CAUVERY ISSUE - SUPREME COURT JURISDICTION 16-Feb-2018

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2 J U D G M E N T Dipak Misra, CJI I N D E X S. No. Heading Page No. A. The proceedings in this Court in the present 6 Appeals B. Maintainability of the Appeals by Special 18 Leave C. Stand of all parties pertaining to remand of 21 the matter to the Tribunal after deliberation of the legal issues D. Reference of the dispute to the Tribunal 24 E. The initial proceedings before the Tribunal 29 F. The issue of Ordinance by the State of Karnataka and the Presidential Reference G. The genesis of the controversy 50 34 H. Doctrine of Paramountcy and its extinction on coming into force of the Indian Independence Act, 1947 I. Infraction of Article 363 and nonmaintainability of the dispute on the basis of agreements J. Unconscionability of the 1892 and 1924 agreements K. Status of the agreements after coming into force of the States Reorganization Act, 1956 74 108 133 147
3 L. Issue relating to expiry of the agreements <strong>16</strong>4 M. Did the complaint not require any adjudication? N. The approach adopted by the Tribunal post 1974 and correctness of the same O. The quintessence of pleadings before the Tribunal P. The findings of the Tribunal on various issues 179 183 197 215 P.1 Prescriptive rights and other claims 215 P.2 Breach of agreements of 1892 and 1924 and consequences thereof P.3 Peripheral issues qua claims of Kerala and Union Territory of Pondicherry (presently named as ―Puducherry‖) 217 219 P.4 Gross water available for apportionment 222 P.4(i) Surface flow of water 222 P.4(ii) Identification of dependable yield 228 P.4(iii) Additional source of water 231 P.5 The principles of apportionment 241 P.6 Determination of "irrigated areas" in Tamil Nadu and Karnataka P.7 Assessment of water for "irrigation needs" in Tamil Nadu and Karnataka P.8 Assessment of water for "Domestic and Industrial Purposes" in Tamil Nadu and 255 269 297
Page 1: REPORTABLE IN THE SUPREME COURT OF
Page 5 and 6: 5 X. Our findings on issues of allo
Page 7 and 8: 7 The said submissions shall be not
Page 9 and 10: 9 6. Per contra, Mr. Fali S. Narima
Page 11 and 12: 11 During the course of proceedings
Page 13 and 14: 13 The deponent had further submitt
Page 15 and 16: 15 situation of shortage of water a
Page 17 and 18: 17 suggested anything with regard t
Page 19 and 20: 19 Founding Fathers had not conferr
Page 21 and 22: 21 C. Stand of all parties pertaini
Page 23 and 24: 23 justice, took the same on record
Page 25 and 26: 25 of the 1956 Act. In the said com
Page 27 and 28: 27 referring the dispute to the Tri
Page 29 and 30: 29 ―No. 21/1/90-WD Government of
Page 31 and 32: 31 maintainable in law and, accordi
Page 33 and 34: 33 objections were again raised on
Page 35 and 36: 35 sought to negate the effect of t
Page 37 and 38: 37 Government may, by order, as occ
Page 39 and 40: 39 action taken thereunder, being c
Page 41 and 42: 41 arguments and we shall be dealin
Page 43 and 44: 43 (7) Is the State of Karnataka en
Page 45 and 46: 45 (20) What is the extent of addit
Page 47 and 48: 47 as per averments in paragraphs 3
Page 49 and 50: 49 (49) What directions, if any, sh
Page 51 and 52: 51 Having narrated the facts to thi
Page 53 and 54:
53 Resident could not accept the De
Page 55 and 56:
55 constructed within the Mysore St
Page 57 and 58:
57 final and should such compensati
Page 59 and 60:
59 to the maximum height of 124 fee
Page 61 and 62:
61 the impounding therein, shall be
Page 63 and 64:
63 interpretation or operation or c
Page 65 and 66:
65 WHEREAS on the 18th February 192
Page 67 and 68:
67 storage from Krishnarajasagar to
Page 69 and 70:
69 discussed with the Union Ministe
Page 71 and 72:
71 "(i) To collect all the connecte
Page 73 and 74:
73 (ii) To assess the availability
Page 75 and 76:
75 under an award given, or purport
Page 77 and 78:
77 terms. It was because of the uni
Page 79 and 80:
79 could not be maintained at the s
Page 81 and 82:
81 under Section 87(1) of the Reorg
Page 83 and 84:
83 aforesaid expressed by Hon‘ble
Page 85 and 86:
85 such agreement as is therein ref
Page 87 and 88:
87 into by the Government of India
Page 89 and 90:
89 And again:- ―Such cases can on
Page 91 and 92:
91 transferred to the new Governmen
Page 93 and 94:
93 agreements since they are relata
Page 95 and 96:
95 Meanwhile the Secretary of State
Page 97 and 98:
97 suggested to strengthen the Dam.
