidence

and arguments of the parties and judicial finding in conso-

nance with natural justice; (c) the assessors appointed to

assess on the technical matters conducted their proceedings

without consultation with the engineers of the State. Some-

times the engineers of Tamil Nadu were called for consulta-

tion in the absence of engineers of Karnataka. The summoning

of documents and information by the assessors was also

casual and did not conform to the principles of natural

justice and fair-play. A copy of the advice given by the

assessors to the members of the Tribunal was not made avail-

able to the parties; (d) the Tribunal has stated "at this

stage it would not be feasible nor reasonable to determine

how to satisfy the needs of each State to the greatest

possible extent with the minimum detriment to others". Such

an approach is contrary to the concept of an investigation

contemplated by the Act and hence no interim order for

interim relief could be made on such investigation not

contemplated under the Act before making any order; (ii) it

is only the decision which find

563

support from the report of the Tribunal which in turn must

be the result of a full and final investigation in full

which is required to be published under Section 6 of the Act

and not an order such as the one passed by the Tribunal. The

present order is neither a decision nor an adjudication and

hence cannot be published.

27. The contention that since the Order does not say that it

is a report and decision and, therefore, it is not so under

Section 5(2) of the Act is to say the least facetious.

Either the Order is such a report and decision because of

its contents or not so at all. If the contents do not show

that it is such a report, it will not become one because the

Order states so. As is pointed out a little later the con-

tents of the Order clearly show that it is a report and a

decision within the meaning of Section 5(2).

Some of the aforesaid submissions relate to the merits

of the Order passed and its consequences rather than to the

jurisdiction and the power of the Tribunal to pass the said

Order. While giving our opinion on the present question, we

are not concerned with the merits of the order and with the

question whether there was sufficient material before the

Tribunal, whether the Tribunal had supplied the copies of

the advice given by the assessor to the respective parties

and whether it had heard them on the same before passing the

Order in question. The limited question we are required to

answer is whether the order granting interim relief is a

report and a decision within the meaning of Section 5(2) and

is required to be published in the official Gazette under

Section 6 of the Act. It is needless to observe in this

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connection that the scope of the investigation that a Tribu-

nal or a court makes at the stage of passing an interim

order is limited compared to that made before making the

final adjudication. The extent and the nature of the inves-

tigation and the degree of satisfaction required for grant-

ing or rejecting the application for interim relief would

depend upon the nature of the dispute and the circumstances

in each case. No hard and fast rule can be laid down in this

respect. However, no Tribunal or court is prevented or

prohibited from passing interim order on the ground that it

does not have at that stage all the material required to

take the final decision. To read such an inhibition in the

power of the Tribunal or a court is to deny to it the power

to grant interim relief when Reference for such relief is

made. Hence, it will have to be held that the Tribunal

constituted under the Act is not prevented from passing an

interim order or direction, or granting an interim relief

pursuant to the reference merely because at the interim

stage it has not carried out a complete investigation which

is required to be done before it makes its final report and

gives its final decision. It can pass interim orders on such

material as according to it is appropriate to the nature of

the interim order.

564

28. The interim orders passed or reliefs granted by the

Tribunal when they are not of purely procedural nature and

have to be implemented by the parties to make them effec-

tive, are deemed to be a report and a decision within the

meaning of Sections 5 (2) and 6 of the Act. The present

Order of the Tribunal discusses the material on the basis of

which it is made and gives a direction to the State of

Karnataka to release water from its reservoirs in Karnataka

so as to ensure that 205 TMC of water is available in Tamil

Nadu's Mettur reservoir in a year from June to May. It makes

the order effective from 1st July, 1991 and also lays down

time-table to regulate the release of water from month to

month. It also provides for adjustment of the supply of

water during the said period. It further directs the State

of Tamil Nadu to deliver 6 TMC of water for the Karaikal

region of the Union Territory of Pondicherry. In addition,

it directs the State of Karnataka not to increase its area

under irrigation by the waters of the river Cauvery beyond

the existing 11.2 lakh acres. It further declares that it

will remain operative till the final adjudication of the

dispute. Thus the Order is not meant to be merely declarato-

ry in nature but is meant to be implemented and given effect

to by the parties. Hence, the order in question constitutes

a report and a decision within the meaning of Section 5 (2)

and is required to be published by the Central Government

under Section 6 of the Act in order to be binding on the

parties and to make it effective.

29. The contention that Section 5 (3) of the Act cannot

apply to the interim orders as it is only the final decision

which is meant to undergo the second reference to the Tribu-

nal provided for in it has no merit. If the Tribunal has, as

held above, power to make an interim decision when a refer-

ence for the same is made, that decision will also attract

the said provisions. The Central Government or any State

Government after considering even such decision may require

an explanation or guidance from the Tribunal as stated in

the said provisions and such explanation and guidance may be

sought within three months from the date of such decision.

The Tribunal may then reconsider the decision and forward to

the Central Government a further report giving such explana-

tion or guidance as it deems fit. In such cases it is the

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interim decision thus reconsidered which has to be published

by the Central Government under Section 6 of the Act and

becomes binding and effective. We see, therefore, no reason

why the provisions of Section 5(3) should prevent or inca-

pacitate the Tribunal from passing the interim order. Once a

decision, whether interim or final, is made under Section

5(2) it attracts the provisions both of subSection (3) of

that Section as well as the provisions of Section 6 of the

Act.

30. As pointed out earlier, the present Order having been

made pursuant to the decision of this Court dated April 26,

1991 in C.As. Nos.303-04 of

565

1991 on a matter which was part of the Reference as held by

this Court in the said decision, cannot but be a report and

a decision under Section 5(2) and has to be published under

Section 6 of the Act to make it effective and binding on the

parties. This legal position of the said order is not open

for doubt. To question its efficacy under the Act would be

tantamount to flouting it.

31. Before concluding we may add that the question whether

the opinion given by this Court on a Presidential Reference

under Article 143 of the Constitution such as the present

one is binding on all courts was debated before us for a

considerable length of time. We are, however, of the view

that we need not record our opinion on the said question

firstly, because the question does not form part of the

Reference and secondly, any opinion we may express on it

would again be advisory in nature. We will, therefore, leave

the matter where it stands. It has been held adjudicatively

that the advisory opinion is entitled to due weight and

respect and normally it will be followed. We feel that the

said view which holds the field today may usefully continue

to do so till a more opportune time.

32. Our opinion on the questions referred to us is, there-

fore, as follows:.

Question No.1. The Karnataka Cauvery Basin Irrigation Pro-

tection Ordinance, 1991 passed by the Governor of Karnataka

on 25th July, 1991 (now the Act) is beyond the legislative

competence of the State and is, therefore, ultra vires the

Constitution.

Question No.2. (i) The Order of the Tribu-

nal dated June 25, 1991 constitutes report

and decision within the meaning of Section 5

(2) of the Inter-State Water Disputes

Act, 1956;

(ii) the said Order is, therefore,

required to be published by the Central Gov-

ernment in the official Gazette under Section

6 of the Act in order to make it effective.

Question No.3. (i) A Water Disputes Tribu-

nal constituted under the Act is competent to

grant any interim relief to the parties to the

dispute when a reference for such relief is

made by the Central Government;

(ii) whether the tribunal has power to

grant interim relief when no reference is made

by the Central

566

Government for such relief is

a question which does not arise in the facts

and circumstances under which the Reference

is made. Hence we do not deem it necessary to

answer the same.

N.P.V Reference answered..

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