Page 99 and 100:
99 78. Be it noted, initially, the
Page 101 and 102:
101 by the Ruler of the Indian Stat
Page 103 and 104:
103 denouncement of the 1886 Lease
Page 105 and 106:
105 jurisdiction of this Court is b
Page 107 and 108:
107 is appositely read and understo
Page 109 and 110:
109 Majesty or the Government of th
Page 111 and 112:
111 agreements, treaties, covenants
Page 113 and 114:
113 General under Section 6 of the
Page 115 and 116:
115 subject only to the provisions
Page 117 and 118:
117 of Accession, and are wrongfull
Page 119 and 120:
119 Article 363 of the Constitution
Page 121 and 122:
121 concerned having arisen before
Page 123 and 124:
123 apply to it is incorrect. Accor
Page 125 and 126:
125 historical events as background
Page 127 and 128:
127 therefore within the province o
Page 129 and 130:
129 this Court under Article 32 to
Page 131 and 132:
131 102. Be it noted, the larger Be
Page 133 and 134:
133 without fear of any contradicti
Page 135 and 136:
135 the section now before us is ap
Page 137 and 138:
137 The dispute was not settled by
Page 139 and 140:
139 Where freedom of contract is ab
Page 141 and 142:
141 bargaining power between the pa
Page 143 and 144:
143 116. In Delhi Transport Corpora
Page 145 and 146:
145 2. Any dispute arising out of t
Page 147 and 148:
147 existed in 1892 or 1924 but def
Page 149 and 150:
149 (b) Belgaum district except Cha
Page 151 and 152:
151 Singh & Ors. 21 , Ranjan Sinha
Page 153 and 154:
153 administration of the new State
Page 155 and 156:
155 enacted in that behalf. Therefo
Page 157 and 158:
157 inasmuch as the newly created S
Page 159 and 160:
159 the terms and conditions of the
Page 161 and 162:
161 distribution of benefits to be
Page 163 and 164:
163 (2) Subject as aforesaid, the G
Page 165 and 166:
165 twice stated that both the agre
Page 167 and 168:
167 with the Rules of Regulation se
Page 169 and 170:
169 arrangement as set out in claus
Page 171 and 172:
171 Agreement after the expiry of 5
Page 173 and 174:
173 height of water level ranging b
Page 175 and 176:
175 the basis of the Agreement of 1
Page 177 and 178:
177 experience gained and upon exam
Page 179 and 180:
179 continued solely because of the
Page 181 and 182:
181 149. Relying on the said provis
Page 183 and 184:
183 Tribunal) (supra). In the backd
Page 185 and 186:
185 for irrigation are required to
Page 187 and 188:
187 made than a just and reasonable
Page 189 and 190:
189 (ii) The second view is based o
Page 191 and 192:
191 and apply the water so as to ca
Page 193 and 194:
193 (e) the economic and social nee
Page 195 and 196:
195 relevant factors are to be cons
Page 197 and 198:
197 165. The definition of ‗water
Page 199 and 200:
199 covering the areas of the new S
Page 201 and 202:
201 Nadu reiterated its demurral th
Page 203 and 204:
203 State has to be preserved more
Page 205 and 206:
205 food of the people. It asserted
Page 207 and 208:
207 Basin to which it was entitled.
Page 209 and 210:
209 Mysore State without previous r
Page 211 and 212:
211 of consent. In its turn, the Ma
Page 213 and 214:
213 any impounding was made in the
Page 215 and 216:
215 developments made in the differ
Page 217 and 218:
217 P.2 Breach of agreements of 189
Page 219 and 220:
219 adjudication. The Tribunal, on
Page 221 and 222:
221 water in the Kabini, Bhawani an
Page 223 and 224:
223 noted. It recorded that due to
Page 225 and 226:
225 Committee also reflected over t
Page 227 and 228:
227 190. The Tribunal, however, at
Page 229 and 230:
229 that the utilizable quantities
Page 231 and 232:
231 concluded that in view of the f
Page 233 and 234:
233 Water Resources, Government of
Page 235 and 236:
235 The Tribunal, adverting to the
Page 237 and 238:
237 and, thus not fully cognizable
Page 239 and 240:
239 marked the admission of the Sta
Page 241 and 242:
241 P.5 The principles of apportion
Page 243 and 244:
243 completely destructive of equit
Page 245 and 246:
245 remark that equitable apportion
Page 247 and 248:
247 Court in Kansas v. Colorado (su
Page 249 and 250:
249 England, 4 th Edition, Vol. 49(
Page 251 and 252:
251 stated that equitable apportion
Page 253 and 254:
253 Tribunals would have ample powe
Page 255 and 256:
255 equitable manner so as to serve
Page 257 and 258:
257 Having regard to the fact that
Page 259 and 260:
259 development as contemplated und
Page 261 and 262:
261 Keeping in view the shortfall i
Page 263 and 264:
263 prior to the 1924 Agreement, ir
Page 265 and 266:
265 Agreement till 1974 under Claus
Page 267 and 268:
267 hand, the parties had pursued t
Page 269 and 270:
269 in respect of areas requiring i
Page 271 and 272:
271 70,000 to 90,000 acres. It is w
Page 273 and 274:
273 already dealt with the same. We
Page 275 and 276:
275 226. Karnataka, in its statemen
Page 277 and 278:
277 losses, the percolated water wo
Page 279 and 280:
279 and useful areas was taken note
Page 281 and 282:
281 nature of crops which were grow
Page 283 and 284:
283 ft. to 5.9 ft. The following re
Page 285 and 286:
285 utilised to meet the in-basin r
Page 287 and 288:
287 respect of two categories of cr
Page 289 and 290:
289 236. The Tribunal took into acc
Page 291 and 292:
291 of the dissension between the t
Page 293 and 294:
293 that both the States had furnis
Page 295 and 296:
295 deltas so computed for main cro
Page 297 and 298:
297 requirement of Karnataka was co
Page 299 and 300:
299 1. Towns provided with piped wa
Page 301 and 302:
301 out of 100 units of water initi
Page 303 and 304:
303 population had been allowed 135
Page 305 and 306:
305 the industrial water requiremen
Page 307 and 308:
307 Environmental Engineering Resea
Page 309 and 310:
309 was the basic occupation of the
Page 311 and 312:
311 Karnataka based on the project
Page 313 and 314:
313 equitable share of a particular
Page 315 and 316:
315 (iv) Main crop in the low eleva
Page 317 and 318:
317 semi-dry and miscellaneous, ―
Page 319 and 320:
319 unutilized water from its share
Page 321 and 322:
321 compulsions, did not have any s
Page 323 and 324:
323 provision for irrigation water
Page 325 and 326:
325 was ordered that the same would
Page 327 and 328:
327 (10 TMC x 2) as advised by the
Page 329 and 330:
329 286. It was mentioned that the
Page 331 and 332:
331 287. Deducing therefrom and hav
Page 333 and 334:
333 TMC at 50% dependability which
Page 335 and 336:
335 allocation awarded to the parti
Page 337 and 338:
337 Cauvery Water Regulatory Commit
Page 339 and 340:
339 Clause-V The Tribunal hereby or
Page 341 and 342:
341 Pondicherry already in operatio
Page 343 and 344:
343 Clause-XIV Use of water shall b
Page 345 and 346:
345 (d) The ―irrigation season‖
Page 347 and 348:
347 Presidential Reference (Cauvery
Page 349 and 350:
349 S.2 Submission of Mr. S.S. Java
Page 351 and 352:
351 Parkinson (Works) Pvt. Ltd., Bo
Page 353 and 354:
353 or lesser rainfall resulted in
Page 355 and 356:
355 priority contrary to the rules
Page 357 and 358:
357 304. He further argued that Kar
Page 359 and 360:
359 construct a reservoir of 45 TMC
Page 361 and 362:
361 310. He submitted that the Trib
Page 363 and 364:
363 313. He then contended that the
Page 365 and 366:
365 Karnataka's entitlement for sec
Page 367 and 368:
367 considered at all. The evidence
Page 369 and 370:
369 He submitted that the river was
Page 371 and 372:
371 323. He also set out the three
Page 373 and 374:
373 for Karnataka's Kharif paddy ha
Page 375 and 376:
375 These resources were under-util
Page 377 and 378:
377 adhered to the 1924 Agreement t
Page 379 and 380:
379 months and, thus, such water co
Page 381 and 382:
381 that any shortfall could be adj
Page 383 and 384:
383 by adding irrigation components
Page 385 and 386:
385 facet of equitable apportionmen
Page 387 and 388:
387 submissions, a thorough underst
Page 389 and 390:
389 Agreement. As the 1892 and 1924
Page 391 and 392:
391 distribution in Kerala was such
Page 393 and 394:
393 348. He also challenged the Tri
Page 395 and 396:
395 V. Submissions urged on behalf
Page 397 and 398:
397 water included groundwater, no
Page 399 and 400:
399 further there is a constitution
Page 401 and 402:
401 another v. State of Karnataka 5
Page 403 and 404:
403 said Agreement, the accusations
Page 405 and 406:
405 of water by each basin State, s
Page 407 and 408:
407 some identifiable flexibility o
Page 409 and 410:
409 basis of the whole. The above f
Page 411 and 412:
411 any interconnections between aq
Page 413 and 414:
413 in development planning, the po
Page 415 and 416:
415 the needs of the State concerne
Page 417 and 418:
417 production, was also underlined
Page 419 and 420:
419 eventualities. Having regard to
Page 421 and 422:
421 adjustment of the available res
Page 423 and 424:
423 Puducherry, Mysore and Kerala h
Page 425 and 426:
425 the State of Tamil Nadu, Karnat
Page 427 and 428:
427 (v) No lift schemes. 382. As th
Page 429 and 430:
429 the Tribunal on the basis of th
Page 431 and 432:
431 equally balanced and to reitera
Page 433 and 434:
433 relieved the Union Territory of
Page 435 and 436:
435 Resources of Cauvery Delta esti
Page 437 and 438:
437 safe quantity to be accounted f
Page 439 and 440:
439 and the rest would return to th
Page 441 and 442:
441 census, district-wise and the a
Page 443 and 444:
443 sprawling, vibrant and a much a
Page 445 and 446:
445 6.52 TMC for existing water sch
Page 447 and 448:
447 resources by human beings compo
Page 449 and 450:
449 UT of Pondicherry : 7 TMC Envir
Page 451 and 452:
451 own use during any water year s
Page 453 and 454:
453 (c) the holding of a minimum nu
Page 455 and 456:
455 discretion to be exercised by i
Page 457 and 458:
457 framing the scheme is exclusive
Page 459 and 460:
459 (iv) The newly formed States ne
Page 461 and 462:
461 (ix) We do not find any pervers
Page 463 and 464:
463 (xvii) In totality, we deem it
Page 465:
465 407. In the ultimate analysis,
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CAUVERY ISSUE - SUPREME COURT JURISDICTION 16-Feb-2018

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